IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS 

OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR 

CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN 

UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A 

COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG 

WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO 

THE ACTION. 
RENDERED: JUNE 13, 2024

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0384-MR

EDWIN KNOX APPELLANT 

V. 

ON APPEAL FROM HICKMAN CIRCUIT COURT

HONORABLE TIMOTHY A. LANGFORD, JUDGE

NO. 18-CR-00020

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART AND REVERSING IN PART

Edwin Knox appeals from his convictions by the Hickman Circuit Court 

after a jury trial on first-degree rape, first-degree sodomy, first-degree unlawful 

transaction with a minor under sixteen (UTM), and two counts of first-degree 

sexual abuse of a minor under sixteen, resulting in a total sentence of thirty 

years. On appeal, Knox argues the trial court committed palpable error by 

utilizing deficient jury instructions which allowed for double jeopardy 

violations, impermissible bolstering testimony, and cumulative error. We agree

that double jeopardy violations occurred in Knox’s trial. 

 The jury instructions in Knox’s trial were deficient in failing to identify 

which particular act aligned with each charged count and failing to identify, or 

recognize, lesser included offenses in the instructions. The risk of double 

jeopardy errors inherent in the instructions is obvious and otherwise palpable.
2

Under the circumstance of this case, we have determined that Knox’s 

convictions for UTM and sexual abuse must be reversed. However, the rape 

and sodomy convictions and their concurrent twenty year sentences remain 

valid and we affirm them. 

I. FACTUAL AND LEGAL BACKGROUND

The mother in this matter (Mother)1 has four daughters. Three of these 

daughters. Kelli, Kimberly, and Janice,2 would later make allegations against 

Knox. Kelli and Kimberly are the oldest of the girls and are twins. The twins 

were twelve years old but “almost thirteen,” in April 2017, when Mother moved 

her family into Knox’s residence. Mother had met Knox when he was working 

as a physical therapist treating Mother’s sister. Knox is not related to any of 

the children. 

In January 2018, Mother and her daughters moved out of Knox’s 

residence after police responded to an altercation between Mother and Knox at 

1 The mother of these four children will only be referenced as “Mother” to avoid 

risk of identifying any of her four children. 

2 The victims in this case are all sisters and were each minors when these 

crimes allegedly occurred. Significant confusion arose during the prosecution of this 

action because the twin sisters shared the same initials. The trial court would 

eventually refer to the twins by adding both the second and third letters of each of 

their first names which lessened the confusion but made their first names clearly 

known. Repeating the use of those initials within this opinion would unnecessarily 

expose the minors’ identities. We have therefore adopted pseudonyms for the sisters 

and refer to the twin who is the primary focus of this appeal as “Kelli” “Ke.B” and/or

“Kel.B.” and her twin sister as “Kimberly,” “KiB,” and/or “Kim.B” with their younger 

sister being “Janice” or “J.B.” 

In matters such as this where using the initials of child victims creates, or may 

cause confusion, we encourage courts to consider the use of pseudonyms like we have 

utilized here to distinguish twin girls with the same initials. In other matters using 

clear identifiers such as “Twelve-Year-Old Girl” or “Seven-Year-Old Boy,” may be more 

appropriate. 
3

the residence. According to Mother, after her family had left the residence Knox 

asked to see, or offered to watch, all four daughters but only Kelli wanted to 

visit him. Kelli however testified that her mother forced her, but none of her 

sisters, to visit Knox. The number of times Kelli visited Knox was uncertain. 

Approximately six months after the family left Knox’s residence, Kelli

informed her grandmother and aunt that she had been sexually abused by 

Knox both when she was living with Knox and afterward during visits. Mother

testified that she had no idea that Knox had committed any inappropriate acts

with any of her children. At trial, Kimberly stated that she had never informed 

her mother about any abuse because she had been “taken advantage of” prior 

to living with Knox and had told her mother, but that her mother “did nothing.” 

After Kelli came forward, Kimberly later informed authorities that she too had 

been violated once by Knox when the family was living with him. On one 

occasion Knox had tried to grab the inside of Kimberly’s thigh, and then one of 

her breasts, before Kimberly pushed him away. Although she refused to testify 

at either of Knox’s subsequent trials, their sister Janice made an allegation 

against Knox as well. 

The confusing facts—there were three minor victims, two of the victims 

had the same initials and were twins, there were two different time periods 

during which crimes allegedly occurred, there were multiple and varying 

criminal acts alleged, and the alleged sexual acts could each be prosecuted 

under more than one criminal statute—led to an array of inconsistent charged 

offenses. This plagued the criminal action throughout Knox’s prosecution. 
4

The matter was investigated by the Kentucky State Police and a criminal 

complaint was filed on August 30, 2018, alleging there were two victims (not 

identified) of Knox’s abuse. One victim (presumably Kelli) reported she was 

twelve years old when: (1) Knox forcibly pulled down her pants without her 

consent and “penetrated her vagina with the head of his penis”; (2) “she was 

told to put her mouth on the penis of the defendant”; and (3) “over four more 

incidents where the defendant touched her vagina and/or she was told to grab 

the defendant’s penis for sexual gratification.” The second victim (presumably 

Janice) reported that when she was eleven years old, she was awakened one 

night by Knox pulling at her legs and that he “put his hand under her pants 

but over her underwear.” A uniform citation was generated and filed on 

September 4, 2018, with four charges: (1) Rape, first-degree; (2) Sodomy, firstdegree; (3) Sexual Abuse, 

first-degree; and (4) Sexual Abuse, first-degree, victim under twelve years of 

age.

However, the Hickman County grand jury would return a nine-count

indictment against Knox. The two victims in this indictment were now 

identified as “[K.B.]” (initials shared by Kelli and Kimberly) and “[J.B.]” The 

indictment incorporated the originally charged offenses of sodomy and rape but 

now there were four counts of sexual abuse regarding K.B., one count of sexual 

abuse regarding Janice, and two counts of UTM, one count each for K.B. and 

Janice. 
5

At this juncture there were seven charged offenses relating to K.B. 

(presumably Kelli) and two regarding Janice. All counts stated that the covered 

time period was between the “1st day of September 2016 and the 31st day of 

May 2018” which covered both the period when the sisters lived with Knox and 

the subsequent period when only Kelli visited him. 

 On May 21, 2019, after two scheduled trials had been continued, the 

Commonwealth moved to convene a special grand jury stating that during 

recent preparations for trial, it was discovered that “a third victim, [K.B.] who is 

the twin sister of [K.B.]” had disclosed sexual abuse. 

On July 23, 2019, the grand jury returned a “new” indictment which 

then identified the victims as “[J.B.],” and (using three initials now) “[Ke.B.]”

and “[Ki.B.]” to distinguish the twins from one another.3 Even though Kimberly

had been added as a victim, this indictment again had nine counts. This 

indictment now charged Knox with rape, sodomy, UTM, and three counts of 

sexual abuse regarding Kelli (six charged offenses now instead of seven); one 

count of sexual abuse regarding Kimberly; and one count each of sexual abuse 

and UTM regarding Janice. 

Problematically, both indictments only couched the offenses in terms of 

“sexual intercourse,” “deviant sexual intercourse,” “sexual contact” or “illegal 

sexual activity” without any description whatsoever of what Knox had 

3 The trial court would ultimately use four initials to identify each twin and we 

follow suit substituting “[Kel.B.]” for Kelli and “[Kim.B.]” for Kimberly where needed to 

more closely mirror the record. 
6

specifically done to commit each offense during the nine-month period covered 

in the indictment. This lack of specificity would never be remedied. 

Mother was also charged with human trafficking and endangering the 

welfare of a child. Both Knox and Mother were tried as co-defendants by a jury 

on January 24, 2020. Janice did not testify, and a directed verdict was granted 

regarding the two counts concerning her. The jury ultimately deadlocked, and a 

mistrial was declared.

Prior to the second trial, Mother pled guilty to two counts of wanton 

endangerment and testified in Knox’s second trial which began on April 5, 

2022. Immediately prior to the trial commencing, a conference was held in 

chambers and there was discussion about the as-yet to be completed jury 

instructions and the initials that would be used for the minor victims. The trial

judge also recognized risks associated with the multiple charges and multiple 

victims and advised both counsel that there needed to be clarity in the final 

instructions stating:

We just need to be sure they [the jury] understand who they are 

talking about and there may be some differentiation like in the 

green room, in the bathroom, in the dining room, I’ve forgotten 

the facts of the case in terms of where it happened, but whatever 

we can put so it’s clear that the jury is making a decision on that 

particular charge. 

That advice went unheeded by the Commonwealth and Knox’s counsel.

At the conclusion of the evidence, the trial court granted a directed 

verdict on the two counts (UTM and sexual abuse) related to Janice because 

she refused to testify. 
7

The jury was erroneously given instructions for UTM regarding Kimberly

even though Knox had not been indicted for such. The jury acquitted Knox of 

sexual abuse (the actual indicted offense) regarding Kimberly but convicted 

him of UTM under the instruction given to them in error. Only after the trial

did the parties recognize this error. Subsequently, the trial court “dismissed” 

that conviction. 

With the charges regarding both Janice and Kimberly all being resolved

in Knox’s favor, we are able to focus on those convictions related to Kelli.

Regarding Kelli, the jury convicted Knox of: (1) rape in the first-degree 

(Kentucky Revised Statutes (KRS) 510.040); (2) sodomy in the first-degree (KRS 

510.070); (3) UTM under the age of sixteen (KRS 530.064(2)(b)); (4) one count of 

sexual abuse in the first-degree of a minor under the age of sixteen (KRS 

510.110(3)(c)(1)) for an act occurring while Kelli was residing with Knox; and (5) 

one count of sexual abuse in the first-degree of a minor under the age of 

sixteen (KRS 510.110(3)(c)(1)) for an act occurring while Kelli was visiting Knox 

after her family had left his residence. 

The trial court sentenced Knox in accordance with the jury’s 

recommendation to a total of thirty years in prison consisting of twenty-year 

concurrent sentences for each of the three Class B felony convictions (rape, 

sodomy, and UTM) and five-year consecutive sentences for the two Class D 

felony convictions for sexual abuse. Knox appeals to this Court as a matter of 

right.
8

II. LEGAL ANALYSIS

Knox’s arguments are: (1) a double jeopardy violation, couched in terms 

of “inconsistent findings of fact,” occurred relative to his rape, sodomy and 

unlawful transaction with a minor convictions; (2) a double jeopardy violation 

occurred regarding his rape, sodomy and sexual abuse convictions; (3) another 

double jeopardy violation occurred because sexual abuse is a lesser included 

offense of unlawful transaction with a minor; (4) Mother impermissibly 

bolstered her daughters’ testimony; and (5) cumulative error rendered the trial 

fundamentally unfair. 

None of these alleged errors were preserved by a contemporaneous 

objection. Consequently, we may only afford relief to Knox upon satisfaction of 

the rigorous palpable error standard found in Kentucky Rules of Criminal 

Procedure (RCr) 10.26, which states: “A palpable error which affects the 

substantial rights of a party may be considered . . . by an appellate court on 

appeal, even though insufficiently raised or preserved for review, and 

appropriate relief may be granted upon a determination that manifest injustice 

has resulted from the error.”

As summarized in Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 

2006):

For an error to be palpable, it must be easily perceptible, plain, 

obvious and readily noticeable. A palpable error must involve 

prejudice more egregious than that occurring in reversible error[.]

A palpable error must be so grave in nature that if it were 

uncorrected, it would seriously affect the fairness of the 

proceedings. Thus, what a palpable error analysis boils down to is 

whether the reviewing court believes there is a substantial 

possibility that the result in the case would have been different 
9

without the error. If not, the error cannot be palpable. 

(Internal citations and quotation marks omitted).

In Johnson v. Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023), a matter 

concerning unanimity errors, we most recently phrased our palpable error 

standard of review as follows:

Only if, upon review, a court can conclude the error is so 

manifest, fundamental and unambiguous that it threatens the 

integrity of the judicial process, will reversal be warranted. It 

should be so egregious that it jumps off the page . . . and cries 

out for relief.

(Internal citations and quotation marks omitted). 

When presented with jury instructions lacking specificity, we have 

repeatedly held “it is now settled that a trial court errs in a case involving 

multiple charges if its instructions to the jury fail to factually differentiate 

between the separate offenses according to the evidence.” Miller v.

Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009). If jury instructions do not 

include factual differentiation between the charges, this constitutes reversible 

error, even if the error is unpreserved. Id. See also Harp v. Commonwealth, 266 

S.W.3d 813 (Ky. 2008); Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008) 

(overruled on other grounds by Harp, 266 S.W.3d at 813); and Miller v.

Commonwealth, 77 S.W.3d 566 (Ky. 2002).

This case demonstrates circumstances where, even without objections 

being made at trial, otherwise potentially reversible errors rise to the level of 

palpable error. 
10

A. Were Knox’s Convictions the Result of Palpable Double Jeopardy Errors 

Caused by the Jury Instructions? – Unpreserved. 

We consider the first three issues raised by Knox together as they all 

ultimately relate to the language, and lack thereof, contained in the jury 

instructions and the risk of double jeopardy errors attendant thereto. 

In Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002), we stated 

that regardless of whether such issues were viewed as:

[O]nes of insufficient evidence, or double jeopardy, or denials of 

a unanimous verdict, when multiple offenses are charged in a 

single indictment, the Commonwealth must introduce evidence 

sufficient to prove each offense and to differentiate each count 

from the others, and the jury must be separately instructed on 

each charged offense. 

(Emphasis added). 

We have stated previously in a case presenting an unpreserved error 

regarding a unanimous jury, that courts must “plumb the depths of the 

proceeding” and “scrutinize the factual idiosyncrasies of the individual case,” 

and that is what we are compelled to do here. Martin v. Commonwealth, 207 

S.W.3d 1, 3 (Ky. 2006). An analysis of the instructions in this case will reveal 

how failures to differentiate alleged acts from charged offenses will lead to 

double jeopardy violations and palpable error. 
11

1. Kelli’s Testimony

Kelli testified to Knox committing the following acts: (1) while she was 

living with Knox he came into her room, lifted her blouse, and touched her 

breast; (2) once, when the rest of her family was attending a soccer game, he 

pulled her pants down and unsuccessfully attempted to put his penis into her 

vagina and told her she needed to “stretch it out;” (3) later on the same night 

he made her do “the 69” and perform oral sex on him; (4) prior to her family 

leaving Knox’s residence, she also stated that one time he put a cream on her 

vagina which burned; (5) during her subsequent visits to Knox, she testified 

that he came into the bathroom while she was bathing and refused to leave 

after she asked him to do so; and (6) Knox had her give him oral sex an 

unknown number of times during these later visits to his home. There were no 

witnesses to any of these encounters and no physical evidence. The difficulty 

moving forward will be attempting to positively “match” each of these 

allegations to any of Knox’s convictions. 

2. The Jury Instructions and Closing Arguments 

The instructions tendered to the jury were as follows: 

a. Rape, First-Degree: 

The instruction for rape in the first-degree (Instruction No. 8), stated:

You, the Jury, will find the Defendant, Edwin A. Knox, 

guilty under this Instruction if, and only if, you believe from the 

evidence beyond a reasonable doubt all of the following:

A. That in this county on or between the 1st day of 

April, 2017 and the 31st day of January, 2018, and 

before the finding of the Indictment herein, the Defendant, 
12

Edwin A. Knox, engaged in sexual intercourse with 

[Kel.B.];

AND

B. That the Defendant, Edwin A. Knox, did so by 

forcible compulsion. 

(Emphasis added).

The date range of April 1, 2017, to January 21, 2018, covered only the 

period of time when Kelli was residing in Knox’s home with her mother and 

sisters. The language in this instruction comports with KRS 510.040(1)(a) for

the offense of rape in the first-degree of a victim aged twelve or older. Neither

the term “sexual intercourse” nor “forcible compulsion” was defined within 

Instruction No. 8. All definitions were combined on one page preceding each 

criminal count in Instruction No. 5. 

In conformity with KRS 510.010(8), the definition of sexual intercourse in 

Instruction No. 5 was given as:

Mean[ing] sexual intercourse in its ordinary sense and includes 

penetration of the sex organs of one person by any body part or 

a foreign object manipulated by another person. “Sexual 

intercourse” occurs upon any penetration, however slight; 

emission is not required. Sexual intercourse does not include 

penetration of the sex organ by any body part or a foreign object 

in the course of the performance of generally recognized healthcare practices. 

Instruction No. 5 also gave a definition of forcible compulsion in accord 

with KRS 510.010(2) as “[m]ean[ing] physical force or threat of physical force, 

express or implied, which places a person in fear of immediate death or 

physical injury to self or another person. Physical resistance on the part of the 
13

person subjected to forcible compulsion is not necessary to meet this 

definition.” 

b. Sodomy, First-Degree: 

The instruction for sodomy in the first-degree stated:

You, the Jury, will find the Defendant, Edwin A. Knox, 

guilty of First-Degree Sodomy under this Instruction if, and only 

if, you believe from the evidence beyond a reasonable doubt all 

of the following:

A. That in this county on or between the 1st day of 

April, 2017 and the 31st day of January, 2018, and 

before the finding of the Indictment herein, the Defendant, 

Edwin A. Knox, engaged in deviate sexual intercourse

with [Kel.B.];

AND

B. That the Defendant, Edwin A. Knox, did so by 

forcible compulsion. 

(Emphasis added).

The only substantive difference in the rape and sodomy instructions was 

the addition of the term “deviate.” Like the rape charge, neither deviate sexual 

intercourse nor forcible compulsion were defined within the stand-alone 

instruction. We know that the jury was, at least temporarily, confused by this 

instruction because it sent a note to the trial court during deliberations asking 

“What is sodomy[?]” 

Deviate Sexual Intercourse was defined in Instruction No. 5 in accord 

with KRS 510.010(1) as:

Mean[ing] any act of sexual gratification involving the sex organs 

of one person and the mouth or anus of another; or penetration 

of the anus of one person by any body part or a foreign object 

manipulated by another person. “Deviate sexual intercourse”
14

does not include penetration of the anus by any body part or a 

foreign object in the course of the performance of generally 

recognized health-care practices[.] 

c. Unlawful Transaction with a Minor, First-Degree:

Unlawful transaction with a minor was set forth under Jury Instruction 

No. 12. Unlike the rape and sodomy instructions, this instruction gave a date 

range which incorporated not only the time period of Kelli’s residence with 

Knox, but also the date range of her visits to him. The instruction read: 

You will find the Defendant, Edwin A. Knox, guilty under 

this Instruction if, and only if, you believe from the evidence 

beyond a reasonable doubt all of the following:

A. That in this county on or between the 1st day of 

April, 2017 and the 31st day of May, 2018, and before 

the finding of the Indictment herein, the Defendant, Edwin 

A. Knox, knowingly induced, assisted or caused the minor, 

[Kel.B.] to engage in illegal sexual acts; 

AND

B. That the victim, [Kel.B.] was less than 16 years of age, 

AND

C. That the Defendant, Edwin A. Knox, knew the minor, 

[Kel.B.] was less than 16 years of age. 

(Emphasis added). 

The definition of “illegal sexual activity” was given by the trial court 

separately in Instruction No. 5 as “[a]ny and all consensual sexual contact

with a minor under the age of Sixteen (16).” (Emphasis added). 

d. Sexual Abuse, First-Degree:

The two Class D felony counts of sexual abuse in the first-degree

(Instructions No. 10 and 11) were distinguished in the jury instructions by
15

language regarding when (either during Kelli’s residency with Knox or during

her visits to him) unlawful sexual contact allegedly occurred. 

Instruction No. 10 stated:

You, the Jury, will find the Defendant, Edwin A. Knox, 

guilty under this Instruction if, and only if, you believe from the 

evidence beyond a reasonable doubt all of the following:

A. That in this county on or between the 1st day of 

April, 2017 and the 31st day of January, 2018, before 

the finding of the Indictment herein, the Defendant, Edwin 

A. Knox, subjected [Kel.B.] to sexual contact (while 

residing in the Defendant’s home); 

AND

B. That at the time of such occurrence, [Kel.B.] was less 

than 16 years of age;

AND

That at the time of the occurrence of (sic) the Defendant, 

Edwin A. Knox, was 21 years of age or older.

(Emphasis added, both bolded and underlined). 

Instruction No. 11 was identical except for giving the date range of

“between the 21st day of January, 2018 and the 31st day of May, 2018” with

the additional language of “(while [Kel.B.] was visiting the home)[.]”

Sexual contact was defined in Instruction No. 5 as “any touching of the

sexual or other intimate parts of a person do (sic) for purpose of gratifying the

sexual desire of either party.” (Emphasis added). See KRS 510.010(7). 

During its closing argument, the Commonwealth did not review Kelli’s 

testimony regarding the criminal sexual acts she testified occurred. Instead, 

the Commonwealth focused on rebutting Knox’s claim that he had a parentallike relationship with the girls, countering that he took these actions to groom 
16

the girls. Therefore, there was not even an attempt to clarify which criminal 

sexual act matched up with each indicted offense.4

No attempt was made by the Commonwealth in its closing argument to 

clarify which criminal sexual act matched up to each of the charged offenses. 

The Commonwealth also did not state which of the acts Kelli testified to were 

the crimes for which Knox had been indicted. 

3. Double Jeopardy 

The Double Jeopardy Clause contained in the Fifth Amendment to the 

United States Constitution guarantees that no person shall “be subject for the 

same offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. 

Similarly, Section 13 of the Kentucky Constitution ensures no person shall “be 

twice put in jeopardy of his life or limb” for the same offense. 

Unpreserved double jeopardy violations are subject in Kentucky to 

palpable error review, but we have long held convictions tainted by double

jeopardy cannot stand. Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky. 

2009). A double jeopardy violation satisfies the palpable error rule because it 

necessarily requires a different result. Id. In other words, a conviction tainted 

by double jeopardy results in manifest injustice. Id.

4 We note that the Commonwealth acting to clarify jury instructions in its 

closing argument cannot cure a properly preserved objection regarding instructional 

errors. Harp v. Commonwealth, 266 S.W.3d 813, 820 (Ky. 2008). However, such 

clarification could potentially help to render such an error harmless. See generally 

Miller v. Commonwealth, 283 S.W.3d 690, 695-96 (Ky. 2009) (quoting Harp, 266 

S.W.3d at 818) (explaining that a failure to differentiate which act each jury 

instruction relates to can constitute palpable error if the Commonwealth has failed to 

meet its burden to establish that “no prejudice resulted from the error”).
17

In conducting our double jeopardy review, we must look to see whether 

or not the jury did, or likely could have, convicted Knox of two separate 

criminal offenses based on one criminal act. For instance, did the jury 

determine that when Knox committed the singular act of attempting to put his 

penis into Kelli’s vagina, that he was guilty of rape (prohibiting “sexual 

intercourse”) and sexual abuse (prohibiting “sexual abuse”) and unlawful 

transaction with a minor (prohibiting “illegal sexual activity”)? 

Further complicating our analysis further is the fact that there was a 

failure of the instructions to differentiate between the element of “forcible 

compulsion” required for both the rape and sodomy convictions,5 which is not

an element of the crimes of UTM as prosecuted here (criminalizing any 

otherwise consensual, albeit unlawful, sexual acts6 with persons under the age 

of sixteen) or sexual abuse. Under the instructions given this jury for UTM and 

sexual abuse, any sexual contact was sufficient to convict Knox only because 

Kelli was under the age of sixteen. 

5 KRS 510.010(2):

“Forcible compulsion” means physical force or threat of physical force, 

express or implied, which places a person in fear of immediate death, 

physical injury to self or another person, fear of the immediate kidnap 

of self or another person, or fear of any offense under this chapter. 

Physical resistance on the part of the victim shall not be necessary to 

meet this definition.

6 KRS 510.010 does not offer a definition for “illegal sexual activity” but we have 

determined that to complete the offense of unlawful transaction with a minor in the 

first-degree, the minor must consent to and actively participate in the activity. The 

term “consent” as used here, does not mean legal consent, but only means to willingly 

engage in the activity. See Combs v. Commonwealth, 198 S.W.3d 574, 578 (Ky. 2006), 

overruled on other grounds by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020).
18

Knox points out the inconsistency of the jury making “inconsistent 

findings of fact” when determining Knox to be guilty of both “forcibly” raping 

and sodomizing Kelli but also engaging in other—or possibly the same—

“consensual” sex acts with Kelli. It is important to note here that, assuming the 

jury followed the instructions as tendered, it decided that “forcible compulsion” 

existed regarding the rape and sodomy charges, but then curiously determined 

that such forcible compulsion did not occur regarding either the UTM charge 

(“all consensual contact”) for which they convicted Knox, and was unnecessary 

(since it was not stated) for the two sexual abuse convictions (“any touching of 

the sexual or other intimate parts . . .”). 

Additionally, the instructions do not actually distinguish between UTM (a 

Class B felony) and sexual abuse (a Class D felony).7 By not specifying which 

act Knox was being accused of, Knox was again susceptible of being convicted 

of both charges based on the exact same event including those actions for 

which the jury had already convicted Knox of rape or sodomy. Under sexual 

abuse, Knox could be found guilty of “sexual contact” with Kelli because she 

was under sixteen, while under UTM he could be found guilty of “illegal sex 

acts” which are statutorily defined as illegal only because she was under 

sixteen. 

7 We have previously discussed the “overlap” between Kentucky’s UTM and 

sexual abuse statutes and stated that, “[t]he General Assembly has recognized that 

complexity by defining several sex offenses broadly and by allowing some degree of 

overlap among them. Where conduct implicates more than one offense, fitting the 

charge (if any) to the conduct is a matter of prosecutorial and grand jury discretion. 

Hale v. Commonwealth, 396 S.W.3d 841, 849 (Ky. 2013).
19

The fact that sexual abuse in the first-degree can be a lesser included 

offense to both rape in the first-degree8 and sodomy in the first-degree9

highlights the general similarities between the elements of the various sexual 

crimes and the Commonwealth’s concomitant duty to distinguish between the 

specific facts it alleges prove each of the similar crimes charged. 

The jury, as instructed, could not have known whether the UTM and 

sexual abuse instructions pertained to their own set of unique alleged facts and 

which act was matched up to each instruction, or were “alternative” or 

“additional” charges of rape and sodomy for which they could also convict 

Knox. 

The instructions, couched in general terms of “sexual contact” without 

differentiating the specific act alleged for each count of UTM and sexual abuse 

from the “other” acts which the jury found to constitute rape and sodomy, 

permitted the jury to find Knox guilty twice for the same act, e.g., one act 

constituting rape and same act also constituting sexual abuse and/or UTM. 

See Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky.1993). The 

instructions furthermore do not advise the jury that one singular act cannot be 

8 “If there is evidence that sexual intercourse did not occur, an instruction on 

First-Degree Sexual Abuse should be given as a lesser included offense.” 1 William S. 

Cooper & Donald P. Cetrulo, Kentucky Instructions to Juries, Criminal § 4.22 (6th ed. 

2016) (May 2016 supp.). 

9 “If there is evidence that forcible compulsion did not occur and the victim was 

less than sixteen years of age, instructions on Second-Degree Sodomy, Third-Degree 

Sodomy, Sexual Misconduct, Second-Degree Sexual Abuse and/or Third-Degree 

Sexual Abuse.” Id. at § 4.34. 
20

the basis for convicting Knox of multiple offenses.10 For example, if the jury 

was convinced that Knox had penetrated Kelli, it could have convicted Knox of 

rape, UTM and sexual abuse based upon that one act. Also, based on the 

instructions given, each of the acts of sexual contact described by Kelli could 

have each constituted both sexual abuse and UTM. 

The lack of specificity in the jury instructions also implicate unanimity 

errors. In Hampton v. Commonwealth, 666 S.W.2d 737, 740 (Ky. 1984), we

determined that proof of the precise dates on which the offenses were 

committed is not required of a child sexual abuse victim where the evidence is 

“ample to separately identify the various offenses charged.” Id. at 740. See also

Garrett v. Commonwealth, 48 S.W.3d 6, 10 (Ky. 2001); Stringer v.

Commonwealth, 956 S.W.2d 883, 886 (Ky. 1997). In each of those cases 

though, while the child victims may not have been able testify to a date or time 

frame with precision, they did testify to, and described, a distinct factual basis 

for each distinct charge so that the jury could determine, in each instance, 

whether each separately charged criminal offense had been committed. We do 

not have that here. Here there is a lack of “connectivity” in this case between 

the testimony, the jury instructions, and the resultant convictions. Regarding 

UTM, the instruction did not specify a particular sex act and any of the sex 

10 Only in one context, sexual abuse, was a separate jury instruction

(Instruction No. 4) given stating: “[t]he Court instructs the Jury that in order to convict

the Defendant, Edwin A. Knox, of sexual abuse, all 12 jurors must agree that the

Defendant committed the same act.” Why this type of instruction was not given

applicable to all counts is unknown. Its mention regarding only sexual abuse only

adds to the confusion. 
21

acts Kelli described could have formed the basis for the conviction. The 

instructions also did not differentiate any act from those for which Knox was 

convicted of sexual abuse. The phrase in the statute, “any. . . sexual contact,” 

is explicitly broad enough to include any and all sexual contact alleged between 

Knox and Kelli. Further complicating this issue is the fact that the date range 

covered in the UTM instruction was not limited to either the acts committed 

when Kelli lived with Knox or the later period of time when she visited him but 

encompassed both. 

With the broad date range found in the instruction and the number of 

sexual acts alleged coupled with the failure of this instruction to specify which

of the alleged acts constituted the offense, this Court is left without any ability 

to determine whether or not the jurors all agreed that any one specific violation 

occurred. Some jurors may have determined Knox touched Kelli’s vagina but 

not believed that Knox forced her to perform oral sex, while other jurors may 

have determined that Knox had her perform oral sex but did not touch her 

vagina. Even with these disagreements, under the instructions as they were 

given, the jurors could still have “unanimously” convicted Knox of UTM 

presenting clear unanimity errors which could have easily been avoided. 

The trial court, the Commonwealth, and Knox’s counsel could have 

ensured that the instructions comported with the proof presented during the 

guilt phase of the trial. Instead, significantly deficient instructions were given. 

We have a situation here where it cannot be ignored that the jury 

instructions did not differentiate between the separate alleged offenses. The 
22

jury instructions, like the indictments before, only reference the broad 

definitional terms found in their respective criminal statutes without even 

approximately specifying what Knox allegedly did for each criminal act. The 

Commonwealth did not attempt to remedy this omission during the 

presentation of its case against Knox or even within its closing argument. In 

the simplest terms, the instructions failed to distinguish what alleged criminal 

act “matched up” to any of the charged offenses creating significant uncertainty 

as to whether the jury convicted Knox of UTM and sexual abuse in addition to

rape and sodomy based on the same act(s). 

Finding errors within the instructions regarding the UTM and sexual 

abuse convictions does not however mean that Knox’s convictions for rape or 

sodomy must also be reversed. This Court has repeatedly held “[t]he remedy for 

these types of double jeopardy violations is to vacate the conviction for the 

lesser offense.” Lloyd v. Commonwealth, 324 S.W.3d 384, 391 n. 26 (Ky.

2010); Brown v. Commonwealth, 297 S.W.3d 557, 562–563 (Ky. 2009) (“Given 

that first-degree fleeing or evading police is a felony and that second-degree 

wanton endangerment is a misdemeanor, the remedy is to vacate the lesser 

offenses of wanton endangerment”); Clark v. Commonwealth, 267 S.W.3d 668,

678 (Ky. 2008) (When a person is improperly convicted of two or more offenses 

arising “out of a single course of conduct and not requiring proof of a fact 

which the other does not[,]” the double jeopardy violation is remedied “by 

maintaining the more severe conviction and vacating the lesser” conviction).
23

Standing by themselves, we see no risk of error affecting either the rape 

or sodomy convictions. For rape, the jury was only presented with one episode 

of potential “sexual intercourse” occurring during the time Kelli resided with 

Knox and there was only one charge (rape) which contained the term “sexual 

intercourse.” Although the rape instruction does not state the specific act that 

Knox allegedly committed, or give an approximate date within the ten months 

covered, the date range that is stated covers only the months when Kelli lived 

in Knox’s residence so we may confine our analysis to Knox’s misconduct 

during that period. At trial, Kelli specifically testified that while she was living 

with Knox, and the rest of her family was attending a soccer game, he pulled 

her pants down and attempted to put his penis into her vagina unsuccessfully 

and told her she needed to “stretch it out.” The totality of the evidence 

presented at trial was sufficient to find Knox guilty of rape. His act of putting 

his penis into her vagina resulting in “any penetration, however slight[,]” 

supported the jury’s conclusion. KRS 510.010(8). Most importantly for this 

analysis, this was the only instance of Kelli testifying to an incident of “sexual 

intercourse” as defined in the instructions and the only time he tried to put his 

penis inside her. We can therefore discern no risk that the jury’s determination 

here was faulty. 

The same is true regarding Knox’s conviction for sodomy. The jury 

instruction here set the same time period for when Kelli resided with Knox and 

was otherwise identical to the rape instruction except for stating that Knox 

“engaged in deviate sexual intercourse with [Kelli].” Kelli testified that later the 
24

same night that Knox attempted to penetrate her, he made her do “the 69” and 

perform oral sex on him. Such act would constitute deviate sexual intercourse 

as “any act of sexual gratification involving the sex organs of one person . . . 

and the mouth of another . . . .” KRS 510.010(1). That incident was the only 

one that Kelli testified to regarding her mouth or Knox’s mouth ever contacting 

the other’s genitals while she resided with him. 

We affirm Knox’s convictions and sentences for rape and sodomy and 

vacate his convictions for the “lesser” offenses of unlawful transaction with a 

minor and sexual abuse. Knox’s total sentence of thirty years is reduced to 

twenty years with the reversal of his two sexual abuse convictions. For the 

sexual abuse convictions, Knox was sentenced to five years per conviction to 

run consecutively to his rape, sodomy and UTM convictions. The reversal of 

Knox’s UTM conviction does not affect Knox’s total sentence because the 

twenty-year sentence for UTM was to be served concurrently with the twentyyear sentences for rape and sodomy. 

B. Did the Commonwealth Commit Palpable Error by Offering Bolstering 

 Testimony from Mother? – Unpreserved. 

Knox also argues that it was palpable error for the trial court to permit 

the Commonwealth to ask Mother “[d]o you believe your children’s allegations?” 

Mother answered, “Yes, I do.” 

“We have consistently recognized that such testimony is highly 

prejudicial and unfairly bolsters the credibility of the allege victim.” Chavies, 

374 S.W.3d 313, 322 (Ky. 2012). However, “[I]f upon consideration of the whole 

case this court does not believe there is a substantial possibility that the result 
25

would have been any different, the irregularity will be held nonprejudicial.”

Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) (internal 

citation omitted).

This one question and answer was quite limited compared to the 

testimony elicited from Mother by Knox’s own counsel who revisited the topic to 

show the jury that Mother had previously denied believing abuse had occurred, 

contradicted any assertion that she’d walked in on, or in any way been aware 

of, Knox abusing any of the girls, and did not force Kelli to visit Knox. Although 

Mother’s testimony vouching for her daughters’ veracity was error, we are not 

persuaded that Mother’s affirmative response significantly affected the ultimate 

conclusions reached by the jury and therefore such error was harmless and 

certainly not palpable.

C. Did Cumulative Error Render the Trial Fundamentally Unfair? 

For his last argument, Knox asserts that when considering the combined 

errors cumulatively, his trial was fundamentally unfair citing to Brown v. 

Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010), for the proposition that 

“multiple errors, although harmless individually, may be deemed reversible if 

their cumulative effect is to render the trial fundamentally unfair.” 

While there were certainly “multiple errors” identified within the jury 

instructions in this matter, we have corrected those matters within our 

analysis of the double jeopardy issues presented and our determination to 

reverse Knox’s convictions for UTM and sexual abuse is sufficient and 
26

additionally reversing Knox’s convictions for rape and sodomy is not warranted 

here. 

III. CONCLUSION

The trial court committed palpable error by permitting significantly 

deficient instructions to be given to the jury. We vacate Knox’s conviction for 

Unlawful Transaction with a Minor (UTM) and both convictions for Sexual 

Abuse. 

We affirm Knox’s convictions for Rape and Sodomy and remand this 

matter to the Hickman Circuit Court for entry of judgment consistent with this 

opinion.

All sitting. VanMeter, C.J.; Keller, Lambert, and Thompson, JJ., concur.

Nickell, J., concurs in part and dissents in part by separate opinion in which 

Bisig, Conley, JJ., join.

NICKELL, J., CONCURRING IN PART, DISSENTING IN PART: I concur 

with majority opinion affirming Knox’s convictions for first-degree rape and 

first-degree sodomy. However, I respectfully dissent from the reversal of Knox’s 

convictions for first-degree unlawful transaction with a minor and two counts 

of first-degree sexual abuse. In my estimation, Knox has waived appellate

review of the purported defects in the jury instructions by inviting the alleged 

errors. Therefore, I concur in part and dissent in part.

Generally, a reviewing court will not permit a party to seek relief from an 

invited error. Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011) 

(citing Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). The law 
27

distinguishes “between forfeited errors, which are subject to plain error review, 

and waived errors, which are not[.]” Id. at 38; see also Gasaway v. 

Commonwealth, 671 S.W.3d 298, 313 (Ky. 2023). Invited errors constitute a 

waiver and are defined as “invitations that reflect the party’s knowing 

relinquishment of a right[.]” Quisenberry, 336 S.W.3d at 38 (citing United 

States v. Perez, 116 F.3d 840 (9th Cir. 1997)). In other words, “the defendant 

cannot well complain of being prejudiced by a situation that he or she has 

created.” 24 C.J.S. Criminal Procedure & Rights of Accused § 2548 (2024).

The invited error doctrine applies to defective jury instructions. Graves 

v. Commonwealth, 384 S.W.3d 144, 152 (Ky. 2012) (holding defendant’s 

affirmative agreement to a defective instruction constituted invited error). This 

Court has specifically refused to address an alleged unanimity error under the 

invited error doctrine where the defendant proposed a jury instruction 

“virtually identical to the one given by the trial court.” Rudd v. Commonwealth, 

584 S.W.3d 742, 746 (Ky. 2019). Similarly, a party’s litigation conduct may 

operate as a waiver of double jeopardy protection. See Couch v. Maricle, 998 

S.W.2d 469, 470 (Ky. 1999) (“[I]f the accused makes the motion for a mistrial, 

the accused is deemed to have waived his double jeopardy claim.”). 

Importantly, the protection of the Double Jeopardy Clause, “which guards 

against Government oppression, does not relieve a defendant from the 

consequences of his voluntary choice.” Currier v. Virginia, 585 U.S. 493, 502 

(2018) (quoting United States v. Scott, 437 U.S. 82, 99 (1976)). 
28

Prior to trial in the present matter, the trial court specifically mentioned 

the necessity for factual differentiation in the jury instructions and advised the 

parties that the instructions must be crafted “so it is clear that the jury is 

making a decision on that particular charge.” Upon the denial of Knox’s 

renewed motion for directed verdict, the trial court again emphasized the 

importance of factual differentiation in the instructions and remarked:

[u]ntil we work through these jury instructions and I’ve heard your 

all’s arguments with regard to how we are going to differentiate 

some of the charges, the Court has heard sufficient proof to find 

there is a factual question for the jury. . . . The motion for directed 

verdict is overruled at this point. However, you can renew it in 

regard to specific charges because we have 8 or 9 here . . . and I 

will be glad to rule on it at that time. The Court will take the 

motion under advisement for purposes of the record until we work 

through these jury instructions. Any objection if we work through 

the jury instructions off the record?

Neither party objected to discussing the content of the jury instructions off the 

record.11 After the instructions were completed, the parties reviewed them on 

the record in the presence of the trial court and declined to offer any proposed 

revisions or otherwise voice any objections. 

Thus, the present appeal does not involve the situation where the 

defendant’s failure to object resulted from a lurking prejudicial error that 

escaped the notice of the parties and trial court. On the contrary, the trial 

court ensured sufficient factual differentiation remained a primary 

consideration when the instructions were crafted. Although the parties’ 

11 Despite the parties’ consent to discuss the jury instructions off the record, I 

would note that documentation of these conferences facilitates meaningful appellate 

review. See Graves v. Commonwealth, 384 S.W.3d at 152.
29

subsequent discussion on factual differentiation was unrecorded, the lack of 

any objection after this issue was raised twice by the trial court convinces me 

that Knox’s litigation conduct was tantamount to affirmative assent to the 

instructions as written. 

Moreover, prejudice cannot be presumed by a silent record. Walker v. 

Commonwealth, 476 S.W.2d 630, 631 (Ky. 1972). Indeed, it is the appellant’s 

“duty to designate and file a record sufficient to enable the court to pass on the 

alleged errors.” Burberry v. Bridges, 427 S.W.2d 583, 585 (Ky. 1968). To hold 

otherwise would contradict this Court’s steadfast refusal to allow a defendant 

to inject reversible error into a proceeding by remaining idle in the face of 

unmistakable aggrievement. See Crutcher v. Commonwealth, 500 S.W.3d 811, 

815 (Ky. 2016); see also Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984) (“To 

countenance a setting aside of the verdicts in this case would place a premium 

on agreeable acquiescence to perceivable error as a weapon of appellate 

advocacy.”). Under our precedents on invited error, Knox should not be heard 

to complain when the trial court passed specifically upon the issue of sufficient 

factual differentiation with Knox’s input and without his objection. 

In Johnson v. Commonwealth, 676 S.W.3d 405, 414-15 (Ky. 2023), we 

recently abandoned our minority position deeming this type of instructional 

error to be a structural error mandating reversal. Nevertheless, the task of 

crafting instructions on multiple charges remains “pregnant with possibilities 

for error[.]” See United States v. U.S. Gypsum Co., 438 U.S. 422, 460 (1978).
30

Recognizing this risk, the trial court adroitly brought the issue of 

sufficient factual differentiation to the attention of the parties. Knox had every 

opportunity to address this known issue, but he did not, and thus indicated 

his affirmative assent by conduct. Moreover, Knox should not be permitted to 

“hide the ball” by failing to make a record of the pertinent discussions. In my 

view, an appellate court should not encourage tactics which “allow a litigant to 

lead a trial court down a primrose path and later, on appeal, profit from the 

invited error.” United States v. Gates, 709 F.3d 58, 63 (1st Cir. 2013). 

Therefore, I concur in part, dissent in part, and would affirm the judgment of 

the trial court in its entirety.

Bisig and Conley, JJ., join.

COUNSEL FOR APPELLANT:

Aaron Reed Baker

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Rachel A. Wright 

Assistant Solicitor General