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RENDERED: AUGUST 24, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0031-MR

FLOYD J. SEXTON APPELLANT

ON APPEAL FROM FLOYD CIRCUIT COURT

V. HONORABLE THOMAS M. SMITH, JUDGE 

NO. 14-CR-00216

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Floyd J. Sexton appeals as a matter of right1 from the Floyd Circuit Court 

judgment sentencing him to life in prison for his murder conviction. On 

appeal, he raises numerous evidentiary errors which he claims warrant

reversal of his conviction. After thorough review of the record and applicable 

law, we affirm.

I. Facts and Procedural Background

Sexton was convicted by a Floyd County jury for murdering Bill Collins 

with a .45 caliber pistol on November 5, 2014. Sexton’s motivation for the 

murder allegedly stemmed from a falling out between him and Collins, which 

1 KY. CONST. § 110(2)(b).
2

led to Collins being kicked out of the Anarchy Militia motorcycle club to which 

they both belonged, and of which Sexton was the president. After ejecting 

Collins from the biker club, Sexton gave Collins’ Anarchy Militia vest to the 

club’s prospective member, John Maggard. Sexton’s animosity toward Collins 

persisted, and he badgered a mutual friend of theirs, Jessica Battaglia, to bring 

Collins to him for a meeting. At one point before the meeting, Sexton told 

Battaglia that he had a “45 and a shovel” for Collins. 

On the morning of November 5, Collins and Battaglia met up with plans 

to spend the weekend together. Sexton messaged Battaglia, directing her to 

ask Collins if he had a gun. She did, and Collins indicated that he had a gun, 

but refused to show it to her. Battaglia continued to ask him to show it to her 

and Collins got angry, got out of her vehicle, and set out on foot.

Thereafter, Battaglia convened with Sexton, Maggard, Jennifer Jernigan

(Sexton’s girlfriend), and another mutual friend, Liz Robertson. Battaglia

informed them that Collins had set out on foot. It had begun to rain, and 

Battaglia contacted Collins and convinced him to let her pick him up. 

Battaglia and Robertson picked up Collins, and Battaglia told him she wanted 

to stop at an abandoned office building to pick up some drugs. This story 

about picking up drugs was a ruse concocted by Sexton to surreptitiously lure 

Collins to the building, where he would be waiting inside. Battaglia and 

Robertson both testified that Maggard never participated in the discussion to 

trap Collins.
3

Battaglia entered the building first, followed by Robertson, then Collins. 

Jernigan stayed in the car after seeing Sexton go into the building with his 

gun. When Collins spotted Sexton he said, “Oh it’s going to go like this,” and 

ran for the door. Maggard grabbed Collins by the shirt as he tried to run away

but Collins wriggled free and ran out the door into the parking lot. Sexton 

stood in the doorway and fired two shots from his .45 caliber pistol, striking 

Collins in the leg and torso. The shot to Collins’ torso was fatal. The bullet 

that passed through his chest was caught in his shirt and was discovered 

during the ensuing investigation. Two shell casings were found, both CCI 

brand .45 caliber, one of which had the initials “BC” written on it in black 

marker ink. Jernigan said that after the shooting, Sexton had told her he put 

Collins’ initials (BC) on the bullets. The bullet that passed through Collins’ leg 

was not found, but a hole in a nearby trailer indicated that it may have been 

caused by the bullet.

After shooting Collins, Sexton ordered everyone to get into Jernigan’s car 

and threatened them not to tell anyone what happened. Sexton smacked 

Jernigan in the head and told her if she ever ran again, he would kill her. He 

ordered Jernigan to drop off Battaglia and Robertson at the Coyote Den, a bar 

in Prestonsburg that they all frequented. Scared and frantic, Battaglia told the 

bartender what had happened. Battaglia later returned to the crime scene and 

talked with the police.

Meanwhile, Sexton, Jernigan and Maggard proceeded to a friend’s house. 

There, Sexton told Jernigan, “You know what kind of man you have – I’m a 
4

monster.” Maggard and his girlfriend left to retrieve some of Sexton’s and 

Jernigan’s belongings but were arrested at Jernigan’s house. When Sexton 

caught wind of the arrest, he and Jernigan picked up her son and fled the 

state, with Sexton’s son in tow. For months they traveled to numerous states 

relying on Sexton’s biker contacts to help them remain at large. Sexton 

repeatedly threatened to kill Jernigan and her son if they tried to leave. 

Jernigan testified that while at large, she and Sexton smoked large quantities 

of methamphetamine.

While on the run, Sexton devised a plan to cast another individual, Jody 

Gibson (who had the same type of gun as Sexton), as the perpetrator and 

persuaded Jernigan to adopt the story as well. Jernigan testified that Sexton 

used her phone to send Facebook messages from his “Jay Militia” Facebook 

account to his mother relaying that Gibson was the murderer and asking his 

mother to pass that information on to Detective Petrie. Apparently, Gibson had 

been arrested on unrelated charges in Virginia. Sexton told his mother that 

the .45 caliber pistol Gibson had on him was the murder weapon. However, at 

that point, information about the caliber of the murder weapon had not yet 

been released to the public. The weapon retrieved from Gibson was tested and 

later determined not to be the murder weapon.

Sexton’s last stop was a trailer hideout in Arizona. When Sexton left, he 

hid his .45 caliber pistol under the trailer and set the trailer on fire. Nearly two 

years later when police searched the remnants of the trailer, they were unable 

to locate the gun but found some of Sexton’s and Jernigan’s belongings, as well 
5

as live .45 caliber CCI brand ammunition which had the same markings and 

was factory-stamped by the same machine as the casings found at Collins’

murder scene.

In March 2015, Sexton was pulled over in Texas for a traffic violation and 

gave the officer a false name before correcting himself. After learning that 

Sexton was wanted for homicide in Kentucky, the officer placed him in custody 

where Sexton began divulging that he was part of a biker gang and wanted to 

speak with federal law enforcement to inform on the gang’s involvement in 

murders, drug trafficking and explosive trafficking. Sexton and Jernigan were 

extradited back to Kentucky, where Jernigan pled guilty to hindering 

prosecution. Up to his trial, Sexton maintained the Jody Gibson alternativeperpetrator story but after Jernigan refused to adopt it, he moved on to a

theory that Maggard shot Collins. 

In a joint trial, the jury was tasked with determining whether Sexton or 

Maggard shot Collins. At trial, Sexton, Battaglia, Robertson and Jernigan

testified. Sexton’s defense was that Maggard shot Collins and that Sexton only 

fled the state to avoid an arrest warrant stemming from his parole violation, not 

to elude a murder investigation. However, Battaglia and Robertson both 

testified to witnessing Sexton shoot Collins twice. Jernigan also pinned the 

murder on Sexton, although she did not witness the shooting. Jernigan 

testified that shortly after she heard two shots fired, everyone ran to her car 

and Sexton still had the gun in his hand. Battaglia said that after Sexton got 
6

into Jernigan’s car, she saw him place the gun under the seat. Maggard 

exercised his constitutional right to remain silent. 

Ultimately, the jury convicted Sexton of murder and acquitted Maggard 

of facilitation to murder. The trial court sentenced Sexton to life in prison, in 

accordance with the jury’s recommendation. This appeal followed.

II. Analysis

a. Evidence that Sexton’s prior incarceration led to him losing custody 

of his son was properly admitted.

This issue is preserved in part. The portion of Sexton’s mother’s 

testimony discussing his incarceration was not objected to and thus Sexton 

requests palpable error review of its admission.2 As to Sexton’s own testimony 

on cross-examination about why he lost custody of his child, defense counsel

did object to that and thus we review its admission under the abuse of 

discretion standard.3

At trial, the Commonwealth called Sexton’s mother, Lillie Adams, as a 

witness. On re-direct examination, the Commonwealth asked if she was 

2 Kentucky Rule of Criminal Procedure (RCr) 10.26 provides that “[a] palpable 

error which affects the substantial rights of a party may be considered by the court on 

motion for a new trial or 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.” “To discover 

manifest injustice, a reviewing court must plumb the depths of the proceeding . . . to 

determine whether the defect in the proceeding was shocking or jurisprudentially 

intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). In other words, 

the defect must be “so egregious that it jumps off the page ... and cries out for relief.” 

Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citation omitted).

3 On appeal, we review the trial court’s evidentiary ruling for an abuse of 

discretion. Lopez v. Commonwealth, 459 S.W.3d 867, 873 (Ky. 2015). An abuse of 

discretion occurs if the trial court’s decision was “arbitrary, unreasonable, unfair, or 

unsupported by sound legal principle.” Id. 
7

unhappy about Sexton’s son living with Sexton and Jernigan, and away from 

her, even prior to the shooting. Adams responded that a court had awarded 

Sexton custody of his son after not having custody “because he had got out of 

jail.” Adams elaborated that she had third-party custody because Sexton and 

his son were living with her while “he was on probation” and Sexton “was not 

allowed to leave for six months.” When Jernigan came and took Sexton and his 

son with her, “that broke his probation.” Defense counsel did not object to this 

testimony.

During direct examination of Sexton, he testified that Jernigan had 

ordered him to flee and that he had followed her orders because he feared she 

would cause him to lose custody of his son again if he did not. On cross, the 

Commonwealth asked why he had previously lost custody of his son, to which 

defense counsel objected. During the bench conference, defense counsel 

argued the Commonwealth was delving into matters that had nothing to do 

with this case and served only to cast Sexton in a negative light. The trial 

court overruled the objection, stating “I think he's [the prosecutor] allowed to 

ask, if he’s [Sexton] concerned about losing custody, why he lost custody to 

begin with.” When the Commonwealth asked Sexton again why he lost custody 

of his son, he replied that it was because he was incarcerated in the Clay 

County Detention Center in 2014. Defense counsel approached the bench and 

requested a mistrial, which the trial court denied.

Sexton now argues that neither his nor his mother’s testimony should 

have been admitted. Regarding his testimony, he argues that the 
8

Commonwealth eliciting that he lost custody of his son due to his incarceration 

amounted to inadmissible “other crimes” evidence in violation of KRE4 404(b). 

“Evidence which is not relevant is not admissible.” KRE 402. Relevant 

evidence is defined as “evidence having tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence.” KRE 401. Generally, 

evidence of “other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith.” KRE 

404(b). However, it may be admissible if “offered for some other purpose, such 

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, 

or absence of mistake or accident” or “[i]f so inextricably intertwined with other 

evidence essential to the case that separation of the two (2) could not be 

accomplished without serious adverse effect on the offering party.” KRE 

404(b)(1)-(2). The three-prong test of assessing the admissibility of other bad 

acts evidence under KRE 404(b) includes examining the relevance of the 

evidence, its probative value, and then balancing any prejudice associated with 

the other bad acts evidence against its probative value. Bell v. Commonwealth, 

875 S.W.2d 882, 889-91 (Ky. 1994).

Sexton argues that under the Bell test, his testimony was irrelevant 

because the reason he feared losing custody of his son during the timeline of 

this case was wholly independent of the reason he lost custody in the past. He 

4 Kentucky Rules of Evidence.
9

further asserts that the Commonwealth’s questioning deliberately informed the 

jury that he had committed other crimes or wrongs and that the resulting 

prejudice of such information was high, since the credibility of the witnesses 

was of utmost importance in what he characterizes as a “he said, she said” 

case.

Conversely, the Commonwealth argues that the questions about Sexton’s 

prior loss of custody were relevant to show his motive, intent, plan, and lack of 

mistake. At trial, Sexton claimed that Jernigan, Battaglia, Maggard, and to 

some extent Robertson, were behind the plot against Collins. As part of his 

attempt to separate himself from that alleged conspiracy, Sexton testified that 

he was forced to be in a relationship with Jernigan because he was scared 

Jernigan could pose as a social worker and affect custody of his son. In 

support of this theory, defense counsel called multiple witnesses at trial to 

corroborate Sexton’s claim that Jernigan had posed as a social worker before, 

had his son removed from his house, and threatened him with loss of custody 

again if he would not go with her.5 

Our review of the record shows that Sexton opened the door to his

custody issues and the Commonwealth’s follow-up question on why he lost 

custody was aimed at demonstrating Sexton’s intent and plan to blame the 

crime on others and at rebutting this part of his defense. The Commonwealth’s 

5 At trial, Sexton presented testimony that in October 2014, Jernigan had posed 

as a social worker, gone to Sexton’s mother’s house, summoned the police there, and 

removed Sexton’s son from the home. However, Jernigan denied the claim that she 

had posed as a social worker. 
10

questioning revealed that Sexton’s prior loss of custody was due to his 

incarceration, not because of Jernigan’s alleged ability to affect custody. The 

Commonwealth’s cross-examination on this issue was also relevant to rebut 

Sexton’s claim that Jernigan had conspired with others against him. “Evidence 

of collateral criminal conduct is admissible for purposes of rebutting a material 

contention of the defendant.” Brown v. Commonwealth, 983 S.W.2d 513, 516 

(Ky. 1999). Thus, the trial court did not abuse its discretion in allowing the 

Commonwealth to cross-examine Sexton on this issue. 

Furthermore, the admission of Sexton’s mother’s testimony was not 

error, let alone palpable error. Sexton argues that her testimony added to the 

cumulative damage to his character, but the record reveals otherwise. On redirect examination, Adams testified that prior to the shooting, Sexton had only 

recently received custody of his son. The Commonwealth asked about her 

thoughts on Jernigan and Sexton removing Sexton’s son from her house in 

October before the shooting occurred and she said, “We went to court in 

Whitesburg. The court [told] him [Sexton] he could have custody of [his son] 

because he hadn’t had custody prior because he had got out of jail before. And 

so the court gave him custody, as me as a third party to live in my home . . . He 

was on probation in my home too. He was not allowed to leave for six months.”

Again, it was Sexton, on cross-examination of Adams, who raised the 

status of his custody issues prior to the shooting. Defense counsel asked 

Adams about an incident in October 2014 when Jernigan allegedly posed as a 

social worker and procured custody of Sexton’s son from Adams. The 
11

Commonwealth followed up on re-direct, and Adams volunteered that Sexton 

and his son were staying with her as part of the custody arrangement because 

Sexton had been released from jail and was on probation. The Commonwealth 

did not ask Adams about Sexton’s incarceration: she volunteered that

information to paint a full picture of the situation. 

“Where evidence of other crimes is introduced into evidence through the 

non-responsive answer of a witness, this court must look at all of the evidence 

and determine whether the defendant has been unduly prejudiced by that 

isolated statement.” Phillips v. Commonwealth, 679 S.W.2d 235, 237 (Ky. 

1984). Under the totality of the circumstances, we find that Adams’ nonresponsive, isolated comment about Sexton’s prior incarceration, to which 

Sexton did not object, certainly does not rise to the level of palpable error. See, 

e.g., Matthews v. Commonwealth, 163 S.W.3d 11, 18 (Ky. 2005) (witness’s nonresponsive reference to defendant’s prior crime was insufficient to create a 

manifest necessity for a mistrial). 

b. Jernigan’s testimony about Sexton pointing a gun at her and the 

resulting effects on her son did not result in palpable error.

Sexton contends that Jernigan should not have been allowed to testify 

about him threatening her son when they were in Arizona and the long-lasting 

effects it had on her son. However, since Sexton did not object to this 

testimony, our review is limited to palpable error.

At trial, Jernigan testified that while she and Sexton were fugitives, she 

became sick and wanted to go to the emergency room, but Sexton would not 

allow her. She testified:
12

Jernigan: I was very ill. I mean very sick. Sick to my stomach, 

fever, chills. The thing was he said we couldn’t go.

Commonwealth: You wanted to go to the ER?

Jernigan: Yes, I did.

Commonwealth: And, he wouldn’t let you go?

Jernigan: No. And I told [my son] to get his clothes on, we were 

going. And, me and [Sexton] got in an argument over it. I told him 

we were going if he liked it or not. I walked outside, and he got 

into it with me, and drug me back in the house. He pointed the 

gun at my son and told me he would kill my son if I walked out 

that door.

Commonwealth: Sexton pointed a gun at your son?

Jernigan: And to this day my 20-year-old son cannot function.

Commonwealth: What gun did he point at him?

Jernigan: The gun he’s always had on him.

Commonwealth: The same gun he had on him the day of the 

shooting?

Jernigan: Yes.

Sexton claims that Jernigan’s statement “And to this day my 20-year-old 

son cannot function” was improper victim-impact testimony during the guilt 

phase. However, the Commonwealth did not ask Jernigan about the effects on 

her son; her volunteering that information was non-responsive and the 

Commonwealth simply moved past her statement rather than dwelling on it. 

No palpable error resulted.
13

c. Evidence about Gibson’s gun retrieved in Virginia was properly 

admitted.

Next, Sexton avers that the trial court abused its discretion in denying 

his KRE 401 and 402 motion to exclude evidence about Gibson’s gun that was 

seized in Virginia – specifically, evidence that the gun was not used in the 

murder of Collins. In denying Sexton’s motion, the trial court found that the 

evidence was relevant for purposes other than bolstering Jernigan’s testimony; 

that is, relevant to rebut Sexton’s contrived story that someone else committed 

the murder and possessed the murder weapon. 

While on the run, Sexton sent Facebook messages to his mother alleging 

that Gibson was the murderer, and his .45 caliber pistol was the murder 

weapon. At the time he sent the messages, the caliber of the murder weapon 

had not yet been disclosed to the public. The .45 caliber pistol retrieved from 

Gibson when he was arrested on unrelated charges in Virginia was tested by 

Kentucky authorities who determined it was not the weapon used to kill Collins

and the jury heard this evidence at trial.

Clearly, evidence that the weapon Sexton claimed Gibson used to carry 

out the murder was in fact not the murder weapon was relevant and probative. 

As to its prejudicial effect, KRE 403 provides that “[a]lthough relevant, evidence 

may be excluded if its probative value is substantially outweighed by the 

danger of undue prejudice, confusion of the issues, or misleading the jury, or 

by considerations of undue delay, or needless presentation of cumulative 

evidence.” The balancing under KRE 403 “requires that a trial court consider 

three factors: the probative worth of the evidence, the probability that the 
14

evidence will cause undue prejudice, and whether the harmful effects 

substantially outweigh the probative worth.” Hubers v. Commonwealth, 617 

S.W.3d 750, 779 (Ky. 2020).

Still, “KRE 403 does not offer protections against evidence that is merely 

prejudicial, in the sense of being detrimental to a party’s case.” Id. “Evidence 

is only unfairly or unduly prejudicial if it appeals to the jury’s sympathies, 

arouses its sense of horror, provokes its instinct to punish, or otherwise may 

cause a jury to base its decision on something other than the established 

propositions in the case.” Id. Under KRE 403’s balancing test, the probative 

value of evidence that Gibson’s gun was not used to kill Collins outweighed any 

prejudicial effect. To counter Sexton’s claim of an alternative perpetrator, the 

trial court properly allowed the Commonwealth to introduce firearm evidence 

refuting that claim. No abuse of discretion occurred.

d. The trial court did not abuse its discretion in admitting testimony 

about messages Sexton sent alleging that Gibson committed the 

murder.

Next, Sexton argues that the trial court abused its discretion in allowing 

the Commonwealth to introduce the messages sent from Sexton without 

sufficient authentication. This claim is preserved.

KRE 901(a) requires authentication or identification as a condition 

precedent to the admissibility of evidence “to support a finding that the matter 

in question is what its proponent claims.” An example of authenticating 

evidence includes the “[t]estimony of witness with knowledge. Testimony that a 

matter is what it is claimed to be.” KRE 901(b)(1). To meet the preliminary 
15

requirement of authentication, the offering party’s burden “is slight” and 

requires only “a prima facie showing of authenticity.” Johnson v. 

Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004). A witness with knowledge 

may authenticate evidence by testifying that the evidence is what it is claimed 

to be. Baker v. Commonwealth, 545 S.W.3d 267, 275 (Ky. 2018).

During trial, the Commonwealth introduced evidence, through Jernigan, 

that while on the run, she saw Sexton send Facebook messages from his “Jay 

Militia” account to his mother stating that Gibson was the murderer and

asking her to relay that information to Detective Petrie. Sexton’s mother 

testified that she received messages from Sexton’s “Jay Militia” account 

informing her that Gibson was the real killer and to forward that information to 

police. Detective Petrie testified that he received copies of messages sent from 

Sexton to family members via a “Jay Militia” account, claiming that Gibson was 

the perpetrator. Jernigan further testified that she did not have access to 

Sexton’s “Jay Militia” account and could not have sent messages from it. This 

testimony from witnesses with knowledge was sufficient to authenticate the 

messages to show that they were what the Commonwealth claimed them to be: 

messages sent from Sexton to his family to cast blame on another individual. 

Thus, the trial court did not abuse its discretion in permitting the 

Commonwealth to introduce them.

e. No cumulative error resulted.

Cumulative error is “the doctrine under which multiple errors, although 

harmless individually, may be deemed reversible if their cumulative effect is to 
16

render the trial fundamentally unfair. We have found cumulative error only 

where the individual errors were themselves substantial, bordering, at least, on 

the prejudicial.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). 

Here, no reversible error occurred. Sexton has wholly failed to show that he 

received anything but a fair trial, and the evidence was sufficient for a jury to 

convict. No cumulative error resulted.

III. Conclusion

For the foregoing reasons, the judgment and sentence of the Floyd 

Circuit Court is affirmed.

All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, 

JJ., concur. Thompson, J., concurs in result only. 

COUNSEL FOR APPELLANT:

Steven Jared Buck

Department of Public Advocacy

Timothy Alan Parker

Tim Parker Law

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Joseph A. Beckett

Arnold Brent Turner

Assistant Attorney General