CASEY W. JONES V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION AFFIRMING

RENDERED: OCTOBER 16, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0434-MR CASEY W. JONES APPELLANT v. APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE DIANE MINNIFIELD, JUDGE ACTION NO. 22-CR-00314 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, CALDWELL, AND EASTON, JUDGES. EASTON, JUDGE: This is an appeal of the Final Judgment and Sentence of Imprisonment entered by the Fayette Circuit Court following a jury trial where Appellant Casey W. Jones (Jones) was convicted of first-degree rape and theft under $500.00. He challenges the circuit court’s denial of his motion for directed verdict on the rape charge, arguing the victim was not “physically helpless.” He also challenges the jury instructions and the restitution ordered. We affirm.

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-2- FACTS AND PROCEDURAL HISTORY On December 25, 2021, J.M.1 dropped off her son at his father’s house in South Carolina for the holiday then returned to her home in Fayette County, Kentucky. Later that same day, J.M.’s friend, Karla, joined her for the evening. They shared a glass of champagne then spent the remainder of the evening having drinks at the Malabu Pub in Lexington. Karla had been communicating with a man named Joey on a dating app, and he met them at the pub. While there, J.M. stepped outside to smoke, and an argument ensued between J.M. and another patron of the pub. Jones, who was unknown to J.M., Karla, or Joey, interceded to defend J.M. He then joined them for drinks until the pub closed. J.M. and Karla returned to J.M.’s apartment in the early morning hours of December 26. Karla had invited Joey to join them. Jones also followed the group to J.M.’s home, but there was a dispute as to whether he was invited. Nonetheless, J.M. allowed Jones into her apartment and the four of them continued celebrating the holiday. While it is unclear exactly how much alcohol J.M. consumed at the pub, she had at least one glass of champagne before she left her apartment and at least one glass of wine upon her return home. According to the testimony of both 1 To protect the identity of the victim, we will refer to her only by initials.

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-3- women, they were extremely intoxicated. Karla spent the night passed out on the bathroom floor. J.M. also spent a period of time passed out in the bathroom shower and the remainder of the early morning hours passed out on a couch in the living room. Around 3:00 a.m., Joey left the apartment, but Jones stayed. The next morning when Karla awoke, she saw J.M. naked from the waist down on the couch. She covered her with a blanket and left. Later that day she phoned J.M. to discuss what had happened the night before. Neither J.M. nor Karla had a clear memory of the evening’s events. The following day, Karla realized she was missing a $100.00 bill from her purse. This bill had significance to her because it was the last thing her father gave her before he died. She phoned J.M. to see if she knew what happened to the $100.00 bill. J.M. had no memory of seeing the money. But J.M. has a motion- activated surveillance camera in her living room to check on her middle-school- aged son when he is home alone. She told Karla she would check the video footage to see if she could figure out what happened to the money. The video showed Jones doing things sexually to J.M. “that he never should have been doing,” according to J.M. The video also showed Jones rummaging through J.M. and Karla’s purses and stealing the missing cash.

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-4- J.M. contacted the police. Karla took J.M. to the hospital for a sexual assault examination, but it was not completed because days had passed since the incident occurred. J.M. had showered multiple times. No evidence was likely to be obtained. J.M. was also uncomfortable with the nurse who would have performed the four-hour examination. On December 31, Detective Heyward (Heyward), Special Victims Division of the Lexington Police Department, met with J.M. and began his investigation. He located Jones and detained him for questioning on January 15, 2022. After Heyward had read Jones his rights, Jones voluntarily discussed the events of December 25-26. At first, Jones denied he knew J.M. He told Heyward he went to the pub and had some drinks then left to pick up a cousin and go to a store. He said he returned home alone. He denied meeting a woman at the pub or returning to her home after the pub closed. After Heyward showed Jones a screenshot image of him in J.M.’s home, Jones then admitted he knew J.M. and had gone to her home on the night in question. But he denied any sexual contact with J.M. He stated both J.M. and Karla were “totally drunk.” On a scale of 1 to 10, Jones told Heyward that J.M. was a “10 out of 10 drunk.” He stated, “if it weren’t for us (Joey and Jones) making sure they got home, they would have wrecked.” He also stated J.M. was so

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-5- intoxicated that he had to help her inside the apartment, that she had passed out in the bathroom with Karla, and that he and Joey had to wake her up to lock the door to the apartment when they left. Heyward then explained to Jones that J.M. had a surveillance camera in her living room that captured the events of the evening. Jones ultimately admitted he had sexual intercourse with J.M. But he insisted she consented to it. Jones was then placed under arrest. In April 2022, Jones was indicted by a grand jury on charges of first- degree rape and theft under $500.00. A two-day jury trial was held on June 24-25, 2024. The Commonwealth presented testimony from J.M., Karla, and Heyward, and played both the surveillance video from J.M.’s home and the video of Jones’s interview at the police station. At the close of the Commonwealth’s case, Jones made a motion for a directed verdict on the rape charge, arguing the victim was not “physically helpless.” After the circuit court denied the motion, Jones recalled Heyward for brief questioning and then rested his case. There was no rebuttal evidence. Jones renewed the motion for a directed verdict, and the circuit court denied it for a second time. After closing arguments, the jury deliberated and returned a guilty verdict on both counts. The jury fixed a total sentence of eleven years and six

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-6- months’ imprisonment. The circuit court sentenced Jones accordingly. Jones was permitted to file a late appeal in October 2025. The parties’ respective briefs are generally compliant with our Rules of Appellate Procedure, but Jones has not properly preserved all issues for our review. We will review any unpreserved issues only for palpable error. STANDARD OF REVIEW Jones challenges several decisions of the circuit court in this appeal. His main argument is that the circuit court erred by not granting a directed verdict on the rape charge. On a motion for directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion. An appellate court reviewing such a ruling also “must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party.” Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992). “All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact.” Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461 (Ky. 1990). Generally, a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ. Where there is conflicting

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-7- evidence, it is the responsibility of the jury to determine and resolve such conflicts, as well as matters affecting the credibility of witnesses. Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998). This Court “must respect the opinion of the trial judge who heard the evidence. A reviewing court is rarely in as good a position as the trial judge who presided over the initial trial to decide whether a jury can properly consider the evidence presented.” Id. at 18. Upon completion of the consideration of the evidence, this Court “must determine whether the jury verdict was flagrantly against the evidence so as to indicate that it was reached as a result of passion or prejudice. If it was not, the jury verdict should be upheld.” Id. at 19. In addition to challenging the denial of his motion for a directed verdict, Jones also challenges the jury instructions and restitution. But he admits these added issues are not preserved. He requests palpable error review. If an appellant fails to timely preserve his arguments for review as required by RCr2 9.54 prior to the time the court instructs the jury, the issue is not preserved, and the court will not address that issue unless it warrants review pursuant to RCr 10.26. Pollini v. Commonwealth, 172 S.W.3d 418, 428 (Ky. 2005). RCr 10.26 allows palpable error review of an unpreserved error if the error affects the substantial rights of the appellant, i.e., if it seriously affects “the 2 Kentucky Rules of Criminal Procedure.

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-8- fairness, integrity or public reputation of judicial proceedings.” Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997). To determine if an error is palpable, “an appellate court must consider whether on the whole case there is a substantial possibility that the result would have been any different.” Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky. 1983). To be palpable, an error must be “easily perceptible, plain, obvious and readily noticeable.” Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (citing Palpable, Black’s Law Dictionary (6th ed. 1995)). “A finding of palpable error must involve prejudice more egregious than that occurring in reversible error and the error must have resulted in ‘manifest injustice.’” Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005) (citations omitted). ANALYSIS Jones first argues that the circuit court should have granted a directed verdict on the rape charge, because there was no evidence of penetration while the victim was “physically helpless.” We disagree. KRS 510.040(1)(b) defines first-degree rape: (1) A person is guilty of rape in the first degree when: (b) He engages in sexual intercourse with another person who is incapable of consent because he: 1. Is physically helpless[.] KRS 510.010(10) defines the term “physically helpless”:

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-9- “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. “Physically helpless” also includes a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug[.] (Emphasis added.) KRS 510.010(14) defines the term “sexual intercourse” as follows: “Sexual intercourse” means 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. The Commonwealth’s theory of the case was that, after Joey left the apartment, J.M. was so drunk she passed out on the living room couch. She was “physically helpless” due to alcohol intoxication. And while she was in this state, unable to communicate consent to sexual intercourse, Jones had sexual intercourse with her. Jones argues there was insufficient evidence of the amount of alcohol J.M. consumed to establish she was intoxicated. He points to portions of the surveillance video where J.M. is walking around her apartment without assistance, talking to her guests, and providing them with bottled water. She walks back and forth from the bathroom to the living room on several occasions to check on Karla without stumbling or appearing unsteady on her feet. He also argues there was no

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-10- surveillance footage from the pub to indicate J.M.’s state of intoxication, and no receipts from the bar or records from J.M.’s own bank account to confirm the number of drinks she consumed. He insists the evidence failed to support a finding of extreme intoxication. This contention is disingenuous. There was testimony at trial from both J.M. and Karla that each of the women had consumed large amounts of alcohol and were so drunk they couldn’t remember what happened on December 26. The evidence also included Jones’s own statement to Heyward during his interview that J.M. was “totally drunk” and “10 out of 10 drunk” on the night in question. In addition, the surveillance video shows the events of December 26th from the time J.M. and her guests arrived at the apartment at approximately 2:15 a.m. until Jones leaves the apartment at 3:49 a.m. It contains evidence of J.M.’s intoxication to the point of unconsciousness. Although the beginning of this ninety-minute video does show J.M. walking around the apartment and talking to Jones and Joey while drinking wine, later portions of the video show J.M. going to the bathroom to check on Karla and not returning for nearly sixteen minutes. It is during this time that J.M. was passed out in the shower while Karla was passed out on the floor, due to the excessive amount of alcohol they had consumed. Jones admitted J.M. had passed out in the bathroom with her friend during his interview with Heyward and stated that he and

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-11- Jones had to wake her up so she could lock the door to the apartment when they left. The video shows Joey and Jones both walking down the hallway and standing outside the bathroom door while Joey yells several times for J.M. to “come lock the door” when they leave. When J.M. finally comes out of the bathroom and walks into the living room, she appears unsteady on her feet. There is also extensive video footage of J.M. motionless on the couch, unresponsive to noises or touching by Jones. The video footage with the testimony at trial are sufficient to support a finding that J.M. was extremely intoxicated. Jones also argues that, even though J.M. had consumed alcohol, she was not so intoxicated as to be rendered “physically helpless,” unable to communicate a willingness to act due to unconsciousness. He relies heavily on the commentary to KRS 510.010(10) that the definition of “physically helpless” includes the situation where a person is in a deep sleep because of barbiturates, “unconscious because of excessive alcohol consumption,” or a total paralytic. And he insists that evidence of any movement negates any finding of unconsciousness. But these examples in the commentary are not exhaustive, just illustrative. Unconsciousness is not required. Jones argues the video evidence demonstrates that J.M. engaged in various movements before and during at least the second part of the sexual

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-12- intercourse, and those movements prove she was conscious and thus not “physically helpless.” Jones continues that, because the evidence did not support a finding that J.M. was “physically helpless,” the circuit court erred in denying his motion for a directed verdict. Because neither J.M. nor Karla have a clear memory of the events surrounding the early morning hours of December 26, and Jones himself did not testify at trial, the evidence of whether J.M. was “physically helpless” predominantly derives from the surveillance video in J.M.’s home. We have had the unpleasant experience of reviewing this video carefully and will endeavor to describe its sensitive contents with only as much detail as required. The camera is motion activated. There are pauses or breaks in the video when no movement occurs. The camera view includes most, but not all, of the living room, which is an open area with two couches. The couch where the sexual intercourse occurred is red. It sits directly below the camera and is positioned in the middle of the open living room floor area, with the back of the couch facing the wall to the right. Individuals sitting or lying on the couch would face the open area to the left side of the room. Along the right-side wall is the doorway to the kitchen and a small kitchen table upon which J.M. and Karla sat their purses. The camera view does not include the kitchen area itself. The entry door is located on the back, left-side corner of the living room, and a hallway is

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-13- located on the back, right-side corner. The view of the hallway includes doorways to two bedrooms and two bathrooms but does not include views inside those rooms. Having previously discussed the video of events occurring before 3:00 a.m., we start there with further description. Karla and J.M. were passed out in the bathroom, with Karla lying on the floor and J.M. lying in the shower. Joey decided it was time for him to leave, and he can be heard telling Jones that he should leave too. Both men walk down the hallway, stand outside the bathroom door, and yell several times for J.M. to come lock the door behind them. After J.M. emerges from the bathroom, she walks into the living room. She appears unsteady on her feet and “plops down” on the red couch. When the men get to the front door, she gets up from the couch and walks over to them. J.M. attempts to give Jones a hug from the side and he bends down and appears to kiss her. She walks away and goes back to the bathroom while yelling Karla’s name. Both J.M. and Karla later testified that they each believed Jones and Joey had left the apartment at this point. Instead, as Joey exits the apartment, Jones turns around and follows J.M. down the hallway. Several minutes later, J.M. returns to the living room and lies down on the red couch in a somewhat fetal position, with her knees drawn to her chest and the side of her face laying on the armrest facing the left-side wall of the living

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-14- room and her back resting against the couch. The camera view does not show her face at this point. It is approximately 3:13 a.m. Jones then appears in the living room and sits next to J.M. on the couch. He gently lifts her ankles and places her feet on his knees. He removes her shoes. Although the audio is not entirely clear, it sounds like J.M. mumbles something about wanting to sleep. Jones does not respond. He simply sits still and stares at her. J.M. does not move as Jones continues to sit next to her silently. She remains in the same fetal position. He continues to stare. It is 3:20 a.m. The Commonwealth maintains J.M. has passed out now. Jones then begins to move, and J.M. slightly moves her legs. Jones leans down behind her back and rubs her leg. J.M. does not respond. It is 3:25 a.m. Jones then sits back up and rubs her thigh and hip. J.M. still does not move. It is 3:27 a.m. Jones then pulls J.M.’s pants down to her thighs with her buttocks exposed. Again, she does not move. Jones puts his head down by her buttocks and J.M. appears to push him away. She also stretches out her leg and Jones gently grasps her foot and uses it to briefly rub his groin area on the outside of his pants. J.M. does not respond. Her body remains still and there is no evidence that either Jones or J.M. are speaking to one another.

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-15- At 3:29 a.m., Jones bends down and places his mouth between J.M.’s buttocks and vagina. It appears he is performing oral sex3 on her as she lays motionless on the couch. Jones remains in this position briefly, then sits up and puts his fingers inside of either J.M.’s buttocks, vagina, or both. The digital penetration continues as Jones caresses J.M.s buttocks, and stares at her silently. J.M. does not respond verbally. Her body is motionless. Jones then gets on his knees on the floor in front of J.M. He moves her legs and tries to pull her pants down further. He then stands up, starts to walk off, turns around and rubs J.M.’s buttocks, and J.M. does not respond. At approximately 3:30 a.m., Jones walks to the bathroom where Karla is passed out. He pauses and looks back towards J.M. several times without speaking. He walks slowly with quiet intention. Jones remains in the bathroom with Karla for several minutes.4 During this time, the video shows J.M. in the living room, continuing to lie on her side with her pants down and her buttocks exposed with no movement whatsoever. When Jones returns to the living room, he walks slowly without speaking, and when he gets to the couch he leans down and kisses J.M. Again, she 3 Jones was not charged with a separate act of sodomy. 4 Karla testified that while she was passed out on the bathroom floor, she was jarred awake by an act to her “lower region” and saw a man in a red shirt standing over her. Jones was the only person in the apartment wearing a red shirt on December 26. Jones was not charged with any sexual act as to Karla.

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-16- does not move. Jones stands beside her and leans over her buttocks and places his fingers inside her. She begins to move with a motion as if to push him away. He then gets down on his knees beside her and pulls her jeans down even further and lifts her legs. J.M. mumbles something inaudible and attempts to pull her pants up with one hand. Jones quickly releases her and puts both his hands up in the air. He pauses in this position momentarily and stares at her without speaking. It is 3:35 a.m. Jones then tries to pull J.M.’s pants down once more and she resists with her hand while her upper body remains still. Then Jones briefly puts his mouth back in the area between J.M.’s buttocks and vagina. He then stands up, removes his penis from his pants, bends over, and looks at her vagina while his hands are on her buttocks. Jones proceeds to get on his knees on the couch. He then penetrates J.M. with his penis and begins to thrust. At this point, J.M. is still on her side in the fetal position with her knees bent. J.M. does not respond to what is happening to her, and no words are spoken by either party. It is 3:37 a.m. Shortly thereafter, while Jones is on top of her, J.M.’s arm reaches around to his back and makes several rubbing motions up and down his shirt. Jones then stops what he’s doing, stands up and removes his pants and underwear, and pulls J.M.’s pants down to her ankles. J.M. kicks her pants off from around her ankles. She grabs the back of the couch and adjusts her body such that she is

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-17- now flat on her back. The angle of the camera view at this point still does not include J.M.’s face, only her body from the abdomen down. She spreads her legs, and Jones climbs on top of her a second time. The sexual intercourse continues at 3:38 a.m. During this event, there is random movement of J.M.’s legs and arms. Jones stops by 3:40 a.m. No words were spoken during this event. Jones then stands up and speaks for the first time since the sexual contact began, stating he was going to wash up. J.M. does not respond and remains on the couch. After Jones walks out of the living room, J.M. pulls her shirt down to her waist, turns her body toward the back of the couch with her knees bent and leaning against the backrest. She remains motionless in this position for the remainder of the video. At 3:43, Jones comes out of bathroom and stares at J.M. J.M. does not move. No one speaks. Jones then picks up his clothes and drops something on the floor. J.M. does not react. Jones then puts his clothes on and rummages through the purses that are sitting on the kitchen table. While going through the contents of the purses, Jones continually looks over at J.M. without speaking. She remains immobile. He slowly tiptoes back and forth between the couch and the table where he continues to search for items in the handbags. He appears to remove cash from one of the bags and place it in his pocket.

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-18- Around 3:47, Jones picks up his shoes right next to J.M. and puts them on without speaking. Again, J.M. does not react. Jones then walks toward the front door and stops to search the contents of a bowl. Then he leaves the apartment without saying a word or ensuring the door is locked. J.M. remains motionless on the couch in the same position as when the sexual intercourse ended nine minutes earlier. It is 3:49 a.m. Jones argues here, as he did before the circuit court, that the video evidence of J.M.’s movements (kicking off her pants, rubbing his back, adjusting her body, spreading her legs) is sufficient proof of her consent to engage in sexual intercourse. The Commonwealth responds that these movements do not support a finding that J.M. was able to communicate consent because she was passed out due to alcohol intoxication when the sex began. The Commonwealth points to the numerous portions of the video evidence detailed above which show J.M. lying motionless and unresponsive while Jones digitally penetrates her. The Commonwealth also points to the portion of the video where Jones penetrates J.M. the first time with his penis while she was lying motionless on her side in a fetal position. The Commonwealth disputes that J.M.’s later limited movements support a finding that she was able to communicate consent to the intercourse. In addition, the Commonwealth argues there was evidence other than the video that J.M. was “physically helpless.” The Commonwealth points to

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-19- Jones’s police interview. He initially lied to police about knowing J.M. or being present in her home to conceal his crime. He did not admit to having sexual intercourse with J.M. until he was confronted with the fact there was a surveillance video of the incident. In addition, the Commonwealth points to J.M.’s own testimony that she believed Jones had left the apartment with Joey, she had no memory of the events thereafter, and she was unaware of the rape until she viewed the surveillance camera footage two days later. J.M. also definitively testified that she never consented to sexual intercourse with Jones. In denying the motion for a directed verdict, the circuit court determined the case was about more than just the video. There was also testimony about whether J.M.’s level of drunkenness rose to the level of helplessness, and the veracity of this testimony should be weighed by the jury. We agree. “So long as the Commonwealth produces more than a mere scintilla of evidence to support the charges, a defendant’s motion for directed verdict should be denied.” Taylor v. Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020). And here, there was more than a mere scintilla of evidence. While Jones argues the video evidence shows J.M. was not physically helpless at the time of the rape and thus able to consent to engage in sexual intercourse with Jones, the question of consent was one for the jury. Hendron v.

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-20- Commonwealth, 487 S.W.2d 275, 278 (Ky. 1972). The jurors watched the video, and they could independently interpret the security footage, McRae v. Commonwealth, 635 S.W.3d 60, 70 (Ky. 2021), and weigh the credibility of the testimony. J.M. testified she never consented to sexual intercourse with Jones. And Jones, during his police interview, denied he raped J.M., stating “she wanted me to do those things to her.” The jury ultimately resolved the question of consent against Jones. Based on our review of the evidence in this case, we cannot say the verdict was so flagrantly against the weight of the evidence as to indicate passion or prejudice. A reasonable jury could conclude that J.M. was incapacitated because of alcohol intoxication and thus did not have the ability to flee, to consent, or to communicate an unwillingness to participate in intercourse with Jones – especially when the first act of penetration during the sexual intercourse occurred. Although there may have been evidence elicited at trial that weighed against such a finding, we cannot conclude that, under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt under the circumstances of this case. The circuit court properly denied the motion for directed verdict. Next, Jones challenges the jury instructions for rape, arguing the instructions erroneously allowed for a non-unanimous and unreliable verdict. This issue is not preserved. Jones concedes he did not object to the rape instructions

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-21- and did not state specific grounds for objections before the circuit court. Indeed, the trial judge stated the parties had submitted proposed jury instructions that were “not that dissimilar.” We shall thus review for palpable error. See Johnson v. Commonwealth, 676 S.W.3d 405 (Ky. 2023) (unanimity issues from jury instructions are not automatically palpable error). The circuit court instructed the jury as follows: INSTRUCTION NO. 7 COUNT 1: RAPE 1ST DEGREE You will find the Defendant 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 about December 26, 2021, and before the finding of the Indictment herein, he engaged in sexual intercourse with [J.M.], AND; B. That at the time of such intercourse [J.M.] was physical [sic] helpless The circuit court defined “physically helpless” in Instruction No. 6 as a person who is unconscious or “for any other reason is physically unable to communicate unwillingness to an act,” and includes a person who has been rendered unconscious or “for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug.”

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-22- Jones argues the jury had only one instruction for a single instance of rape and was presented with four separate incidents of penetration (twice with his fingers and twice with his penis) to determine his guilt. Jones insists there is no guarantee that all twelve jury members chose the same act to convict him. He argues the video shows a questionable moment of helplessness without evidence of penetration, and a clear moment of penetration without evidence of helplessness. And under these instructions, according to Jones, six jurors could have mistakenly thought the first incident was the crime, while the other six believed the second incident was the crime. He continues that the Commonwealth’s presentation of multiple theories in its closing argument prevented an appropriate response to the lack of supporting evidence for all theories. He argues that, because the instruction for rape deprived Jones of his constitutional right to a unanimous verdict, his conviction should be reversed and remanded for a new trial. We disagree. Unlike some other states, Kentucky adheres to the “bare bones” approach to instructions, which means that instructions should not explain evidentiary matters, evidentiary presumptions, or contain unnecessary detail. Jury instructions should refrain from elaborating on an abundance of detail but still strike the proper balance in providing enough information to a jury to make it fully aware of the respective legal duties of the parties. See Sutton v. Commonwealth,

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-23- 627 S.W.3d 836, 851 (Ky. 2021). “Instructions in criminal cases should conform to the language of the statute. It is left to the lawyers to ‘flesh out’ the ‘bare bones’ in closing argument. Otherwise, . . . the jury might convict a defendant for conduct not specifically proscribed by the statute.” Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky. 2006) (citations omitted). Here, the jury instructions clearly conformed to the language of KRS 510.040(1)(b), the elements of the crime including (1) sexual intercourse, (2) while J.M. was physically helpless. Pursuant to Kentucky’s “bare bones” tradition, Jones was then free to argue facts before the jury to support his argument that the Commonwealth failed to show a clear moment of penetration with evidence of helplessness. And our review of the record indicates Jones’s trial counsel did in fact make such arguments in closing. Trial counsel pointed out to the jury the various times in the video where J.M. was conscious (walking, talking, drinking in the apartment) and able to communicate consent (kicking off her pants, rubbing Jones’s back, adjusting her body, opening her legs). He argued these facts support a finding Jones was falsely accused of rape because J.M. was neither unconscious nor physically helpless. He also argued that taking advantage of someone who was drunk was not the same as having sex with someone who was unconscious. To explain why J.M. might have

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-24- accused Jones of rape after she willingly participated in sexual intercourse with him, he argued it was regret. And regret was not rape. Likewise, the Commonwealth “fleshed out” its factual arguments in closing, using the video to point out multiple instances of penetration while J.M. lay motionless on the couch, and reminding the jury that rape can be completed by finger or penis and that both occurred here. It was then up to the jury to decide what facts it believed constituted the crime of rape. Juror unanimity “means that jurors must agree upon the specific instances of criminal behavior committed by the defendant but they need not agree upon his means or method of committing the act or causing the prohibited result.” Halvorsen v. Commonwealth, 671 S.W.3d 68, 73 (Ky. 2023) (citing King v. Commonwealth, 554 S.W.3d 343, 352 (Ky. 2018)). This case did not involve multiple charges to be determined. There was one count of rape. The charge resulted from an essentially uninterrupted event. It is understandable for Jones to argue that there was at least some indication that the second part of the intercourse was while J.M. was not helpless, although that is clearly debatable. But with this evidence there is no chance that the jurors were confused about the physical helplessness when the event started with the first penetration. It would have been no different if continuing penetration had awakened J.M. to the accomplished fact of the intercourse and she then showed some signs of physical

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-25- reaction. The rape had already occurred. There was no manifest injustice – no palpable error. Finally, Jones challenges the circuit court’s order requiring him to pay $308.68 in restitution, consisting of $100.00 to be paid to Karla and $208.68 to the Crime Victims Compensation Board. This issue is not preserved. Again, we will review for palpable error. Jones argues he never agreed to pay restitution and the circuit court neither explained the restitution amount nor held a hearing providing him with an opportunity to challenge it. But our review of the record indicates that at a pre-trial conference held in April 2023, a plea offer was discussed between the Commonwealth and defense counsel. One week later, the Commonwealth filed the pre-trial conference offer, and those details indicate the Commonwealth would dismiss Count 2 of the Indictment in exchange for a guilty plea on Count 1 of the Indictment, with a recommendation for a ten-year sentence, and payment of restitution in an amount to be determined. This plea offer was signed by both the Commonwealth and defense counsel. Ultimately, Jones rejected the Commonwealth’s offer and proceeded to a jury trial, but he was on notice that restitution was an issue. During the jury trial, Karla testified that a $100.00 bill was stolen from her purse, and the video evidence showed Jones engaged in the theft. Jones

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-26- searched both women’s purses and a bowl. Then, at the sentencing hearing in November 2024, the Commonwealth tendered a Restitution Victim List itemizing the amount of restitution to be paid to each victim, along with their respective names and addresses. The reimbursement to the Crime Victims Compensation Board referred to a specific claim number (presumably related to losses sustained by J.M.) establishing Jones’s obligation to repay that amount due to this case. Jones did not challenge the Commonwealth’s request for restitution or demand a hearing to challenge the amounts documented. The circuit judge explained on the record that she was ordering restitution in the amount of $308.68 to be paid at an amount of $50.00 per month. Jones did not object. On appeal, Jones fails to make specific challenges to the amount of restitution as speculative or unsupported. He simply argues there was no agreement to pay restitution. This contention is without merit. Restitution was proper in this case. Again, there is no palpable error. CONCLUSION Drawing all fair and reasonable inferences from the evidence in favor of the Commonwealth, we determine there was substantial proof that Jones penetrated J.M. and that she was physically helpless when that penetration occurred. There were disputed facts on which reasonable minds could differ as to whether J.M. was physically helpless when the penetration occurred, but that fact

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-27- was found by the jury against Jones. We find no error in the circuit court’s denial of Jones’s motion for directed verdict on the rape charge. Further, we find no palpable error in the jury instructions or the order directing payment of restitution. The decision of the Fayette Circuit Court is AFFIRMED. ALL CONCUR. BRIEFS FOR APPELLANT: Jennifer Wade Steve Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky

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