GELIN OMAR GUEVARA V. COMMONWEALTH OF KENTUCKY — OPINION OF THE COURT BY JUSTICE KELLER AFFIRMING

RENDERED: OCTOBER 22, 2026 TO BE PUBLISHED Supreme Court of Kentucky 2025-SC-0059-MR GELIN OMAR GUEVARA APPELLANT V. ON APPEAL FROM LOGAN CIRCUIT COURT HONORABLE JOE W. HENDRICKS, JR., JUDGE NO. 22-CR-00212 COMMONWEALTH OF KENTUCKY APPELLEE OPINION OF THE COURT BY JUSTICE KELLER AFFIRMING Following a three-day trial, a Logan County jury convicted Appellant, Gelin Omar Guevara (“Guevara”), of one count of first-degree sexual abuse, one count of first-degree sodomy, one count of first-degree attempted rape, and one count of incest. He was sentenced in accordance with the jury’s recommendation of life imprisonment. Guevara now appeals as a matter of right. See KY CONST . § 110(2)(b). Having reviewed the record, the arguments of the parties, and the applicable law, we affirm the Logan Circuit Court. BACKGROUND The events giving rise to the facts of this case took place from February 2017 through March 2022. Guevara and his wife Laura were married, and in 2008 they had their first daughter, M.G. At that time, Guevara and Laura

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2 moved back to Laura’s hometown to live with her parents. About two years later, in early 2010, Laura gave birth to their second daughter, O.G. Around 2015, Laura and Guevara again lived with Laura’s parents. At that time, O.G. was five. In 2019, Laura bought a red playhouse for the girls to play in. O.G. was 10. In 2022, while riding the school bus one day, O.G. began talking to her friend. The friend noted that one of their friend’s father was recently arrested for performing sexual acts with his daughter. At that time, O.G. told her friend that Guevara had also been performing sexual acts with her. The friend urged O.G. to tell someone. After arriving home, O.G. confided in her grandmother. O.G.’s grandmother called Laura. Laura left work and immediately took O.G. to the Sheriff’s Office. O.G. then spoke with Detective Casey and Child Protective social worker Ashlee Beller. Laura was granted an emergency protective order and took O.G. to a forensic interview the next day. Social worker, McCall Allen conducted the forensic interview. During trial, Laura testified that when O.G. and M.G. were younger, they had a great relationship with Guevara. However, when O.G. turned ten, she started talking back to Guevara and did not want to be alone with him. Laura never suspected any abuse, and school officials never contacted her about suspected abuse. M.G. testified at trial that she was never abused by Guevara, and she had no memory of Guevara abusing O.G. At trial, O.G. testified. She noted multiple occasions when Guevara inappropriately touched her, specifically in the red playhouse that was in the

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3 back of her grandparents’ home. In the playhouse, Guevara flipped her upside down on the futon where his face would be in her vaginal area, with his mouth open and moving around. This happened at least twice. The abuse stopped when O.G. was around age seven or eight but started again around age nine. She testified that one time she woke up with her hand on Guevara’s penis. After she woke up, she did not know what had happened, but felt the situation was wrong and she had to wash her hands. On multiple occasions, she woke up on top of Guevara with his penis touching her inner thigh. Guevara would pull her pants down and “make out” with her while she was at her grandparents’ house. On at least five occasions, Guevara tried to put his penis in her vagina. His penis would touch her vagina. On at least five other occasions, Guevara put his penis in her mouth while she was sleeping. She noticed that when she woke up, a substance would come out of Guevara penis. On one occasion, Guevara took her to the bathroom to touch his penis. O.G. testified that most of the abuse occurred before January 2022, and the last incident before Guevara’s arrest was March 2022. During trial, Guevara’s former cellmate, Eddie Mosley, testified for the Commonwealth concerning the abuse. Mosley had never met Guevara prior to incarceration, or anyone in Guevara’s family. Guevara told him that he had touched M.G. and O.G. Guevara admitted to putting his penis in O.G.’s mouth. In this conversation, Guevara stated his father abused his sisters, and Laura

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4 was abused by her father. In Laura’s testimony, she corroborated that she told Guevara about the abuse she suffered but had not told anyone else. In its case, the Commonwealth called social worker Allen to testify. In May 2022, social worker Allen conducted a forensic interview with O.G. A year later, she conducted a forensic interview with M.G., where she described unsubstantiated claims of abuse which will be addressed below. The jury ultimately convicted Guevara of first-degree sexual abuse of a victim under 16 years old, first-degree sodomy, first-degree attempted rape, and first-degree incest involving a victim under 12 years old. The jury recommended five years’ imprisonment for first-degree sexual abuse of a victim under sixteen, life imprisonment for first-degree sodomy of a victim under twelve, twenty years’ imprisonment for first-degree attempted rape of a victim under twelve, and life imprisonment for incest of a victim under twelve. The trial court adopted the jury’s recommendation and sentenced Guevara to life imprisonment. This appeal followed. ANALYSIS On appeal, Guevara alleges four errors: (1) the trial court erred in the giving of instructions for both incest and sodomy; (2) the trial court erred by not excusing a juror for mouthing words to a witness; (3) the trial court erred by reversing its decision to admit opinion evidence; and (4) the trial court erred in not excluding Mosley’s interviews. Each claim of error will be addressed in turn.

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5 A. It was not an abuse of discretion for the trial court to instruct the jury on both incest and sodomy. Before the guilt phase of the proceeding, the trial court had a substantive question that it brought to the attention of the parties. The trial court was concerned that the elements for sodomy were included in incest and would merge, invoking a double jeopardy violation. In its discussion, the trial court cautioned that sodomy had all elements contained in incest, except for familial relationship. The record reflects that counsel for both parties supported the position that a person could be convicted of both sodomy and incest. After the Commonwealth provided relevant and appropriate case law, the trial court reluctantly agreed that a person could be convicted of sodomy and incest. Specifically, the trial court stated, “it doesn’t matter if I agree with them [the legislature] or not.” Clearly, the trial court believed a merger, or double jeopardy violation, was present, but decided to allow the instruction on both charges and defer to a higher court to reverse the conviction if a violation was found. Standard of Review At trial, defense counsel agreed with the Commonwealth that a person can be convicted of both sodomy and incest. Therefore, Guevara’s argument to the contrary on appeal is unpreserved. RCr 10.26 states: A palpable error which affects the substantial rights of any 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

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6 appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. To establish palpable error, Appellant must show “the probability of a different result or error so fundamental as to threaten his entitlement to due process of law.” Huddleston v. Commonwealth, 542 S.W.3d 237, 245 (Ky. 2018) (quoting Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007)). “On appellate review, our focus is on whether ‘the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.’” Id. (quoting Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006)). “For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (internal quotation marks omitted). “A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings.” Id. Discussion The Blockburger1 test, sometimes referred to as the “same-elements test” for a double jeopardy violation inquires whether each offense contains an element not contained in the other; if not, they are the same offense, and double jeopardy bars additional punishment and successive prosecution. Clark v. Commonwealth, 267 S.W.3d 668, 675 (Ky. 2008). In examining a double jeopardy violation, the plain language of the statute must be examined. Raines v. Commonwealth, 379 S.W.3d 152, 154 (Ky. App. 2012). The double jeopardy 1 Blockburger v. United States, 52 S.Ct. 180 (1932).

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7 analysis focuses solely on “whether each statute on its face, contains a different element.” Dixon v. Commonwealth, 263 S.W.3d 583, 591 (Ky. 2008). Guevara was charged with first-degree sodomy and incest. The jury was instructed on both first-degree sodomy and incest. Guevara was ultimately convicted of both. In asserting his claim, Guevara argues that double jeopardy is implicated based on the jury instructions. We cannot find palpable error in the defendant being convicted of sodomy and incest merely based on jury instructions that were agreed upon. His argument mischaracterizes the law. Kentucky Rules of Criminal Procedure state: No party may assign as error the giving or the failure to give an instruction unless the party’s position has been fairly and adequately presented to the trial judge by an offered instruction by motion, or unless that party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds for objection.” RCr.9.54(2). Concerning a question of double jeopardy, the question is not merely whether the party failed to object to an erroneous instruction but whether he knowingly relinquished that right. Boggs v. Commonwealth, 718 S.W.3d 651, 659 (Ky. 2025) (citing Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011)). In Quisenberry, we held that “invited error, i.e., invitations that reflect the party’s knowing relinquishment of a right, are not subject to appellate review” and are considered waiver. Quisenberry, 336 S.W.3d at 38 (citing United States v. Perez, 116 F.3d 840 (9 th Cir. 1997)). In Boggs, we held that by expressly agreeing to the trial court’s instructions, the alleged error is

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8 deemed to be waived and is not subject to appellate review. Boggs, 718 S.W.3d at 659 (citing Sanchez v. Commonwealth, 680 S.W.3d 911, 930 (Ky. 2023)). In this case, the Commonwealth recommended stylistic changes to the jury instructions. Defense counsel acquiesced to the instruction saying, “other than what [prosecutor] said, I don’t see anything that I differ with.” At this point, the trial court then raised the merger, or double jeopardy issue. After explaining the question, defense counsel stated, “I know with all due deference, I know as far as the consideration of the counts, there’s multiple case law[s] that says it’s not double jeopardy for the jury to consider both counts.” Now, the defendant is attempting to challenge an issue that has been waived. Pursuant to established case law, expressly agreeing to the trial court’s instructions waives appellate review. However, even if this Court were to review Guevara’s claims, we find it does not violate double jeopardy. A person is guilty of incest when he engages in “sexual intercourse or deviate sexual intercourse with a person whom he or she knows to be a parent, child…” KRS 530.020(1). Incest is considered a Class A felony under KRS 530.020(2)(C)(1),2 if the victim is under twelve years old. Under KRS 510.070(1)(b)(2), a person is guilty of sodomy in the first-degree when he engages in “deviate sexual intercourse with another person who is incapable of consent because they are less than 12 years of age.” Sodomy 2 Incest statute KRS 530.020 was amended effective June 29, 2023. The amendment updated the felony classification guidelines to align with sentencing guidelines.

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9 requires age as an element, while incest requires familial relation. On its face, the two statutes each require an element that the other does not. O.G. being under twelve at the time of the offenses was an element for sodomy. Without a finding of age beyond a reasonable doubt, there could not be a conviction of sodomy. For incest, age was not required to support a conviction but was used as a classifying factor. In looking to the charges of sodomy and incest, there is case law that establishes age is not an element in incest. Johnson v. Commonwealth, 292 S.W.3d 889, 897 (Ky. 2009) (overruled on other grounds by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020)). This Court has held: where section (1) of the statute does not mention age, subsection (2)(a) clearly characterizes incest between consenting adults as a Class C felony. After reading both sections of the statute together, it becomes clear that the age of the victim is not an element of the offense of incest, except for determining the class of the felony committed. Howard v. Commonwealth, 484 S.W.3d 295, 297 (Ky. 2016). The claims of sodomy and incest do not implicate double jeopardy, as they both require an element the other does not. The trial court did not err by instructing the jury on both claims. B. The trial court did not err by declining to strike a juror based on mouthing words to a witness. Before the jury was instructed during the guilt phase of the trial, defense counsel informed the trial court that the interpreter assigned to Guevara observed a juror mouthing words to the victim witness O.G. After requesting to strike the juror, Defense counsel asked that the interpreter be allowed to

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10 testify. The trial court reluctantly allowed the interpreter to testify, noting that it was not unusual for jurors to have reactions to testimony. The interpreter was sworn in and testified that after O.G. testified and was leaving the witness stand, she watched the jury and noticed a woman mouth something in the direction of O.G. The interpreter did not hear anything. She could not testify as to what was said, or whether O.G. saw the juror because someone was standing between O.G. and the jury, but believed the juror mouthed “you did a good job.” However, O.G. did not respond to the juror. On the Commonwealth’s cross examination of the interpreter, she clarified she was unable to see O.G. but assumed O.G. was looking in the direction of the juror. The trial court determined there was not sufficient evidence that prejudiced the defendant to excuse the juror. Defense counsel argued that the discussion between the juror and O.G. was about the case and was extremely prejudicial to Guevara. Counsel further argued that the juror should be excused. The trial court ruled the juror should not be excused. It determined that although it was unclear as to exactly what was said, the juror did mouth something. It was unknown whether O.G. saw or heard the juror, and there was no evidence that any other juror was aware of the interaction. The trial court noted the allegations did not rise to the level of juror misconduct, but it would remind the jurors not to have any contact with witnesses.

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11 Guevara argues this communication rose to the level of juror misconduct, which prejudiced the defendant, and the juror should have been stricken. Standard of Review “A trial court’s decision whether to remove a juror from a panel that has already been seated is reviewed for abuse of discretion.” Lester v. Commonwealth, 132 S.W.3d 857, 863 (Ky. 2004) (citing Hubbard v. Commonwealth, 932 S.W.2d 381, 382 (Ky. App. 1996)). The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id; citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). Discussion To begin, the Sixth Amendment of the United States Constitution and § 11 of the Kentucky Constitution guarantee and protect the right to a fair trial of impartial and indifferent jurors. The requirement of impartiality implies there is a jury that is willing and able to decide the case solely based on the evidence introduced at trial and the instructions of the court. Paulley v. Commonwealth, 323 S.W.3d 715, 721 (Ky. 2010). Under RCr 9.32(1), an alternate juror may be chosen by the agreement of the parties and the Court; otherwise, the alternate shall be selected randomly before the jury retires to deliberate. This Court has held that it sometimes becomes necessary to excuse a juror other than by agreement or random selection. Nunley v. Commonwealth, 393 S.W.3d 9, 14 (Ky. 2013). However, this process is not designating a juror

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12 as an alternate; it is striking a juror for cause. Id. In striking a juror for cause, it must be shown that a juror cannot be fair and impartial based on the evidence admitted at trial and the instructions. It must be shown that the juror has an established bias that would affect their evaluation of the evidence presented at trial. Montgomery v. Commonwealth, 819 S.W.2d 713, 718 (Ky.1991). KRS 29A.310(2) provides as follows: No officer, party, or witness to an action pending, or his attorney or attorneys shall, without leave of court, converse with the jury or any member thereof upon any subject after they have been sworn. To determine a violation of KRS 29A.310(2), it must be determined whether the communication was harmful or innocent. Oro-Jimenez v. Commonwealth, 412 S.W.3d 174, 181 (Ky. 2013). In Oro-Jiminez, this Court noted that the contact made by the juror in that case pertained to the comfort or well-being of an important witness and did not relate to the substance of the trial. Id. Specifically, the witness had testified and was waiting to get on the elevator. A juror then stated, “I am sorry you had to go through that.” Id. at 180. This communication happened after testimony, but notably, it occurred outside of the presence of the jury. The trial court held that mistrial was not required because the conversation was innocent and not a matter of substance. Id. at 181 (citing Talbott v. Commonwealth, 968 S.W.2d.76, 86 (Ky. 1998)). This Court affirmed the trial court’s ruling that the communication was harmless because it was not calculated to corrupt the proceeding and did not prejudice

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13 the jury. Id. The true test is whether the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. Talbott, 968 S.W.2d at 86. In Talbott, a witness for the Commonwealth was seen speaking with three jurors. However, the trial court investigated the statements and determined that none of the conversations had any relationship to the case. The trial court found the violation was harmless. In the case at hand, there was a violation of KRS 29(A).310(2). However, it was harmless error as the juror’s encouragement to the witness was not substantive. The interpreter’s testimony was uncertain as to the details of the act, and the effect of the act. She testified that she did not hear anything but saw the second woman in the front row of jurors get up from her chair, turn towards O.G., smile at her, and mouth something in her direction. O.G. was facing the juror, but someone stood between the interpreter and O.G., blocking O.G.’s face. O.G. did not appear to say anything back to the juror, but the interpreter was not able to see O.G. Further, assuming the interpretation was correct in that the juror said, “you did a good job,” nothing of substance was present in the encounter. There is nothing that the juror said in the courtroom that could not be said in deliberation. The juror may have been showing empathy, but the exact words, if any, are unknown. Furthermore, there is no evidence that any other juror noticed or acknowledged the statement. As the interpreter testified, she did not hear anything. As the video showed, most of

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14 the jurors were writing with their heads down. Therefore, the defendant suffered no prejudice because of this communication. Of importance, however, we note the difference in this case from the other cases cited. In this case, there was a higher possibility of prejudice. The trial was ongoing. The parties, jurors, witnesses, and court personnel were still in the courtroom. Court was not in recess. This Court emphasizes the importance of KRS 29A.310(2) and its purpose: to ensure every person is entitled to a fair and impartial jury. C. The trial court did not err when it reversed its decision on the admissibility of the Cabinet letter. During Guevara’s trial, the Commonwealth called social worker Beller to testify to her interviews with O.G. and M.G., regarding the abuse. During cross-examination, defense counsel sought to introduce a letter sent by Ms. Beller to Laura, concerning an unsubstantiated claim of abuse upon M.G. The Commonwealth objected on grounds of hearsay, and that the Cabinet’s determination was not relevant because it was an opinion. Defense counsel argued for using the letter to combat or impeach Mosley’s testimony regarding the alleged abuse towards M.G. Defense counsel explained the letter was a conclusion, and not an opinion. Ultimately, the trial court noted Kentucky Rules of Evidence (“KRE”) 803(8)(c) pertains to information being offered by the government, and it determined that the letter was admissible under KRE 803. After admitting the letter, the trial court reversed itself and determined the unsubstantiated claims are not admissible. It changed its ruling and provided

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15 an admonition to the jury. Guevara now argues that the trial court erroneously excluded the letter. Standard of Review A trial judge’s ruling as to the admissibility of evidence is reviewed under an abuse of discretion standard. King v. Commonwealth, 554 S.W3d 343, 358 (Ky. 2018). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Discussion “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” KRE 801. Hearsay evidence is generally not admissible at trial, subject to some exceptions. KRE 803. KRE 803(8) concerns the hearsay exception to public records and reports. KRE 803(8)(C) limits the exception, stating factual findings offered by the government in criminal cases are not admissible. In Jordan v. Commonwealth, this Court examined exactly the issue upon which Guevara now seeks relief. 74 S.W.3d 263 (Ky. 2002). In Jordan, the Commonwealth attempted to introduce a document from the Department for Social Services Initial Child Abuse/Neglect/Dependency Investigation form that substantiated allegations of sexual abuse. Id. at 267. Jordan relied on Prater v. Cabinet for Human Res., to hold “such records are hearsay and cannot be

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16 admitted as a public record or report under KRE 803(8) and can only be admitted as a record of regularly conducted activity under KRE 803(6) if that provision’s more stringent requirements are met.” 954 S.W.2d 954, 958 (Ky. 1997). This Court went on to hold “the recorded opinions and conclusions of social workers are not admissible,” and a social worker’s “professional determination” that an allegation of abuse is “substantiated is nothing more than improper opinion testimony.” Jordan, 74 S.W.3d at 269. In Prater, the Court held that observations of social workers are admissible if the party testifies at trial, however, conclusions are not admissible because the social workers are not qualified to offer expert opinions. Prater, 954 S.W.2d at 958. In this case, Ms. Beller testified at trial. However, her letter stated a conclusion that the allegations of child abuse towards M.G. were unsubstantiated. Defense argued the letter was a conclusion, and not an opinion. However, this ignores our precedent. In either case, opinions and conclusions are not admissible by a social worker, as referenced above. Therefore, Defendant’s claim fails, and the trial court did not err in reversing its decision admitting the letter. D. The trial court did not err when admitting Eddie Mosley’s interviews. After defense finished its cross-examination of Mosley, the Commonwealth inquired about admitting two recorded interviews of Mosley speaking with a detective. The Commonwealth sought to introduce the videos under KRE 613 and 801(a) citing their concerns over inconsistent statements. Defense did not object to playing the videos but objected to any mention of

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17 immigration or deportation. However, the Commonwealth failed to mute the video at all necessary places. The statements played to the jury included: discussion that Guevara would take responsibility by being deported, the detective noting Guevara’s English is “a whole lot better than you think,” the detective further stated “that Amish people don’t know incest is wrong,” and a statement “that people from El Salvador don’t know it is wrong to molest their children.” Defense did not contemporaneously object. Defense now claims an objection to the videos being played, and statements from the video. Defense argues that this issue should be reviewed under an abuse of discretion standard; however, this is the first time this issue has been raised. Unlike the claims related to the Cabinet letter, the claims concerning the admission of the videos were not preserved at trial and will now only be reviewed for palpable error. Discussion Guevara argues that the videos should not have been admitted because of the prejudicial statements. However, Defense failed to object to the admission of the videos, or when the statements were played. As such, the issue is not preserved and is reviewed under a palpable error standard. In turn, manifest injustice must be present. Defendant contends that it is the responsibility of the trial court judge to ensure only relevant evidence is placed before a jury. On this point, we agree. However, at this stage in the trial, the trial court judge had not yet seen the

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18 video. If a party does not object, it must not be expected for the trial judge to sua sponte exclude the evidence. Although we are troubled by the substance of the statements from the video described above, manifest injustice is not present here. There is substantial additional evidence that supports the verdict of the jury. Further, the statements at issue were made by the Commonwealth’s witness, and the harm to the Commonwealth is arguably more apparent than harm to the defendant. Mosley is a Commonwealth witness. Mosley admitted he was a sex offender, and there is no evidence that the Commonwealth purposefully failed to mute the video. Accordingly, while the statements in the video warrant caution, Guevara has not demonstrated palpable error requiring reversal. CONCLUSION For all of the foregoing reasons, we affirm the judgment of the Logan Circuit Court. All sitting. Bisig, Goodwine and Thompson, JJ., concur. Nickell, J., concurs in result only by separate opinion which Lambert, C.J.; and Conley, J., join. NICKELL, J., CONCURRING IN RESULT ONLY: I agree wholeheartedly with the majority’s conclusion that Guevara expressly agreed to the trial court’s proposed instructions after conceding that a person can be convicted of both sodomy and incest stemming from the same sexual attack and therefore invited any resulting error, foreclosing his ability to subsequently challenge the instructions on appeal. The law distinguishes “between forfeited errors, which

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19 are subject to plain error review, and waived errors, which are not[.]” Quisenberry, 336 S.W.3d 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)). 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 rule is not something of recent vintage. In Wright v. Jackson, 329 S.W.2d 560, 562 (Ky. 1959), our predecessor Court declared that “[w]e have often held that a party is estopped to take advantage of an error produced by his own act. Stanley in his Kentucky Instruction to Juries, sec. 38, p. 64, states that this same principle of law applies to any instruction submitted to the jury.” (Internal citation omitted). As noted by the majority, we recently reaffirmed that rule in Boggs. Because Guevara invited the alleged error, that ends the inquiry. Yet, after so concluding, the majority proceeds to opine on the merits of Guevara’s claim. It is here where I part ways with the majority. Once an issue is determined to be waived, no further commentary is necessary. See e.g., Howard v. Commonwealth, 595 S.W.3d 462, 475 (Ky. 2020); Rudd v. Commonwealth, 584 S.W.3d 742, 746 (Ky. 2019); Mullins v. Commonwealth,

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20 350 S.W.3d 434, 439 (Ky. 2011); Turner v. Commonwealth, 345 S.W.3d 844, 846 (Ky. 2011); Dudley v. Stevens, 338 S.W.3d 774, 777 (Ky. 2011). Based on our long-standing procedural rule relative to preservation of instructional errors and Guevara’s express waiver, I would decline to address the merits of his double jeopardy claim relative to the instructions on sodomy and incest. I reiterate my longstanding view that this Court should endeavor to maintain consistency and uphold our procedural rules which “are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination.” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (quoting Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007) (quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977))). “I remain steadfast in my belief ‘each time we do not strictly apply the rules we erode them.’ Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016). Without form, chaos ensues.” M.A.B. v. Cabinet for Health & Family Servs., 635 S.W.3d 90, 97 (Ky. 2021) (Nickell, J., dissenting). Guevara should not now be heard to complain, and I would “leave this question for another day.” Dunn v. Solomon Found., 723 S.W.3d 711, 734 (Ky. 2025) (quoting Kulkarni v. Horlander, 701 S.W.3d 181, 189 n.8 (Ky. 2024)). For these reasons, I respectfully concur only in the result. Lambert, C.J.; and Conley, J., join.

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21 COUNSEL FOR APPELLANT: Jennifer Leigh Wade Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Kentucky Attorney General Kristin Leigh Conder Assistant Attorney General

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