Background
Cameron T. Luck was convicted of fifteen offenses involving sexual images and videos, including promoting a sexual performance by a minor and possessing or viewing matter portraying a sexual performance by a minor. He received concurrent sentences totaling twelve years. His appeal challenged only Counts 5 through 14, which arose from five videos found on his phone; he did not challenge Counts 1 through 4 or Count 15.
Luck had uploaded photographs of his minor stepsister, E.S., to a website where users created sexually explicit “tribute” videos. Although the photographs showed E.S. clothed and engaged in ordinary, nonsexual conduct, unknown males incorporated them into videos simulating sexual acts involving her. Four videos showed males masturbating over her photographs in ways simulating oral or anal sex, while another showed a person penetrating a torso-shaped sex toy with a photograph of E.S.’s face positioned as the figure’s head.
Luck moved generally for a directed verdict at trial but did not specifically argue that the Commonwealth had failed to prove “sexual conduct by a minor.” Because that general motion did not preserve his appellate theory under Kentucky’s specificity requirement, the Court of Appeals reviewed his sufficiency claim only for palpable error.
The Court’s Holding
Judge Karem’s opinion, joined by Judge Moynahan, concluded that the videos satisfied the versions of KRS 531.300, KRS 531.320, and KRS 531.335 applicable when the offenses occurred. Although E.S.’s original photographs were not sexual, the resulting videos used her image to simulate sexual acts and made her the subject of the depicted conduct. Relying on Logston v. Commonwealth, the opinion reasoned that each recording had to be considered as a whole rather than by isolating the originally nonsexual photograph.
The opinion also observed that the videos depicted male participants exposing themselves and engaging in masturbation or intercourse with a sex toy, and it found no authority limiting the statutory reference to obscene exposure of genitals to the minor victim’s body. It therefore held that the trial court did not err—much less commit palpable error—by denying Luck’s directed-verdict motion and affirmed the convictions on Counts 5 through 14.
Judge Moynahan concurred in Judge Karem’s opinion. Judge A. Jones concurred in the result only and therefore did not join the opinion’s reasoning.
Key Takeaways
- A general directed-verdict motion did not preserve Luck’s specific argument that the Commonwealth failed to prove “sexual conduct by a minor,” limiting appellate review to palpable error.
- Judges Karem and Moynahan concluded that videos using otherwise nonsexual photographs of a minor to simulate sexual acts could constitute a “sexual performance” under the statutes applicable to Luck’s offenses.
- The panel unanimously affirmed the result, but Judge A. Jones concurred only in the result rather than joining the majority’s statutory analysis.
Why It Matters
The opinion applies Kentucky’s pre-July 2024 child-sexual-performance statutes to videos created by combining ordinary photographs of a minor with adults’ explicit conduct. Its analysis indicates that a court may evaluate the completed recording as a whole and treat the minor as the subject of simulated sexual conduct even though the underlying photograph was not itself sexual.
The case also underscores the need to state the precise evidentiary deficiency when moving for a directed verdict in a Kentucky criminal trial. Because Luck’s motion lacked that specificity, he received only the more demanding palpable-error review on appeal. The opinion is designated “Not to Be Published.”