Paul Jones v. Commonwealth of Kentucky - Trafficking Conviction Reversed for Moss Violation

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April 23, 2026 Get Citation Alerts Download PDF Add Note

Paul Jones v. Commonwealth of Kentucky

Kentucky Supreme Court

• Citations: None known
• Docket Number: 2024-SC-0423
• Judges: Conley

• Disposition: OPINION OF THE COURT

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (64.5K)

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Disposition

OPINION OF THE COURT

Combined Opinion

RENDERED: APRIL 23, 2026
TO BE PUBLISHED

Supreme Court of Kentucky
2024-SC-0423-MR

PAUL JONES APPELLANT

ON APPEAL FROM BATH CIRCUIT COURT
V. HONORABLE DAVID A. BARBER, JUDGE
NO. 21-CR-00062

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CONLEY

REVERSING AND REMANDING

Appellant, Paul Jones, appeals as a matter of right 1 from a Bath Circuit

Court judgment convicting him of first-degree trafficking in a controlled

substance, first offense, and of being a first-degree persistent felony offender.

He argues that the Commonwealth committed misconduct during his cross-

examination and closing argument by violating the rule set out in Moss v.

Commonwealth, 949 S.W.2d 579 (Ky. 1997), and that the trial court’s

amendment of his sentence from ten years to twenty was improper. The

Commonwealth argues that no reversible Moss violation occurred and that the

amended sentence was permissible, but also argues, at the threshold, that

Jones’s conviction-related claim is untimely.

1 KY CONST. §110(2)(b).
We hold that Jones’s appeal is properly before this Court; that the

Commonwealth’s cross-examination of Jones violated Moss; and that, in the

particular circumstances of this trial, the resulting misconduct was palpable

and requires a new trial. Because we reverse Jones’s conviction and remand for

a new trial, we do not decide the parties’ dispute concerning the later

resentencing proceedings.

I. Facts and Procedural History

The Commonwealth’s proof centered on a controlled buy conducted

through confidential informant Brian Wilson. Police searched Wilson before

and after the buy, observed him enter Jones’s residence, and recovered

methamphetamine after he emerged. The police did not, however, observe what

occurred inside the residence. The trial record alludes to an audio recording

device fitted to Wilson, and to an audio recording that was apparently

inconclusive. The Commonwealth did not play any such recording for the jury

or seek to enter the same into evidence. Jones testified that Wilson did not buy

drugs from him at all, but instead interacted with a woman who was present

there. Thus, although some parts of the Commonwealth’s proof were not

disputed, the core factual dispute concerned what happened during the period

Wilson was inside the residence and, more specifically, who sold him the

methamphetamine.

The defense theory was correspondingly clear. From opening statement

forward, the defense attacked Wilson’s credibility and sought to show that the

case depended on whether the jury believed him. Evidence was presented,

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through the testimony of the leading officer on the case (Officer Southerland) as

well as through that of Wilson himself, that Wilson had been stopped for DUI

while on probation for drug trafficking; that an apparent controlled substance

was found in his vehicle; that no charge was brought in connection with that

substance; that the substance was never tested; that Wilson offered to help

police gather evidence against Jones in response to this arrest; and that Wilson

worked with police only in this case. The defense also elicited agreement from

Officer Southerland on cross-examination that police were relying on Wilson’s

account for what occurred during the unobserved interval inside the residence.

Jones testified in his own defense. The prosecutor’s cross-examination of

Jones was brief. As the video record reflects, it lasted only about five minutes

and consisted of roughly ten substantial questions. Nearly all of those

questions were directed at the same point: attacking Jones’s credibility and

neutralizing his effort to portray Wilson as the witness whose trustworthiness

the case depended upon. Within that short examination, the prosecutor asked

three questions that are the focus of this appeal: (1) after referencing Wilson’s

testimony that he had purchased narcotics from Jones before, the

Commonwealth asked, “So he just made that up?”; (2) after establishing that

Jones used methamphetamine and denied selling methamphetamine to Wilson,

the Commonwealth asked, “You just happened to have methamphetamine, use

methamphetamine, and then Mr. Wilson is not telling the truth?”; and (3) after

reciting Wilson’s admissions that he was a felon, had received a DUI, and had

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purchased narcotics from Jones, the Commonwealth asked, “But your

testimony today is that that’s not accurate?”

Defense counsel did not object to these questions. The jury convicted

Jones. It recommended a five-year sentence on the trafficking conviction, later

enhanced to twenty years by the PFO finding. On June 6, 2024, the circuit

court orally pronounced a ten-year sentence and entered a signed docket entry

reflecting five years enhanced to ten years. The court later reopened

sentencing, held a further hearing, and stated that the ten-year sentence had

been based on mistaken information found in the pre-sentence investigation

report. It then entered an amended AOC-450 judgment on August 19, 2024

imposing a twenty-year sentence. Jones filed his notice of appeal from that

August judgment.

II. Jones’s appeal of his conviction is properly before this Court.

The Commonwealth first contends that Jones’s challenge to his

conviction must be dismissed as untimely. Its argument is that if the June 6,

2024 docket entry was a final judgment, as Jones himself would have it when

pressing his argument on the re-sentencing issue, then Jones had to file a

notice of appeal within thirty days of that entry. Because Jones instead

appealed from the later August 19 judgment that followed the amended

sentence, the Commonwealth says the only timely appealed matter is the later

sentence, not the conviction-related Moss claim.

We are not persuaded.

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A defendant has 30 days to file an appeal from a final judgment of

conviction. Ky. R. App. P. (RAP) 3(A)(1). The final judgment includes the

sentencing decision by the court. Ky. R. Crim. P. (RCr) 11.04. However, this

case does not present the ordinary situation in which a trial court enters

judgment, the case becomes fixed, and a party simply declines or otherwise

fails to appeal. After the June 6 sentencing proceeding, the circuit court signed

an order on June 14 placing the case back on the docket “to correct

Defendant’s sentence on the record.” That order was entered June 17. A

further sentencing hearing was then held in August, and the circuit court later

entered the amended AOC-450 judgment sentencing Jones to twenty years on

August 19, 2024. In other words, while the time to file an appeal from a final

judgment is thirty days, only eleven days had passed since the June 6

sentencing proceeding when Jones received notice that the trial court sua

sponte was claiming to reopen the matter. At that point, Jones waited for that

re-hearing and its result, and then timely filed his notice of appeal, including

his arguments regarding the conviction itself and the re-sentencing together in

the one appeal.

The Commonwealth seems to contend that Jones should have appealed

the conviction within thirty days of the June 6 entry, while waiting to see what

would happen regarding the sentence at a rehearing that was still in the

future, and then filed a separate appeal to the re-sentencing. First, this is

incorrect on the merits, as we will discuss shortly. But even if the

Commonwealth were correct that this is what should have been done,

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dismissal of the appeal would still be unwarranted. When counsel’s negligence

costs an indigent defendant his statutory right of appeal, the proper remedy is

“at least” a reinstated or belated appeal. Moore v. Commonwealth, 199 S.W.3d

132, 139 (Ky. 2006). Jones has consistently sought appellate review, and his

reply brief expressly requests the functional equivalent of belated-appeal relief

in the alternative. Under these circumstances, we would decline to mandate

the empty formality of dismissing this appeal only to permit the same case to

return through a separate belated-appeal procedure.

Turning to the merits, however, in this procedural posture, Jones’s

appeal was not untimely. We decline to hold that Jones forfeited (non-belated)

appellate review of his conviction by failing to file a separate merits appeal

while the trial court itself had reopened sentencing and was actively conducting

further proceedings.

Our holding is narrow. We do not hold that every later amended criminal

judgment restarts the time for appeal. Nor do we decide whether the June 6

docket entry constituted a final judgment for all purposes implicated by the

parties’ resentencing dispute. It is enough to say that, where the trial court

reopened sentencing within the thirty-day period for filing a notice of appeal,

conducted a later sentencing hearing, and then entered the judgment from

which the defendant appealed, a timely appeal from that later judgment may

proceed against both the conviction and the re-sentencing that caused the

delay.

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III. The Commonwealth’s cross-examination of Jones violated Moss.

Kentucky law has long prohibited forcing one witness to characterize

another witness’s testimony as a lie or otherwise to opine directly on another

witness’s truthfulness. See Moss, 949 S.W.2d at 583; Duncan v.

Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010); Barrett v. Commonwealth, 677

S.W.3d 326, 340–41 (Ky. 2023). The reason is plain. Such questioning invades

the jury’s role as the sole judge of credibility and unfairly places the witness in

a position where his own testimony is made to appear crude, hostile, or

unbelievable simply because he rejects another witness’s account. The Moss

prohibition exists “to prevent a witness from being presented in an unflattering

light from which he could not recover in the eyes of the jury.” Luna v.

Commonwealth, 460 S.W.3d 851, 880 (Ky. 2015).

The Commonwealth argues that no Moss violation occurred because

Jones’s testimony already implied that Wilson was lying, and the prosecutor

was only verbalizing that implication. But factfinders have to sort through

mutually-exclusive stories all the time. It is the charge of the litigants to

provide evidence to persuade the finder of fact that their version of the

underlying events is the correct one. The jury may infer that there is a

contradiction -- i.e. “if X is correct then Y must be incorrect” -- but Moss

forbids compelling the witness to assert the contradiction directly. That a

defendant’s theory necessarily implies that another witness is mistaken or

untruthful does not authorize the prosecutor to compel the defendant to adopt

the formulation that Moss forbids.

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Notably, even the cases the Commonwealth cites for its argument that

the questions were not even Moss violations, such as Newman v.

Commonwealth, 366 S.W.3d 435, 451 (Ky. 2012), and Parker v. Commonwealth,

482 S.W.3d 394 (Ky. 2016), do not state that no Moss violation occurred. This

Court in Newman found that there was no palpable error in part because of the

nature of the defendant’s defense, but the questions in that case were still

Moss violations. Newman, 366 S.W.3d at 442. And in Parker, we held that a

proposed distinction between being mistaken and lying did not need to be

analyzed, because even if Moss violations occurred, they would not have been

palpable under the conditions of that case. Parker, 482 at 442. Multiple

questions in this case pertained to accusing the witness of lying, not merely of

being mistaken, and so the distinction briefly considered in Parker remains of

no use here.

Turning to the particular questions challenged in the appeal, the first two

challenged questions were direct Moss violations. After asking Jones whether

he had heard Wilson testify that he had bought narcotics from Jones before,

the prosecutor asked, “So he just made that up?” Later, after eliciting that

Jones used methamphetamine and denied selling methamphetamine to Wilson,

the prosecutor asked, “You just happened to have methamphetamine, use

methamphetamine, and then Mr. Wilson is not telling the truth?” Those

questions did not merely illuminate a discrepancy in testimony, or contrast two

irreconcilable accounts. They required Jones to answer in precisely the

forbidden liar-or-truth-teller format. The first question demanded that Jones

8
say Wilson “made that up.” The second demanded that Jones say Wilson was

“not telling the truth.” Both violate Moss.

The third question, viewed in isolation, is closer: after reciting Wilson’s

admissions that he was a felon, had gotten a DUI, and had purchased

narcotics from Jones, the prosecutor asked, “But your testimony today is that

that’s not accurate?” Standing alone, that question might be characterized as a

mere restatement of conflicting evidence, or as an assertion that the other

witness was merely “mistaken” rather than lying (if this Court were of a mind

to draw such a distinction when it comes to Moss violations, as was requested

in Parker). But it did not occur in isolation. It came after the two earlier liar-or-

truth-teller questions and was part of the same short, concentrated cross-

examination. In context, it served the same function. It again forced Jones to

reject Wilson’s account in the prosecutor’s preferred framing rather than

simply allowing the jury to compare the two witnesses’ testimony for itself.

IV. In the circumstances of this trial, the misconduct was palpable.

Because the issue is unpreserved, Jones is entitled to relief only if the

error was palpable under RCr 10.26. A palpable error is one that results in

manifest injustice. In the context of prosecutorial misconduct, the question is

whether the misconduct was so improper, prejudicial, and outcome-significant

that there is a substantial possibility the result would have been different

absent the error. See Brafman v. Commonwealth, 612 S.W.3d 850 (Ky. 2020).

There are four factors a court must consider when determining whether the

misconduct rises to this level: (1) whether the misconduct tended to mislead

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the jury or prejudice the accused; (2) whether it was isolated or extensive; (3)

whether it was deliberate or accidental; and (4) the strength of the evidence

against the accused. Id., at 861.

We have in multiple cases pointed out that unpreserved Moss violations

have never yet been found to be palpable error. See, e.g., Barrett at 342; Parker

v. Commonwealth, 482 S.W.3d 394, 406 (Ky. 2016). But these sorts of

statements summarizing past findings are not a rule that no Moss violation can

be palpable error. Indeed, how could that be? Palpable error is reviewed on a

case-by-case basis; and if an error is real, then it might turn out to be palpable

under the circumstances of a given case. Moss has long drawn a clear line that

it is error for a prosecutor to force one witness to characterize another as lying

or “not telling the truth.” That line has not become unenforceable merely

because palpable-error relief has previously been denied on the particular facts

before this Court in other cases. To the contrary, the repeated need to identify

Moss violations while withholding relief confirms only that the inquiry remains

case-specific. Meadows does not hold otherwise.

We do not hold that every unpreserved Moss violation warrants reversal.

Most do not; in fact as Meadows correctly pointed out, thus far no case on

which we have ruled has. 2 But we also cannot understand Moss and its

progeny to create a rule of practical impunity. If repeated liar-or-truth-teller

2 Though it is an unpublished Court of Appeals opinion and not binding

precedent per RAP 41(a), Ceraulo v. Commonwealth, No. 2023-CA-0625-MR, 2024 WL
4644782, at *4 (Ky. App. Nov. 1, 2024) demonstrates that Kentucky appellate courts
do not treat palpable-error relief for unpreserved Moss errors as categorically
unavailable.
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questions aimed at the central credibility issue in a tightly contested trial could

never amount to palpable error, then the rule announced in Moss is essentially

toothless. We decline to treat it that way.

The Commonwealth proved that Wilson entered Jones’s residence under

surveillance and emerged with methamphetamine. But the Commonwealth did

not prove who sold the methamphetamine to Wilson while he was inside,

unless you believe Wilson’s account (and discount Jones’s). The

Commonwealth’s case against Jones depended on Wilson’s account.

In these circumstances, we have struck upon a case in which Moss

errors were palpable. This was not a case in which the improper questions

touched only a collateral contradiction. Nor was it a case in which abundant

independent proof rendered the witness-to-witness credibility dispute

incidental. The case rested on Wilson. The defense developed multiple facts

from which the jury could question Wilson’s credibility: his DUI arrest, his

probationary status, the apparent controlled substance found in his vehicle,

the absence of charges concerning that substance, the lack of testing of that

substance, and his one-shot role as a confidential informant who worked with

police only in this case. On top of that, Officer Southerland admitted on cross-

examination that police were relying on Wilson for the critical gap during the

unobserved interval inside the residence. The defense did not merely assert

that Wilson was untrustworthy. It gave the jury concrete reasons to scrutinize

him.

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That is why the Commonwealth’s use of Moss-violating questions created

a substantial possibility that the verdict was affected. When credibility is

central, Moss-violating questions aimed at the defendant are live fodder for

palpable error. By the time the Commonwealth reached its cross-examination

of Jones — the last witness of the case — it had every reason to recognize that

Jones’s credibility attack on Wilson was the central obstacle to conviction. The

case turned on the jury’s assessment of credibility between these two witnesses

regarding the unobserved event inside the residence.

In that moment, rather than simply exposing inconsistencies, making its

best arguments as to why it had the better of the credibility issue during its

closing statement, and letting the jury do its work, the prosecutor resorted to

Moss-violating formulations to cast Jones’s defense in an inaccurately negative

light. This was manifestly unjust in this particular case because the

inaccurately negative light was being cast on the central issue of the case.

In terms of the considerations required for a misconduct analysis in

cases such as Brafman, all four factors weigh towards palpable error in this

case. First, the improper questions prejudiced the accused. The questions went

directly to the one point the jury most needed to assess independently: whether

Wilson should be believed about the identity of the seller. By forcing Jones to

characterize Wilson’s testimony in liar-or-truth-teller terms, the prosecutor

reshaped the conflict into a form that unfairly burdened Jones’s defense. The

jury was not simply invited to decide which witness was more credible. Jones

was made to look as though his defense amounted to nothing more than

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branding Wilson a liar to save his own skin. In reality there was substantial

evidence to challenge Wilson’s credibility without any testimony from Jones.

The jury must decide that question of credibility, but it must be framed

properly for them to do so. If credibility is the central issue in a case, then a

Moss error is likely to be prejudicial, and it was in this case.

The circumstances also indicate that the improper questions were

deliberate rather than accidental, and that they were not isolated or stray

incidents. The brevity of the exchange does not cut against Jones in this case,

but for him. In some cases, a short exchange suggests an isolated misstep.

Here, the entire examination was short because it was focused. Three of the ten

questions were Moss violations. The prosecutor used a meaningful fraction of a

very brief cross-examination to hammer the precise forbidden theme. The

concentration of the improper questioning underscores the centrality of the

credibility battle, and the Commonwealth’s deliberate focus on that issue. The

Moss questions were neither isolated nor accidental.

Finally, the strength of the evidence also weighs in favor of finding the

errors palpable. The evidence was sufficient to go to the jury, but sufficiency is

not the point. The point is whether the Commonwealth’s proof of the decisive

disputed fact — who sold the methamphetamine inside the residence — was so

strong that the improper questioning could not have mattered. It was not. As

we have observed previously, “the witness who affirms, and the accused who

denies, make an equal balance.” Masters v. Commonwealth, 724 S.W.3d 751,

768 (Ky. 2025) (quoting V Tucker's Blackstone 357 (St. George Tucker ed., The

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Lawbook Exchange, Ltd. 2011) (1803)). The Commonwealth’s only proof that it

was Jones who sold the drugs in the otherwise unseen transaction was to offer

a confidential informant to contradict Jones’s denial, and then to attack

Jones’s credibility relative to that witness in part by asking Jones Moss-

violating questions.

RCr 10.26 is case-specific. In this case, repeated Moss-violating

questions during a short and highly concentrated cross-examination created a

substantial possibility that the verdict was affected. 3 We therefore conclude

that, in the specific factual context of this case, the misconduct was flagrant

enough to amount to palpable error. Manifest injustice occurred.

V. We do not reach the resentencing issue.

The appellant also argues that the circuit court lacked authority to

increase his sentence from ten years to twenty years after the June 6

proceedings. Because we reverse Jones’s conviction and remand for a new trial,

3 Jones also points to the prosecutor’s closing argument emphasizing that

Wilson and the officers “had no reason to lie.” We do not treat the closing argument as
a separate, independent ground for reversal. But it is relevant to the prejudice and
misconduct analysis. The problem is not that the Commonwealth argued credibility.
Of course it could do so. The problem is that, after using improper questioning to force
Jones into the liar-or-truth-teller posture, the Commonwealth then returned in closing
to the same ground by inviting the jury to view Wilson and the officers as having “no
reason to lie.” In a case where the defense had developed record-based reasons to
question Wilson’s motives, reliability, and credibility, and in which the officers by their
own admission had nothing to lie about in that they did not witness the disputed
transaction, that closing argument brushed aside real credibility concerns the jury
was entitled to weigh. The defense did not object to this statement either (as a
misrepresentation of the facts in evidence, for instance), and the jury was free to reject
this argument by the prosecutor if it found it unpersuasive. But it was much more
likely to find it persuasive because of the Moss-violating questions that had been
brought to bear against Jones on cross-examination. The closing argument therefore
aggravated the prejudice created by the improper cross-examination.

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we do not decide that resentencing dispute. Nothing in this opinion should be

read as resolving whether the June 6 entry constituted a final judgment for

resentencing-authority purposes, whether the error the court cited in the

resentencing hearing was clerical or judicial in nature, or whether the

sentencing issue would otherwise entitle Jones to relief. We addressed the

June-to-August procedural sequence above only as necessary to address the

Commonwealth’s threshold claim that the conviction-related appeal is

untimely.

VI. Conclusion

For the foregoing reasons, the judgment of the Bath Circuit Court is

reversed, and this matter is remanded for a new trial.

All sitting. Lambert, C.J.; Bisig, Goodwine, Nickell, and Thompson, JJ.,

concur. Keller, J., concurs in result only.

COUNSEL FOR APPELLANT:

Aaron Reed Baker
Kathleen K. Schmidt
Assistant Public Advocates

COUNSEL FOR APPELLEE:

Russell Coleman
Attorney General

J. Grant Burdette
Assistant Solicitor General

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