                                                     RENDERED: JUNE 16, 2016
                                                          -.1 T1) IBXRB1.1AffErti

                  0,Sularrntt Cum of 7r
                                   2014-SC-000447-MR
                                                        119       F
KEVIN B. HERP                                                         APPELLANT


                  ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                   HONORABLE JAMES M SHAKE, JUDGE
                              NO. 12-CR-001316


COMMONWEALTH OF KENTUCKY                                               APPELLEE



              OPINION OF THE COURT BY CHIEF JUSTICE MINTON

                            REVERSING AND REMANDING

      A circuit court jury convicted Kevin Herp of two counts of first-degree

sodomy and two counts of first-degree sexual abuse. The trial court sentenced

him to seventy years' imprisonment. He appeals the resulting final judgment to

this court as a matter of rights, alleging errors relating to the amendment of the

indictment and the content of the jury instructions denied him a fair trial.

Because we conclude the trial court abused its discretion in refusing to grant a

continuance after allowing amendment of the indictment at the beginning of

trial, we reverse and remand this case to the trial court.


                      I. FACTUAL AND PROCEDURAL BACKGROUND.

      Herp's criminal charges derive from accusations of inappropriate sexual

conduct from his nephew. In 2011, the nephew reported to the police that



      1   Ky.Const. § 110(b)(2).
Herp had molested him over twenty years earlier, around when he was a child

of eight or nine years old. In an interview with law enforcement, the nephew

recounted the contact began with Herp brushing his hands on the nephew's

genitals, and eventually led to masturbation, mutual masturbation, and oral

sex. The nephew's decision to go to the police after such a long period of time

stemmed from Herp's recent move back to Kentucky, and the nephew's desire

to prevent his uncle from abusing another child.

      Herp was indicted on two counts of first-degree sodomy (class A felony)

and two-counts of first-degree sexual abuse (class D felony). The indictment

detailed that the conduct in question occurred sometime between February 18,

1987 and February 17, 1989.

      On the opening day of trial nearly two years after indictment, the

Commonwealth moved to amend all charges in the indictment to include an

additional year in which the crimes may have occurred. So under the amended

indictment, the applicable period became between February 18, 1987, and

February 17, 1990. Herp objected to the modification. The trial court overruled

his objection and allowed the amendment. Herp then moved for a one-week

continuance, which the trial court denied. The trial court also denied a similar

motion for a two-day continuance.

      The jury convicted Herp of all charges. It recommended a thirty-five year

sentence for each sodomy offense and a five-year sentence for each sexual

abuse charge. The sentences were recommended to be served consecutively for

an eighty year total sentence. At final sentencing, the trial court reduced the

jury's recommendation to the maximum seventy-year sentence with no

possibility of parole for twenty years.
                                          2
                                        II. ANALYSIS.

       Herp presents two claims of error for our review. First, he contends that

the trial court erred in allowing the Col -nmonwealth to amend the indictment,

or in denying his motion for a continuance. Second, he claims that the trial

court submitted improper instructions to the jury that inadequately reflected

the Commonwealth's burden of proof. We will address each issue in turn.

   A. The Amended Indictment and Denial of Motions for Continuance.

       Herp's first claim before us is that the trial court erred in allowing the

Commonwealth to add an additional year to the range of time charged in the

indictment, or, alternatively, the trial court erred in denying his motions for a

continuance. Under the Kentucky Rules of Criminal Procedure (RCr), a

criminal defendant is entitled to an indictment or information containing a

"plain, concise and definite statement of the essential facts constituting the

specific offense with which the defendant is charged." 2 The rules also provide

that the court may permit an indictment to be amended at any time before

verdict if "no additional or different offense is charged and if the substantial

rights of the defendant are not prejudiced." 3 But in instances where

amendment is permitted, the court shall grant a continuance "if justice

requires." 4

      The rules expressly declare that the decision to allow the amendment of

an indictment is within the sound discretion of the trial court. So we will review

this decision in Herp's case under the abuse-of-discretion standard, and we



       2   RCr 6.10 (specifying the requirements of an indictment or information).
       3   RCr 6.16.
       4   Id.
                                              3
will not disturb the amendment absent a finding that the trial court's ruling

was "arbitrary, unreasonable, unfair, or unsupported by sound legal

principles." 5 And the same standard applies to a trial court's decision to grant

or deny a continuance in a criminal case. 6

       Indictment amendments to include an enlargement of time for the

commission of the offense are not new to this Court. Often times, such

amendments are proposed for reasons similar to this case—some offenses may

have occurred in the distant past and the prosecution simply wishes to put

forth an accurate timeline of when, roughly speaking, the events may have

occurred.

       In Gilbert v. Commonwealth, we allowed the prosecution to amend the

date of a defendant's alleged sexual misconduct with his stepdaughters from

the summer of 1985 to the summer of 1986. 7 We held that such an

amendment is not error when a defendant "did not base his entire defense on a

mix up in dates" and was not "surprised or misled" by the amendment. 8 And

we have repeatedly endorsed the position that the date of the occurrence of an

alleged offense can be changed by the amendment. 9 We think much of the

reasoning in Gilbert may be aptly applied to Herp's case.




       5   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
       6 See RCr 9.04. See also Hunter v. Commonwealth, 869 S.W.2d 719, 720-21 (Ky.
1994) ("It is quite settled that whether to grant a motion for continuance is well within
the sound discretion of the trial court.") (internal citations omitted).
       7   838 S.W.2d 376, 377 (Ky. 1991).
       8   Id. at 378.
     See Stephens v. Commonwealth, 397 S.W.2d 157 (Ky. 1965) and Anderson v.
       9
Commonwealth, 63 S.W.3d 135 (Ky. 2001).
                                             4
       In addition to no reliance on the date of offense in presenting a defense,

the Gilbert Court was also relatedly motivated by the defendant's total denial of

misconduct altogether. 10 So when no-date-specific defense is mounted—when

the defendant denies liability at any time—and when the specific dates are not

essential to the defense in the case, we did not consider amending the

indictment prejudicial. Like Gilbert, Herp is on trial for a sex crime, and he

denies any inappropriate behavior. But perhaps most importantly, the nature

of his alleged offense has not changed, and the amendment imposes no

additional criminality than he has faced throughout the entire criminal-trial

process. And he has offered no evidence that his defense is dependent on

specific dates.

       The indictment is intended to serve as a "plain, concise and definite

statement of the essential facts constituting the specific offense with which the

defendant is charged." The amendment does nothing to change that, and we

are confident there is no undue prejudice to Herp's capacity to defend himself

of the charges. So we must conclude that the trial court did not abuse its

discretion in allowing the Commonwealth to amend the indictment.

       Although Herp takes issue with the trial court's allowing the amendment,

to be sure, his real complaint appears to be the court's refusal to allow him a

continuance in light of the amendment. He twice moved for a continuance with

the trial court—first seeking a one-week continuance and later backing down to

a two-day request. Similar to a petition to amend an indictment, the decision to




       10   Gilbert, 838 S.W.2d at 378 ("he also denied any sexual impropriety with the
victims").
                                              5
grant or deny a continuance is one of judicial discretion, 11 and subject to the

abuse-of-discretion standard of review. 12

      RCr 6.16 provides: "The court may permit an indictment...to be

amended any time before verdict or finding if no additional or different offense

is charged and if substantial rights of the defendant are not prejudiced. If

justice requires, however, the court shall grant the defendant a continuance

when such an amendment is permitted." 13 In Snodgrass v. Commonwealth, we

articulated seven factors to aid trial courts in determining whether to grant a

motion for a continuance." In reviewing a timely motion, a court should

consider:

                1. The length of delay;
                2. Whether there have been any previous continuances;
                3. Inconvenience to litigants, witnesses, counsel, and the
                   court;
                4. Whether the delay is purposeful or caused by the
                   accused;
                5. The availability of other competent counsel;
                6. The complexity of the case; and
                7. Whether denying the continuance will lead to identifiable
                   prejudice. 15

We also made clear that the appropriateness of a continuance depends on the

unique facts and circumstances of the case. 16 Although Herp presented an

argument implicating all seven factors, the only true issue before us today is

       11 RCr 9.04 ("The court, upon motion and sufficient cause shown by either
party, may grant a postponement of the hearing or trial.") (emphasis added).
       12 See English, supra. See also Bartley v. Commonwealth, 400 S.W.3d 714, 733
(Ky. 2013) (denial of motion for continuance does not provide grounds for reversing a
conviction "unless that discretion has been plainly abused and a manifest injustice
has occurred").
      13   (emphasis added).
      14   814 S.W.2d 579 (Ky. 1991).
      15   Id. at 581.
      16   Id. (referring to Ungar v. Sarafite, 376 U.S. 575 589 (1964)).
                                              6
whether the trial court's decision to deny the continuance caused identifiable

prejudice. And we hold that it did.

      It is absolutely and unequivocally established that a constitutionally

effective criminal defense requires trial counsel reasonably to investigate the

circumstances of the alleged crime. "This Court has recognized the necessity

for complete investigation by defense counsel." 17 Herp's trial counsel was not

excused from that duty and Herp's right to effective counsel is not relegated to

a lesser standard of representation simply because the Commonwealth

suddenly discovered a potential problem with its proof.

      Herp's defense counsel first requested a continuance of one week so that

he could reasonably investigate the whereabouts of his client and the putative

victim during the newly added year of potential culpability. After that request

was denied, counsel renewed the request for a postponement, asking for only

two days. An effective defense requires, at least, an investigation of the newly

revealed circumstances thorough enough to allow counsel to make a reasoned

and deliberate determination whether further investigation is necessary to

develop a defense that may apply to the new circumstances. The failure to do

so is ineffective representation, a constitutional deficiency that is not cured

simply because counsel's failure to investigate was forced upon the defendant




        17 Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001) (overruled on other
grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). See also
Commonwealth v. Tigue, 459 S.W.3d 372, 394 (Ky. 2015) (quoting Strickland v.
Washington, 466 U.S. 668, 691 (1984)) ("While the duty to investigate is not absolute,
a less-than-complete investigation may be supported only by a reasoned and
deliberate determination that further investigation is not warranted. In other words,
counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.").
                                           7
by the Commonwealth's dilatory discovery of the facts and its opposition,

sustained by the trial court, to a modest delay of two days.

       More than 8,770 days passed between the last possible date of Herp's

alleged crimes and the beginning of his trial. More than 7,900 days passed

before Herp's nephew even reported the alleged crimes. All the defense counsel

asked for was two days to do what we say he is required to do: investigate to

determine if a plausible defense can be asserted. Justice required that Herp's

trial counsel be afforded that modest opportunity to carry out his duty to

provide effective assistance. Justice required that a prosecution deferred for

more than two decades could stand to wait two more days, and refusal to grant

that request was an abuse of the trial court's discretion. We accordingly reverse

and remand to the trial court for further proceedings consistent with this

opinion.

      We will now examine Herp's other issue on appeal for error capable of

repetition in the event of retrial.

   B. The Jury Instructions.

      For Herp's second claim of error below, he contends that the jury

instructions improperly verbalized the Commonwealth's burden of proof. The

instructions used in this case told the jury "You will find the Defendant, KEVIN

B. HERP, guilty under this Instruction if, and only if, you believe from the

evidence beyond a reasonable doubt, all of the following..." Herp contends that

a proper instruction should read: "You will find Kevin Herp not guilty...unless

you believe from the evidence alone and beyond the reasonable doubt all of the

following..." Although the decision to instruct the jury on a specific claim is


                                         8
committed to the trial court's discretion, the content of a jury instruction is an

"issue of law that must remain subject to de novo review by appellate courts." 18

      As his primary argument, Herp asserts that his proposed jury

instructions closely tracked the model instructions framed by Justice William

Cooper in his treatise on instructions to juries. And indeed, Cooper's treatise

does choose to frame model instructions under the "not guilty unless"

structure as opposed to the "guilty if" method used by the trial court in this

case. 19 Cooper favored his method because he considered this instruction both

to "properly allocate the burden of proof at the outset of instructions" and to

give the jury advance notice of its options. 20 But we have faced this precise

argument before in unpublished decisions and found the competing

instructions logically equivalent. And we reiterate that statement today.

      To us there is no logical difference between the two instruction

structures. It is rationally equivalent to say that one may not be guilty absent

proof of all the elements beyond a reasonable doubt, or that one may be guilty

if each element is proven beyond reasonable doubt. Essentially, the Cooper

instruction is something of a contrapositive to the instruction used in this case.

Herp seems implicitly to make this connection as well; in briefing he asserts

that his preferred way is the best way to convey the concept of the

presumption of innocence. That may indeed be true, but the best way to

instruct a jury is not the question before this Court. Rather, it is our task to



       18   See Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).
      19 Cooper and Cetrulo, Kentucky Instructions to Juries, Criminal §§ 2.01A-
2.01D (2006).

      20    Id. (comment).
                                             9
determine whether the trial court accurately stated the law in the instructions

to the jury. And normative considerations aside, we cannot say the form of the

instructions was incorrect.

      After briefs were filed in this case, Herp moved this Court seeking leave

to cite additional authority and to correct his brief. Particularly, he sought to

include our recent holding in Rodgers v. Commonwealth 21 as a point of

authority in this argument. We grant the motion and consider his argument.

Facing a nearly identical jury-instruction argument, we held that "the two

formulations are logically equivalent, and whatever may be their rhetorical

difference, if any, the 'guilty...if and only if' version adequately conveys to the

jury the conditions the Commonwealth's proof must satisfy to authorize a

guilty verdict." 22 Although Herp tries to make factual differences material

distinctions, there is nothing in Rodgers to suggest the trial court improperly

instructed the jury in the present case.

      Herp tangentially attempts to distinguish the logical identity and our

prior rulings on this matter by also critiquing the separate instruction on the

presumption of innocence. The United States Supreme Court held that failure

to instruct the jury on the presumption of innocence can result in a violation of

due process of law23 , although there are doubts to whether that entails a

separate explicit instruction detailing that legal standard under Kentucky

law. 24 But in this case, the trial court tracked Cooper's presumption-of-


       21   285 S.W.3d 740 (Ky. 2009).
       22   Id. at 760.
       23   See Taylor v. Kentucky, 436 U.S. 478 (1978).
       24See Patterson v. Commonwealth, 630 S.W.2d 73, 75 (Ky.App. 1982). This is a
Court of Appeals opinion that has received relatively little attention over the past three
                                           10
innocence definition as "Instruction No. 6" to the jury. This is also the exact

language found in RCr 9.56(1). 25 The trial court used an instruction expressly

endorsed by this Court 26 , and Herp is left only to argue that its placement at

the end of instructions and difference in logical structure from the other

instructions confused the jury.

      We have no reason to conclude that placing the presumption-of-

innocence standard in Instruction No. 6, as opposed to Instruction No. 1

makes the jury any less aware of the high evidentiary standard imposed on the

Commonwealth. And we are even more skeptical that use of "not guilty" in the

presumption instruction simultaneous with the "guilty" standard when

instructing on the substantive offenses resulted in prejudice to Herp.

      In sum, we cannot say the trial court improperly instructed the jury to

the level of reversible error.


                                  III.     CONCLUSION

       For the foregoing reasons, we grant Herp's motion to file additional

authority and correct his brief, and finding an abuse of discretion in refusing to

allow him a continuance, reverse and remand his case for further proceedings.

      All sitting. All concur.




decades, but nonetheless remains as valid precedent at the trial and intermediary
appellate level.
      25 "You shall find the defendant not guilty unless you are satisfied from the
evidence alone, and beyond a reasonable doubt, that he is guilty."
       26   See Mills v. Commonwealth, 996 S.W.2d 473 (Ky. 1999).
                                            11
COUNSEL FOR APPELLANT:

Daniel T. Goyette
Bruce P. Hackett
Office of the Louisville Metro Public Defender


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Perry Thomas Ryan
Assistant Attorney General of Kentucky




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