                                                  RENDERED: MARCH 17, 2016
                                                          TO BE PUBLISHED

              oi5uprrittr Crud of ciArttfuritv
                              2015-SC-000105-MR


STEPHEN BARTLEY                                                        APPELLANT


                  ON APPEAL FROM McLEAN CIRCUIT COURT
                    HONORABLE BRIAN WIGGINS, JUDGE
                             NO. 14-CR-000016


COMMONWEALTH OF KENTUCKY                                                APPELLEE



               OPINION OF THE COURT BY JUSTICE KELLER

                                   AFFIRMING

      A McLean County jury convicted Stephen Bartley of two counts of first-

degree sodomy and two counts of first-degree sexual abuse. Pursuant to a

post-verdict agreement between Bartley and the Commonwealth, the court

sentenced Bartley to 25 years' imprisonment. On appeal, Bartley argues that

the trial court erred when it: (1) denied his pre-trial motion to dismiss the

indictment; (2) granted the Commonwealth's intra-trial motion to amend the

indictment; (3) denied his motion for a mistrial; and (4) denied his motions for

a directed verdict. Bartley also argues that he was substantially prejudiced by

testimony about prior and uncharged bad acts and by testimony regarding the

victim's behavior while in foster care. For the following reasons, we affirm.
                                     I. BACKGROUND.

       Bartley and his first wife, Laura, had three children and what was

described as a tumultuous marriage. Laura left the marriage when their

children were younger than school age, and the couple engaged in a lengthy

and acrimonious custody battle. At some point after the dissolution of his

marriage to Laura, Bartley remarried. During the majority of the time period at

issue, Bartley lived with his three children, his second wife, and her two

children. 1

       Regina, 2 the Bartleys' middle child, alleged that Bartley began sexually

abusing her when she was three or four years old, and that the abuse

continued until she was nine or ten. At trial, Regina, who was then 14 years

old, testified about the following four specific incidents. When she was three

or four years old, Bartley came into her bedroom, woke her, and told her to go

into his bedroom. Bartley then removed Regina's panties and his shorts and

digitally and orally manipulated and penetrated her vagina. When she was five

or six years old, Regina accompanied Bartley to the garage where she

performed oral sex on him. Regina testified that, after he ejaculated, Bartley

gave her apple juice to rinse out her mouth. When Regina was eight, Bartley

came into her bedroom and rubbed her vagina with his hand. Finally, when

she was nine or ten, Bartley asked Regina to go into the home office, where


       I It is unclear from the record if one of the other two children was the biological
child of Bartley and his second wife. However, the nature of that relationship is
irrelevant to this appeal.
       2    Regina is a pseudonym employed in this opinion to protect the child's true
identity.

                                              2
they engaged in mutual masturbation. We note that Regina testified in some

detail about each of these incidents, describing the type of clothing each was

wearing during two of the incidents, whether it was night or day, and, in some

instances, the weather. However, Regina could not provide any specific dates.

      As a result of her parents' ongoing custody battle and accusations made

during that litigation (none of which involved sexual abuse), Regina had

frequent, if not continuous, contact with social workers and therapists from the

Department of Family and Juvenile Services. Despite these contacts, as well as

contact with teachers, school counselors, medical care providers, and family

members, Regina testified on direct examination that she did not report

Bartley's abuse to anyone in authority until March 2013. Regina explained

that she delayed making a report because she was afraid of Bartley and did not

want to bring attention to herself or suffer recrimination because she had not

stopped Bartley. On cross-examination, Regina testified that she had forgotten

that, sometime before March 2013, she had reported the abuse to her mother

while they were in the midst of an argument. However, according to Regina,

her mother did not believe any abuse had occurred.

      Bartley testified that he loved Regina and that he had not abused her.

He could not explain why Regina was making false accusations and questioned

her credibility because of her failure to report the abuse despite frequent

opportunities to do so. He also noted that Regina did not make her

accusations until after she had been charged with criminally assaulting her




                                         3
mother. Bartley also testified that, because of the ongoing custody battle with

his ex-wife, he tried not to be alone with any of his children.

         Based on the preceding, and additional testimony that we set forth

below, the jury convicted Bartley of all charges.

                            II. STANDARD OF REVIEW.

         The issues raised by Bartley have different standards of review.

Therefore, we set forth the appropriate standard of review as we address each

issue.

                                   III. ANALYSIS.

A.       The Trial Court Did Not Err When It Denied Bartley's Motion to
         Dismiss the Indictment.

         On January 13, 2014, the grand jury returned an indictment charging,

in pertinent part, 3 that Bartley committed two counts of "sodomy in the first-

degree when he engaged in deviate sexual intercourse with [Regina], a female

less than twelve (12) years of age" and two counts of "sex abuse in the first-

degree when he subjected a female child, [Regina], to sexual contact who was

less than twelve (12) years of age" between "2004 and March, 2012, in McLean

County, Kentucky." On March 24, 2014, Bartley's counsel filed a motion for a

bill of particulars seeking additional information. At the hearing on that

motion the Commonwealth indicated that it had provided a copy of a recorded

interview of Regina to Bartley's counsel and that additional details were



       3 The indictment also charged Bartley with two counts of first-degree rape.
However, the Commonwealth dismissed those counts because the alleged offenses
occurred outside of McLean County.

                                           4
contained in that interview. When Bartley's counsel indicated he was having

difficulty hearing the copy of the tape that he had, the Commonwealth agreed

to provide him with another copy. Bartley's counsel then stated that if he

needed any additional information after listening to the tape, he would advise

the court and the Commonwealth accordingly.

      On August 11, 2014, Bartley notified the court that he had retained new

counsel. On October 31, 2014, the Commonwealth sent correspondence to

Bartley's new counsel advising him of additional facts regarding each of the

counts in the indictment. The additional facts were consistent with Regina's

ultimate testimony, except for the age range when the incident in the garage

occurred.

      On the morning of trial, Bartley moved to dismiss all of the counts of the

indictment due to lack of specificity. In particular, he noted that the offenses

occurred within a range of seven years and, without more specific dates, he

could not mount an adequate defense. The Commonwealth admitted that it

was difficult to get specific dates, noting that Regina was between three or four

and ten or eleven years old when the events took place. However, the

Commonwealth advised the court that it had tried to be as specific as possible

in its October 31, 2014 disclosure letter to Bartley. The Commonwealth also

noted that it had provided an audio tape to Bartley several months earlier.

Bartley again complained that he was unable to hear what Regina said on the

tape; however, it does not appear that he had mentioned this to either the

court or the Commonwealth in the months after he received the second copy of
the tape. The court noted that Bartley had a second copy of the tape for some

time and had not complained about that tape earlier. Therefore, the court held

that the tape was not an issue. The court then agreed with Bartley that the

indictment was not specific and asked the Commonwealth if it wanted to move

to amend it to conform with the anticipated testimony. The Commonwealth

stated that it would wait to see what transpired at trial. The court then noted

that the last count was the least specific and could be a problem; however, it

denied Bartley's motion.

      During trial Bartley again moved to dismiss the indictment and he

sought a new trial based, in part, on the alleged defects in the indictment. The

court overruled those motions.

      Bartley continues to argue on appeal that the indictment was inadequate

because it gave him "no notice whatsoever of the dates he was alleged to have

committed the offenses." The Commonwealth argues that the indictment, as

supplemented by the Commonwealth's provision of the audio tape and the

October 31, 2014 letter, was sufficient.

      [An] indictment or information shall contain, and shall be
      sufficient if it contains, a plain, concise and definite statement of
      the essential facts constituting the specific offense with which the
      defendant is charged. It need not contain any other matter not
      necessary to such statement, nor need it negative any exception,
      excuse or proviso contained in any statute creating or defining the
      offense charged.

Kentucky Rule of Criminal Procedure (RCr) 6.10(2).

      The sufficiency of an indictment is measured by two criteria under
      the Due Process Clause: first, it must "sufficiently apprise a
      defendant of the criminal conduct for which he is called to
      answer;" second, the indictment and instructions together must
                                           6
      provide adequate specificity so as to allow the defendant to "plead
      acquittal or conviction as a defense" against future indictment and
      punishment for the same offense.

Alford v. Commonwealth, 338 S.W.3d 240, 248 (Ky. 2011) (citations omitted).

      The indictment herein was bare bones, containing only the specific

crimes charged and the range of dates within which the offenses occurred.

However, the Commonwealth supplemented the indictment with the recording

of Regina's statement and the October 31, 2014 letter to Bartley's counsel. For

counts one, two, and three the October 31, 2014 letter provided details

regarding the locations where each offense occurred, a narrower time-frame for

when each offense occurred, and what specific activities took place.

Furthermore, for counts one and two the Commonwealth provided information

regarding what clothes Regina and Bartley were wearing. For count four, the

correspondence provided details regarding where the offense occurred and

what activities took place; however, the Commonwealth did not provide a more

specific time frame. These details were sufficient to apprise Bartley of the

offenses with which he was charged and to permit him to plead prior conviction

should he be charged with the same offense in the future. Therefore, the trial

court did not err when it refused to dismiss the indictment.

B. The Trial Court Did Not Err When It Granted the Commonwealth's
     Motion to Amend the Indictment.

      The court may permit an indictment, information, complaint or
      citation 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.


                                         7
RCr 6.16. Because RCr 6.16 is permissive, we review a trial court's order

permitting the Commonwealth to amend the indictment for abuse of discretion.

See Riley v. Commonwealth,    120 S.W.3d 622, 631-32 (Ky. 2003).

      As noted above, the parties recognized before trial that the indictment

lacked specificity. In order to address this deficiency in the indictment, the

Commonwealth provided Bartley with two copies of Regina's taped statement

and correspondence setting forth details regarding each of the charges. When

asked by the court the morning of trial if it wanted to amend the indictment to

conform with that correspondence, the Commonwealth stated that it would

wait until testimony had been presented. It appears that the Commonwealth

believed that the testimony might differ somewhat from what was in the

correspondence, a belief that proved to be true with regard to how old Regina

was when one of the charged acts occurred. Therefore, the Commonwealth did

not move to amend the indictment until after the close of all evidence, when it

submitted draft jury instructions. 4

      Initially, we note that Bartley does not argue that the amendment

resulted in different or additional charges being levied. Therefore, we do not

address that part of RCr 6.16.

      Bartley does argue that the amendment prejudiced his "right[s] to

present a defense and . . . to confront the witnesses against him through



       4 We note that the instructions submitted by the Commonwealth were

consistent with Regina's testimony and the amended indictment. Although unanimity
was not raised as an issue, the instructions in this case exemplify how to word
instructions to avoid unanimity issues.

                                        8
effective cross examination." In support of this argument, Bartley states that

the amendment made it impossible to develop an alibi defense. However,

Bartley was aware of the charges against him and the general time frame when

the charged incidents occurred, and the Commonwealth took steps to advise

him more specifically what the charges entailed. Therefore, we discern no

prejudice to any of Bartley's substantial rights by amendment of the indictment

to conform with the evidence.

C.     The Trial Court Did Not Err When It Denied Bartley's Motion for a
       Mistrial and Evidence of Uncharged Crimes and Other Bad Acts Does
       Not Warrant Reversal.

       Bartley complains that Regina's testimony about uncharged sexual acts,

other acts of physical abuse, and possible illegal drug use impermissibly

prejudiced him. He admits that he did not properly preserve the majority of

these alleged errors, which we address separately below.

     1. Uncharged Sexual Acts Testimony on Direct Examination.

       During direct examination, the Commonwealth asked Regina if anything

had ever happened between her and Bartley in her bedroom. She said that it

had and, when the Commonwealth asked her to describe what happened in

detail, she said that Bartley lay in bed with her, put his hand down her

panties, and rubbed her vagina. Regina stated that she was not sure how old

she was when this happened, but she believed she may have been eight.

During this portion of her testimony, Regina stated twice that Bartley did this

more than once, and Bartley did not object. Thus, Bartley did not properly

preserve any issues with regard to this testimony, and we examine its


                                        9
admission for palpable error. RCr 10.26. To be palpable, an error must be "so

manifest, fundamental and unambiguous that it threatens the integrity of the

judicial process." Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013).

      Regina's "testimony falls within the exceptions for evidence offered to

prove intent, plan, or absence of mistake or accident . . . . [and] evidence of

similar acts perpetrated against the same victim are almost always admissible

for those reasons." Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002);

Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008). Thus, Regina's short

statements about uncharged sexual acts, made essentially in passing during

her testimony on direct examination, did not rise to the level of palpable error.

   2. Uncharged Sexual Acts Testimony on Cross          Examination.
                                                        -




      On cross-examination, Bartley questioned Regina about the preceding

incident and Regina stated that she was seven or eight years old but that it

happened all the time. At that point Bartley's counsel asked to approach the

bench, objected, and made a motion for a mistrial arguing that Regina had

testified several times about uncharged acts. Thus, Bartley properly preserved

issues with regard to Regina's third statement about uncharged sexual acts.

      In response to Bartley's objection and motion, the Commonwealth noted

it had not solicited Regina's first two statements about uncharged sexual acts

and that Bartley had not objected. The court noted that Regina's testimony

about uncharged sexual acts was not proper; however, it also noted that

Bartley's objection was not timely and that Regina's testimony was not grounds




                                         10
for a mistrial. The court then admonished the Commonwealth to tell Regina to

refrain from making any similar statements, which Regina did.

      The extraordinary relief of a mistrial will not be granted absent "a

manifest necessity." Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky. 2002).

A party claiming that the trial court erroneously denied a motion for a mistrial

must show that any "prejudicial effect could be removed in no other way."       Id.

We review a trial court's decision to declare or deny a mistrial for abuse of

discretion.   Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). We

discern no abuse of discretion here.

      Regina's testimony on cross-examination about uncharged sexual acts

was, like her testimony on direct, spontaneous and not in direct response to

questioning. Bartley did timely object to this testimony; however, by the time

he did so, the jury had already heard the complained of testimony twice, and

Bartley had already suffered any prejudice he was going to suffer. Therefore,

Regina's testimony during cross-examination was harmless error.

Furthermore, Bartley, who did not ask the court to admonish the jury, has not

shown how an admonition would not have removed any prejudicial effect from

Regina's cross-examination testimony. Therefore, the trial court did not abuse

its discretion when it denied Bartley's motion for a mistrial.

   3. Physical Abuse.

      Bartley's defense was that Regina was fabricating her allegations of

abuse. In support of that defense, Bartley noted during his opening statement

that, despite being involved with social workers, teachers, and counselors for


                                         11
years, Regina did not disclose the abuse until she was facing criminal charges. 5

                                                                                       TorefuthapinBley'sdf,thComnwealskdRgif

Bartley had ever told her not to tell anyone about the sexual abuse. Regina

said, "Once I knew, like he said that if I did tell somebody, I probably wouldn't

be here." She also stated that she had not told anyone because Bartley had hit

her, her siblings and step siblings; that he scared her and the other children;

and that he had nearly beaten her brother to death.

       On cross-examination, Bartley asked Regina about what she had told her

teachers. She testified that she had not told them about any sexual abuse but

that she had told them Bartley had hit her because she had "bruises and

marks." Bartley did not object to any of Regina's testimony about physical

abuse. Because Bartley did not object, we review the admission of this

evidence for palpable error. RCr 10.26.

       Bartley argues that evidence of his physical abuse was not admissible

because it was not probative of whether the sexual abuse and sodomy

occurred. According to Bartley, the Commonwealth only introduced this

evidence to "tip the scales in [Regina's] favor." Setting aside the fact that nearly

all evidence is introduced in order to tip the scales in favor of the party offering

it, we discern no error, let alone palpable error.

       Bartley is correct that evidence of his physical abuse of Regina and other

members of his family would generally be inadmissible if offered only to prove



       5 It appears from the record that the criminal charges related to a physical
altercation between Regina and her mother.

                                           12
his bad character or criminal predisposition.   See Alford v. Commonwealth, 338

S.W.3d 240, 250 (Ky. 2011). Such evidence "is admissible only if probative of

an issue independent of character or criminal predisposition, and only if its

probative value on that issue outweighs the unfair prejudice with respect to

character." Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992).

      Bartley specifically raised as an issue Regina's failure to tell anyone

about the sexual abuse and sodomy. Evidence of his physical abuse was

relevant and admissible to explain why Regina waited several years to tell

anyone, an issue independent of character and criminal predisposition.

Therefore, we discern no error in the admission of evidence of Bartley's physical.

abuse.

   4. Drug Use.
      When the Commonwealth questioned Regina about the incident in the

office, she testified that Bartley called her into the house and asked her to get

something from the office. She could not remember what Bartley wanted her to

get but thought it might have been "pain pills." Bartley did not object. He now

argues that this testimony was impermissible evidence of bad acts, presumably

because the testimony implied that the "pain pills" were illegal. We disagree.

      Because Bartley did not object, we must determine whether the

admission of this evidence, if error, rose to the level of palpable error. RCr

10.26. Regina did not characterize the pills Bartley wanted her to get as being

illegal substances. She merely stated that he wanted her to get pain pills,

which could include both legally and illegally obtained substances. Thus, even


                                         13
if this testimony was erroneously admitted, its admission did not threaten "the

integrity of the judicial process," Baumia, 402 S.W.3d at 542, and was not

palpable error.

D. The Court Did Not Err When It Permitted Habit Testimony.

      During its case in chief, the Commonwealth called Keith Stratton,

Regina's foster father. Stratton testified that Regina was apprehensive when

she first came to live with his family, fearing that someone might try to get her.

When the Commonwealth asked Stratton if he knew who Regina feared, he

stated that Regina never told him but that she had discussed it with his wife.

Bartley, without explanation, objected and the Commonwealth abandoned this

line of questioning. The Commonwealth then asked Stratton whether,

"[c]omparing [Regina] to all the other children that you've had placed in your

home, how would you, with her apprehension, to use your word, how would

you describe [Regina], compare her?" Stratton responded that most foster

children are apprehensive but that Regina "was the most apprehensive child

that I've had to this point."

      Bartley argues that this testimony was impermissible "flip habit

evidence" that Regina acted differently from other foster children because she

had been sexually abused by Bartley. According to Bartley, permitting such

testimony, "remove[ed] the jury from its historic function of assessing

credibility." Newkirk v. Commonwealth, 937 S.W.2d 690, 696 (Ky. 1996).

Because Bartley did not raise this issue before the trial court, it is unpreserved,

and we review it for palpable error. RCr 10.26.


                                         14
      In support of his argument, Bartley cites Sanderson v. Commonwealth,

291 S.W.3d 610 (Ky. 2005) which sets forth the general rule against Child

Sexual Abuse Accommodation Syndrome (CSAAS) testimony:

      [A] party cannot introduce evidence of the habit of a class of
      individuals either to prove that another member of the class acted
      the same way under similar circumstances or to prove that the
      person was a member of that class because he/she acted the same
      way under similar circumstances.

Id. at 613 (emphasis in original) (citing Kurtz v. Commonwealth, 172 S.W.3d

409, 414 (Ky. 2005)).

      We are not convinced that Stratton's testimony reached the level of

CSAAS testimony, nor are we convinced that its admission constituted

manifest injustice. This Court found reversible error in Sanderson where a

clinical psychologist testified that a child's addition of new allegations of sexual

abuse was normal and in Newkirk where a psychiatrist testified that

recantation was a common occurrence among sexually abused children. Both

cases involved testimony by medical professionals offered to prove sexual abuse

had occurred because the children acted like other sexually abused children.

As the Court noted in Newkirk, such testimony does not account for the

possibility that "other children who had not been similarly abused might also

develop the same symptoms or traits."     Id. at 690-91 (citing Lantrip v.

Commonwealth, 713 S.W.2d 816, 817 (Ky. 1986)).

      Stratton's testimony poses no such problem for seven reasons. First,

Stratton was not a medical professional, and his testimony did not carry the

weight assigned to such professionals. Second, Stratton was not comparing


                                         15
Regina to other sexually abused children; he was comparing her to other foster

children. Third, Stratton did not state that Regina was apprehensive because

she had been sexually abused or even state that sexually abused children act

apprehensively. Fourth, the jury had heard testimony that Bartley and

Regina's mother had been engaged in a lengthy and acrimonious divorce and

custody battle. Fifth, Regina had been treated medically and psychologically

on an ongoing basis for issues related to that custody battle. Sixth, Regina had

been arrested and charged with assaulting her mother. Seventh, Regina, who

had been released from juvenile detention before being placed with the

Strattons, stated that facility was "the worst place ever, except for having to

live" with her mother.

         Certainly, the jury could have inferred that Regina's apprehension was

the result of Bartley's sexual abuse; however, it could have as easily inferred

that her apprehension was the result of her parents' ongoing legal battle, her

own psychological and legal difficulties, and her fear of being returned to her

mother's care or to juvenile detention. Therefore, we cannot say that Stratton's

testimony resulted in manifest injustice or that it rose to the level of palpable

error.

E.       Bartley Was Not Entitled to a Directed Verdict.

         On a motion for directed verdict, the trial court must draw all fair
         and reasonable inferences from the evidence in favor of the
         Commonwealth. If the evidence is sufficient to induce a reasonable
         juror to believe beyond a reasonable doubt that the defendant is
         guilty, a directed verdict should not be given. For the purposes of
         ruling on the motion, the trial court must assume that the
         evidence for the Commonwealth is true, but reserving to the jury
         questions as to the credibility and weight to be given to such
                                          16
      testimony. On appellate review, the test of a directed verdict is, if
      under the evidence as a whole, it would be clearly unreasonable for
      a jury to find guilt, only then the defendant is entitled to a directed
      verdict of acquittal.

Commonwealth v. Benham, 816 S.W.2d 186 at 187 (Ky. 1991).

      Bartley argues that the trial court should have granted his motions for

directed verdict because Regina's testimony was "uncorroborated and

inherently improbable." In support of his argument, Bartley cites Garrett v.

Commonwealth, 48 S.W.3d 6, 10 (Ky. 2001). In Garrett, the victim testified that

her father began sexually abusing her at the age of six and continued abusing

her for six years. Id. at 8. The victim's testimony was partially corroborated by

her mother, a friend, and a neighbor who observed Garrett acting in a

compromising way toward the victim. Id. at 8-9. This Court noted that the

victim's testimony "occasionally contradicted her previous statements to the

police" and that the trial court, based on those contradictions, granted

Garrett's motion for directed verdict as to several of the charges.   Id. at 10.

However, the trial court did not direct a verdict on all of the charges, and this

Court affirmed the trial court's determinations.   Id. In doing so, this Court

stated that "[c]orroboration in a child sexual abuse case is required only if the

unsupported testimony of the victim is '. . . contradictory, incredible or

inherently improbable." Id. (Citations omitted.)




                                         17
      Bartley argues that this was a classic case of "he said/ she said," with

Regina testifying that Bartley abused her, with no corroborating evidence, 6

                                                                               andBrtleysifghnoabuecrd.BtlynoshaRegi

testified on direct examination that she had not told anyone of the ongoing

abuse, but testified on cross-examination that she had told her mother about

the abuse during the course of an argument. Bartley argues that this

inconsistent testimony, coupled with the fact that no one witnessed any sexual

abuse during a time when Regina and the family were "under a microscope due

to the divorce and custody battle" rendered her testimony incredible and

inherently improbable. We disagree.

      It is fair to characterize Regina's testimony about when she disclosed the

abuse as inconsistent, and Bartley was free to attack her credibility based on

that testimony. However, Regina's testimony about the specific acts of abuse

was not inconsistent. It contained detailed descriptions of what occurred,

where each incident occurred, and, for two of the incidents, what she and

Bartley were wearing. This evidence was as specific as, if not more specific

than, evidence in other similar cases, and any inconsistency about when

Regina disclosed the abuse was not so severe as to render the remainder of her

testimony inherently improbable.

      Furthermore, even with this partial inconsistency, the evidence, taken in

the light most favorable to the Commonwealth, was more than sufficient to


      6 We note but will not further comment on the inconsistency of Bartley's
arguments that Stratton's testimony impermissibly bolstered Regina's testimony while
simultaneously arguing that there was no corroborating evidence.

                                         18
support the trial court's finding that a reasonable jury could reasonably

conclude that Bartley committed the charged offenses. Therefore, we discern

no error in the trial court's denial of Bartley's motions for directed verdict.

                                 IV. CONCLUSION.

      For the foregoing reasons, we affirm.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Emily Holt Rhorer
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Julie Scott Jernigan
Assistant Attorney General




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