RENDERED: DECEMBER 1, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1376-MR

COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM OLDHAM CIRCUIT COURT

v. HONORABLE CHARLES R. HICKMAN, SPECIAL JUDGE

ACTION NO. 15-CR-00098

PERRY JACK PROBUS, JR. APPELLEE

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: EASTON, ECKERLE, AND JONES, JUDGES.

ECKERLE, JUDGE: The Commonwealth of Kentucky appeals an order vacating 

Perry Jack Probus, Jr.’s 45-year imprisonment sentence after the Circuit Court 

concluded that Probus’s trial counsel’s assistance was ineffective. Though Probus 

raised multiple allegations in his Kentucky Rules of Criminal Procedure (“RCr”)

11.42 motion, the Trial Court reserved ruling on most of Probus’s post-conviction 
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claims after finding ineffective assistance on one claim. Following our de novo

review of the legal conclusions, we respectfully disagree that ineffective assistance 

of counsel occurred on that single claim, and, thus, we reverse and remand for 

further proceedings on the outstanding claims. 

BACKGROUND

Probus was an accomplice to a home invasion and robbery. He was 

ultimately convicted of complicity to commit first-degree robbery, complicity to 

commit first-degree burglary, two counts of complicity to commit first-degree 

wanton endangerment, and of being a persistent felony offender in the first degree. 

Probus’s prior convictions include being a convicted felon in possession of a 

firearm, burglary in the third degree, theft by unlawful taking under $500, 

possession of burglary tools, receiving stolen property under $500, facilitation to 

manufacturing methamphetamine with a firearm, receiving stolen property over 

$500, and illegal possession of a controlled substance. The facts underlying 

Probus’s conviction were thoroughly detailed by the Kentucky Supreme Court’s 

published opinion on direct appeal affirming his 45-year sentence:

Tammy Robinson was working as a nanny when at 

mid-morning she answered a knock at the door. There 

stood a man later identified as Solomon Slinker. He was 

dressed as a deliveryman and claimed he had a package 

for the homeowner, “Billy.” Slinker asked Robinson for 

a signature, so Robinson went to find a pen.
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As Robinson returned to the door, she found 

Slinker inside the house pointing a gun at her. After a 

brief struggle, Slinker subdued Robinson. Robinson told 

Slinker to take whatever he wanted but not to harm 

Billy’s two children, who were also in the house at the 

time. Slinker tied Robinson’s hands together with zipties, but she broke free when one of the children ran to 

her. Slinker then pushed Robinson and the child into the 

bathroom and followed them inside the bathroom. While 

inside the bathroom, Robinson heard drilling and banging 

coming from inside the house, prompting her to conclude 

that another person had entered the house and was 

making those noises.

Eventually, Slinker left the bathroom, and 

Robinson retrieved her cell phone and called for help. 

Robinson did not encounter any other intruder after 

Slinker left the bathroom. Sergeant Ray Whitehill 

arrived, and his investigation revealed, among other 

things of interest, a blue U-Haul blanket covering a safe 

in the garage. Sergeant Whitehill later found out that the 

safe had been moved to the garage from the master 

bedroom. Sergeant Whitehill then spoke with Robinson, 

Billy, and some neighbors. Of note, one of the neighbors 

recalled seeing a white Ford F-150 in Billy’s driveway. 

After speaking with these individuals, Sergeant Whitehill 

received a call from Kathy Hatcher.

Hatcher asked if there had been a home invasion 

“the other night” in the neighborhood. Hatcher stated 

that her son, Slinker, may have been involved. Hatcher 

told Sergeant Whitehill that her husband overheard 

Slinker’s phone conversation in which Slinker stated that 

he and “P.J.” had “made the news” but were unable to get 

the safe. Hatcher’s husband identified “P.J.” as the 

defendant in this case, Perry Jack Probus.

Sergeant Whitehill arrested Slinker on an 

outstanding warrant for an unrelated crime. Sergeant 

Whitehill took that opportunity to interview Slinker about 
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the home invasion, and Slinker admitted to the crime and 

implicated Probus. Slinker gave an account of the events 

surrounding the home invasion.

Slinker and Probus had become housemates earlier 

in the month. Slinker learned of a failed invasion of 

Billy’s home that Probus and an individual named Steven 

Vaughan had attempted. Slinker offered to help Probus 

make another attempt at the home invasion.

Probus showed Slinker Robinson’s Facebook 

picture and told Slinker that Robinson would be the one 

answering the front door of Billy’s residence. Probus 

apparently told Slinker that Billy would pay them $3500 

to take a safe from the house or $1000 to retrieve 

paperwork out of the safe if they could not take the safe. 

The evening before the home invasion, Probus sent 

Slinker a text telling him to be ready the following 

morning. Later, on the morning of the invasion, Probus 

texted Slinker, telling him to get ready. Slinker dressed 

as a UPS deliveryman. Probus brought the white F-150 

truck to be used in the home invasion, while Slinker 

brought zip-ties, a cellphone jammer, walkie-talkies, a 

clipboard, and a box. At the suggestion of Probus, 

Slinker also brought a BB gun with the orange tip 

removed.

Probus and Slinker arrived at Billy’s residence and 

the events with Robinson transpired as described above. 

As Slinker guarded Robinson and the child inside the 

bathroom, Probus signaled for Slinker to exit the house 

and return to the truck. Slinker saw that Probus had not 

retrieved the safe and asked Probus about it. Probus 

responded that the safe was too heavy but both would 

still be paid.

Upon arriving at Probus’s house, Probus told 

Slinker to leave and lay low for a while. When Slinker 

asked Probus about the money, Probus told Slinker that 
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he had retrieved some laptops and purses that they could 

sell and split the proceeds.

Because of Slinker’s confession, Sergeant 

Whitehill obtained a search warrant for Probus’s 

residence where he collected several Coach purses, 

(identified as belonging to Billy’s girlfriend who resided 

at Billy’s home), walkie-talkies, a cell phone jammer, 

two U-Haul blankets, and other various items of interest.

Probus was indicted. After two mistrials, at 

Probus’s third trial, the jury convicted Probus of 

complicity to first-degree robbery, complicity to firstdegree burglary, two counts of complicity to first-degree

wanton endangerment, and of being a persistent felony 

offender, recommending a total sentence of 45 years’ 

imprisonment, which the trial court imposed.

Probus v. Commonwealth, 578 S.W.3d 339, 342-44 (Ky. 2019) (footnote omitted).

The first mistrial occurred because the Commonwealth made an 

erroneous statement during opening statements. The second mistrial was due to a 

witness for the Commonwealth stating that Probus was on parole, and thus 

indicating that Probus was a convicted felon. Neither of these errors occurred 

during the third trial, which resulted in the convictions listed above.

Following his direct appeal, Probus filed an RCr 11.42 motion raising 

numerous post-conviction claims. One of those claims involved whether Probus’s 

trial counsel1 was ineffective in her investigation and presentation of evidence

regarding the weapon used during the robbery and burglary. Notably, the weapon 

1 Hereinafter referred to as “Defense counsel.”
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used was never recovered, and testimony at trial identified the weapon variously as 

a BB gun, a fake gun, a toy gun, and an Airsoft gun. Specifically, Probus alleged

in his post-conviction motion that Defense counsel should have conducted a more 

thorough investigation into evidence that Airsoft guns do not meet the statutory 

definition of dangerous instrument or deadly weapon, and that she should have 

presented that additional evidence at trial. The Trial Court held an evidentiary 

hearing on the post-conviction motion. Defense counsel testified regarding her 

investigation and trial strategy. 

Defense counsel is an experienced criminal defense attorney who has

worked for both the Louisville Metro Public Defender’s Office and the Department 

of Public Advocacy. During her career, Defense counsel participated in 

approximately 20 trials. Utilizing her experience, Defense counsel conducted

extensive investigation and spent lengthy amounts of time preparing for Probus’s 

three trials. Defense counsel formulated and employed three methods of defense

for Probus, ultimately seeking an acquittal on all charges.

First, Defense counsel attempted to get the Trial Court to conform the 

charges against Probus to charges that conformed to Slinker’s plea-bargain

charges. Regarding the principal perpetrator, Defense counsel was aware that 

Slinker had pled guilty to second-degree robbery and other lesser charges in 

exchange for a reduced sentence. Prior to trial, Defense counsel attempted to get 
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Probus’s charges amended to conform with Slinker’s plea, arguing the 

amendments were due to the weapon not being a dangerous instrument or a deadly 

weapon. The Trial Court rejected that argument, finding the nature of the weapon 

was a factual issue for the jury. The Kentucky Supreme Court on direct appeal 

likewise rejected that this claim violated Probus’s rights to due process when the 

Commonwealth chose to prosecute Slinker on a different theory than Probus. 

Probus, 578 S.W.3d at 345-46. 

Second, Defense counsel then attempted to undercut the reliability of 

the Commonwealth’s evidence by showing the jury that the Commonwealth’s view 

of the type of weapon used was inconsistent and changing:

So basically, what it was, was, we wanted the jury to see 

that when it inured to his benefit, it was this kind of 

weapon, and when it was against Mr. Probus, it was now, 

all of a sudden, a bb gun, capable of firing metal pellets. 

And he (Slinker) indicated, in his testimony, that they 

fired metal pellets. 

Video Record (“VR”) 2/25/22, 9:47:26. On direct appeal, the Kentucky Supreme 

Court rejected Probus’s argument that “the Commonwealth offered insufficient 

evidence that the gun with which Slinker threatened Robinson constituted a 

‘deadly weapon’ or ‘dangerous instrument[.]’” Probus, 578 S.W.3d at 344-45.

Third, Defense counsel employed an alibi defense. Defense counsel 

proffered evidence to the jury that Probus was at his own home during the crime. 

Defense counsel presented the testimony of another person who lived at Probus’s 
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residence to testify that he had video cameras around the compound and daily 

would review the cameras to see if anything had occurred. The witness testified 

that he had reviewed the security cameras for the morning and afternoon of the 

commission of the crime and had not seen Probus leave.

Concerning her investigation, Defense counsel testified that her work 

product was extensive, producing some 20 banker’s boxes of files. Defense

counsel’s investigation included listening to Slinker’s plea colloquy and having

others listen to it. No one could determine whether Slinker said what type of 

projectiles were fired or could be fired from the weapon he used to commit the 

crime. Defense counsel also utilized an intern to research Airsoft guns, 

discovering that there are some Airsoft guns that fire metal pellets that can meet

the statutory definition of dangerous instrument or deadly weapon. Defense 

counsel reviewed the law and believed that whether the weapon was capable of 

being a deadly weapon would ultimately be a fact question for the jury. 

Furthermore, Defense counsel strategically exploited a patent error in 

the indictment without bringing it to the Commonwealth’s attention until later in 

the trial. The Commonwealth had not indicted on all sustainable theories of the 

burglary and robbery crimes, including a theory that the victim suffered physical 

injury. For example, the robbery statute allows for a conviction under multiple 

theories, including if physical force is used that causes physical injury to a non-
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participant in the crime.

2

 Defense counsel noted, “As you are perfectly well aware, 

there was a huge fight between the victim and Mr. Slinker, for purposes of a 

robbery conviction.” VR 2/25/22, 9:49:30. Indeed, the photographs introduced 

showed extensive bruising to one of the victims. Defense counsel’s strategy was to 

utilize her above theories to cast doubt that the weapon was not a deadly weapon or 

dangerous instrument, all the while preparing a legal defense against the possible 

attempt by the Commonwealth to amend the indictment to include the physical 

injury theory. 

Defense counsel’s strategy on the amendment was successful. The 

Commonwealth was not permitted to amend the indictment after the presentation 

of evidence, and Defense counsel pigeonholed the Commonwealth to proving that 

a deadly weapon or dangerous instrument was used.

2 Kentucky Revised Statutes (“KRS”) 515.020, as it read when the underlying actions occurred,

provided that a person commits robbery in the first degree:

. . . when, in the course of committing theft, he uses or threatens 

the immediate use of physical force upon another person with 

intent to accomplish the theft and when he: (a) Causes physical 

injury to any person who is not a participant in the crime; or (b) Is 

armed with a deadly weapon; or (c) Uses or threatens the 

immediate use of a dangerous instrument upon any person who is 

not a participant in the crime.

KRS 515.020(1)(a)-(c). In contrast, a person commits second-degree robbery when the

perpetrator of the theft uses or threatens the immediate use of physical force with the intent to 

accomplish the theft. KRS 515.030. 
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“The case law wasn’t on my side. I have to be honest with you, I was 

surprised when the judge did not allow the amendment prior to the submission to 

the jury, um, because the notice requirement was, it was all over the discovery –

the physical force and the fight and the allegations – and, you know, we did what 

we could, which was focus on one area where we believed that we had the wiggle 

room to make the argument and say, judge, this is, this is not, and we were 

fortunate, and [the judge] agreed.” VR 2/25/22, 9:50:36. “It (the physical force 

theory) was not in the indictment. They literally, you know, usually in an

indictment they do both theories, but in this specific indictment they specifically 

left out that portion of the statute.” VR 2/25/22, 9:51:38.

In addition to keeping the indictment narrow, Defense counsel’s 

strategy was to attack Slinker’s testimony regarding the weapon used. To combat 

the statutory definition of dangerous instrument, Defense counsel’s research

showed that the main difference between an injurious Airsoft gun and a noninjurious Airsoft gun was on the type of pellet used, “and that’s why we focused on 

that.” VR 2/25/22, 9:53:02. Defense counsel summarized her strategy in the 

following exchange:

Def. Counsel: At that point in time, I’ll be honest with 

you, I just didn’t know, and our position was there’s no 

proof that there were metal pellets. You know, that it 

was not in Solomon’s plea colloquy. They didn’t ask 

about it. Um, and we knew from the research that there 

were Airsoft pellet guns that fired metal pellets, including 
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the one that he had, but we didn’t know that there were 

metal pellets.

P.C.[3] Counsel: There was never an Airsoft gun 

recovered, was there?

Def. Counsel: No.

P.C. Counsel: And so . . . 

Def. Counsel: It was based upon what Mr. Slinker said.

P.C. Counsel: Ok, and what Mr. Slinker did, was, 

consistent with his statement that he broke the orange 

tip?

Def. Counsel: Yes.

P.C. Counsel: Off of it?

Def. Counsel: Yes.

P.C. Counsel: To make it look more like a gun, or a real 

gun?

Def. Counsel: Yes.

VR 2/25/22, 10:34:23.

Defense counsel admitted she was not a firearms “person” and did not 

think of hiring an expert. She was aware that there is a distinction between an 

“actual” firearm and an Airsoft gun, though. 

3

In video recordings of the proceedings below, we refer to Probus’s post-conviction counsel as 

“P.C. Counsel” and his Defense counsel as “Def. Counsel.” 
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Charles Stephenson, a ballistics trial consultant, also testified at the 

evidentiary hearing. Stephenson is a military veteran with extensive experience in 

firearms. Stephenson received and tested an Airsoft pistol from Probus’s postconviction counsel. Stephenson explained that Airsoft weapons shoot projectiles 

through one of two means: some are mechanically powered, using levers and 

springs; and some use compressed air supplied by carbon-dioxide-cartridges. The 

one he tested was a mechanically-powered weapon, with a stated terminal velocity 

of 100-110 feet per second. 

Stephenson was asked to make an overall evaluation about the effects 

of this particular Airsoft weapon that post-conviction counsel provided. He 

determined it was a “toy replica” gun with a mechanical mechanism, safe enough 

to conduct testing in his office. He set up ballistics gelatin and test fired plastic 

Airsoft projectiles at the gelatin at various distances from point-blank to three feet. 

None of the plastic projectiles penetrated the ballistics gel. 

Stephenson concluded that the weapon provided him by postconviction counsel was a toy, not a firearm, because it used a non-explosive 

mechanism for firing the projectile, and the plastic projectile was not designed to 

penetrate skin. 

Stephenson stated that because a metal BB is a smaller diameter than 

the Airsoft chamber, the Airsoft gun should not be able to shoot the metal BB. 
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When asked if some Airsoft weapons do shoot metal projectiles, Stephenson

responded that he had researched and found that Airsoft competitions are highly 

regulated and do not permit the use of metal projectiles. He also noted that

comparatively a metallic BB gun would have a higher risk of injury than an Airsoft 

gun. 

Stephenson created a report detailing the results of his experiments. 

The report was admitted, with the Trial Court noting that the gun tested was not the 

weapon actually used in the commission of the crimes. 

On cross-examination, the Commonwealth questioned whether 

Stephenson was aware that some Airsoft weapons have terminal velocities of 750 

feet per second, and Stephenson admitted that some Airsoft weapons can have 

terminal velocities that are higher than the weapon he tested, noting that the 

velocities can be “considerable.” Those with higher velocities would shoot 

projectiles with more force. He did not believe a plastic Airsoft projectile would 

hurt more at a higher velocity, though, because it was designed to break apart upon 

impact.

When asked about whether an Airsoft gun could cause serious eye 

injuries, Stephenson responded that he was not an ophthalmologist, and that his

preliminary research was “inconclusive.” Stephenson did have his shatter-proof 
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glasses on while conducting his experiments, and he ultimately admitted that an 

Airsoft gun could cause an eye injury. 

Probus also testified at the hearing. His testimony was limited to 

establishing that he had two or three Airsoft guns in his garage when Slinker 

purportedly went to the garage to retrieve a weapon to use in the crime. Probus 

said that one of his guns in the garage was “similar” to the Airsoft weapon tested 

by Stephenson.

TRIAL COURT’S RULING

The Trial Court entered an order granting the RCr 11.42 motion in 

part, vacating the judgment, and remanding for a new trial, finding in relevant part:

The key issue centers around [Defense] counsel’s alleged 

failure to reasonably investigate the law as it relates to 

the definitions of a “deadly weapon” and “dangerous

instrument,” the failure to investigate the nature of an 

airsoft gun that was allegedly used by Slinker in this 

case, and the failure to present expert testimony and 

evidence related to airsoft guns to the jury. [Defense 

counsel] testified at the evidentiary hearing that she did 

pursue the issue of the airsoft gun being used in the 

offenses for which Probus was indicted. [Defense 

counsel] stated that during Slinker’s prosecution, that the 

Commonwealth during the colloquy preceding the entry 

of Slinker’s plea that the amendment of the Robbery, 1st

degree charge to Robbery, 2nd degree was based in part 

on the fact that weapon [sic] used by Slinker in the home 

invasion robbery could not be considered a deadly 

weapon. [Defense counsel] stated that she was aware of 

the Commonwealth’s characterization of the gun in the 

Slinker prosecution. The Commonwealth in prosecution 

of Probus at trial, tried him on the narrative that the gun 
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used by Slinker in the home invasion robbery was a 

“deadly weapon” or “dangerous instrument.” [Defense 

counsel] made a motion requesting that the trial judge, 

the Honorable Judge Karen Conrad, rule that the gun 

used by Slinker did not meet the definition of a “deadly 

weapon” or “dangerous instrument.” Judge Conrad ruled

that whether the gun could be considered a “deadly 

weapon” or “dangerous instrument” was a factual issue 

to be determined by the jury. [Defense counsel] 

testified at the evidentiary hearing that she had an intern 

at DPA, a law student, do research on airsoft guns and 

she learned that airsoft guns used metal pellets. [Defense 

counsel] testified that she never considered consulting an 

expert to educate herself on the nature of the [A]irsoft 

gun or considered presenting expert testimony evidence 

about the weapon used. [Defense counsel]’s awareness 

of the Commonwealth’s shifting stance on the 

characterization of the gun coupled with [Defense 

counsel’s] own motion about the characterization of the 

[A]irsoft gun indicates that she was fully aware during 

trial preparation and the trial that the characterization of 

the nature of the gun used in the robbery was a key issue. 

That [Defense counsel] was aware of the key relevance 

of establishing the nature of the gun used by Slinker, it is 

not reasonable that she failed at trial to try to establish 

what type of gun was used by Slinker in the robbery 

during the trial.

The gun used by Slinker was never recovered in this 

case, and Slinker provided the only description and 

information about the weapon used at the trial of this 

matter. Slinker testified that he had broken the orange tip 

off a “toy gun” that was used during the home invasion 

robbery. Slinker during his testimony at Probus’ trial 

referred to the gun used during the robbery as a “toy 

gun”, “fake gun”, “BB gun”, “toy BB gun” and 

“[A]irsoft gun.” Most often Slinker called the gun at 

issue a “BB gun.” [Defense counsel] failed to try to 

establish at trial what the defense’s position was as it 

pertained to the nature of the gun used. Clearly, 
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[Defense counsel] understood that Slinker had allegedly 

used an [A]irsoft gun in the robbery as she and her intern 

had conducted research on that type of weapon, the 

weapon has been characterized as such in Slinker’s plea, 

and she sought a ruling from the trial [sic] that the 

[A]irsoft gun used did not fall into the definition of a 

“deadly weapon” or “dangerous instrument.” Being 

cognizant of these issues, [Defense counsel] did not make 

reasonable efforts to establish/clarify/emphasize at trial 

what type of gun Slinker used in the crime. Also, 

[Defense counsel] failed to investigate the nature of 

[A]irsoft guns appropriately and present such information 

to the jury (potentially via expert testimony) to establish 

to the jury that the [A]irsoft gun used by Slinker did not 

meet the definition of a “deadly weapon” or “dangerous 

weapon”. From [Defense counsel]’s motion to the trial 

court and request that an intern perform research on the 

issue of [A]irsoft guns, it appears that [Defense counsel] 

recognized that Slinker’s use of an [A]irsoft gun in the 

offense was relevant, but did not make reasonable efforts 

in establishing before the jury: what type of weapon 

Slinker used and why the type of weapon used by Slinker 

was relevant to the charges in the case.

. . . 

[The Trial Court discussed the relevant legal standards 

for when a weapon constitutes a deadly weapon, noting 

that the Commonwealth must prove that the weapon is 

capable of producing death or serious physical injury to 

meet the statutory definition.]

The Supreme Court of Kentucky in Johnson v. 

Commonwealth, 327 S.W.3d 501, 507 (Ky. 2010) has 

recognized that a jury can reasonably find that pellet and 

BB guns can constitute a [sic] “deadly weapons” or 

“dangerous instruments” given the history of serious 

physical injuries which have been caused by BB guns. 

Herein, the alleged weapon was an [A]irsoft gun, not a 

BB gun. Although [Defense counsel] and an intern 
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conducted some manner of research about [A]irsoft guns, 

they presumably failed to appreciate the distinction of 

[A]irsoft guns from BB guns or appreciate how the case 

law on the issue of “deadly weapons” and “dangerous 

instruments” was relevant to that distinction. Regardless, 

[Defense counsel] did not via cross-examination of 

Slinker or presentation of expert testimony, make 

reasonable efforts to communicate to the jury that 

Probus’ argument was that Slinker used an [A]irsoft gun 

in the robbery or that an [A]irsoft gun is not a “deadly 

weapon,” i.e. “the type of weapon form [sic] which a shot 

could cause death or serious physical injury.” Wilburn

[v. Commonwealth, 312 S.W.3d 321,] 329 [(Ky. 2010)]. 

(Note: “Dangerous instrument” means any instrument, 

including parts of the human body when a serious 

physical injury is a direct result of the use of that part of 

the human body, article, or substance which, under the 

circumstances in which it is used, attempted to be used, 

or threatened to be used, is readily capable of causing 

death or serious physical injury. KRS 500.080(3).) That 

expert testimony would be needed to establish the nature 

of an [A]irsoft gun would be clear, as it is specialized 

knowledge, and not information that lay people would 

know without [Defense counsel] presenting some 

evidence to the jury that an [A]irsoft gun by its nature 

does not qualify as a “deadly weapon” or “dangerous

instrument.”

At the evidentiary hearing, Probus presented the 

testimony of a firearms and ballistics expert, Charles 

Stephenson, who provided testimony about the nature of 

an [A]irsoft gun, is [sic] distinguished from a BB gun. 

Charles Stephenson performed testing using an [A]irsoft 

gun similar to the weapon allegedly used by Slinker in 

the home invasion robbery, and illustrated that an 

[A]irsoft gun does not eject a pellet with sufficient 

velocity to render it capable of breaking or penetrate [sic] 

human skin. Stephenson testified that [A]irsoft gun 

pellets will disintegrate when it strikes a surface, and that 

metal bbs cannot be loaded into an [A]irsoft gun. The 
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implication of this information on the nature of [A]irsoft 

guns being that [A]irsoft guns are not readily capable of 

causing death or serious physical injury.

As stated previously, [Defense counsel] recognized that 

there was an argument to be made that the [A]irsoft gun 

used by Slinker could not be considered a “deadly 

weapon” or “dangerous weapon [sic],” but did not 

actually put forth a reasonable effort at trial to establish 

that an [A]irsoft gun was used by Slinker or present any 

evidence or information to the jury about the nature of an 

[A]irsoft gun. [Defense counsel’s] performance as 

counsel was deficient, in that she recognized an issue but 

did not at Probus’ trial make reasonable efforts to address 

that issue. Probus’ conviction for Complicity to 

Robbery, 1st degree, Complicity to Burglary, 1st degree, 

and two counts of Complicity to Wanton Endangerment, 

1st degree all relied on the jury finding that Slinker used 

a “deadly weapon” or “dangerous instrument.” The 

Court finds that Probus did suffer prejudice from 

[Defense counsel’s] deficient performance, in that there 

is a reasonable probability that Probus would have 

obtained a different outcome if not for [Defense 

counsel’s] errors. There is a reasonable probability that 

if not for [Defense counsel’s] errors that Probus would 

have been convicted of a lesser offense. A conviction of 

a lower offense not only means a lower number of years, 

but also a radically different parole eligibility service 

percentage. The loss of an additional twenty years of a 

person’s life to imprisonment is not a minor matter, and 

the loss of a reasonable probability to be convicted of a 

lesser offense because of an attorney’s deficient 

performance is sufficiently prejudicial to a defendant.

Order at 3-8.
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STANDARD OF REVIEW

We review ineffective assistance of counsel claims under the standard 

set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984), and as adopted in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). 

Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016). The Strickland

standard requires proof of two prongs to establish ineffective assistance of counsel: 

first, counsel’s performance must be deficient; and, second, that deficient 

performance must have prejudiced the defendant. Strickland, 466 U.S. at 687, 104 

S. Ct. at 2064. 

Deficient performance is established when “counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant 

by the Sixth Amendment [to the United States Constitution].” Id. Our analysis of 

counsel’s performance focuses on the reasonableness of trial counsel’s actions. 

For example, while counsel must conduct a “complete investigation[,]” our review 

of the investigation is not of the investigation itself, but of the reasonableness of 

trial counsel’s decisions, to wit: “that counsel has a duty to make reasonable 

investigation or to make a reasonable decision that makes particular investigation 

unnecessary under all the circumstances and applying a heavy measure of 

deference to the judgment of counsel.” Haight v. Commonwealth, 41 S.W.3d 436, 
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446 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 

S.W.3d 151 (Ky. 2009), adopting standard announced in Strickland, supra. 

Our review must itself be comparative only to defense counsel who 

has reasonable abilities and means and is operating within other reasonable 

demands. “A reasonable investigation is not an investigation that the best criminal 

defense lawyer in the world, blessed not only with unlimited time and resources, 

but also with the benefit of hindsight, would conduct.” Id. (citing Thomas v. 

Gilmore, 144 F.3d 513 (7th Cir. 1998)). 

During the reasonableness review of counsel’s performance, we must

“indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance[.]” Strickland, 466 U.S. at 689, 104 S. Ct. at 

2065. “We must analyze counsel’s overall performance and the totality of 

circumstances therein in order to determine if the challenged conduct can 

overcome the strong presumption that counsel’s performance was reasonable.” 

McGorman, 489 S.W.3d at 736. 

Under the prejudice prong, “A defendant is prejudiced by counsel’s 

deficient performance when the ‘errors were so serious as to deprive the defendant 

of a fair trial, a trial whose result is unreliable.’” Commonwealth v. Searight, 423 

S.W.3d 226, 230 (Ky. 2014) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 

2064). To prove prejudice, there must be a showing of a reasonable probability of 
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a different outcome had counsel’s unprofessional errors not occurred. Id. “This 

reasonable probability is a probability ‘sufficient to undermine confidence in the 

outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2064). Both 

prongs must be met for relief to be afforded. Id. at 231.

On appeal of an ineffective assistance of counsel claim following an 

evidentiary hearing, we give deference to the trial court’s factual findings and 

determinations of witness credibility, reviewing factual findings for substantial 

evidence and clear error, while ultimately reviewing de novo the legal conclusion 

of whether counsel rendered ineffective assistance pursuant to Strickland. See

McGorman, 489 S.W.3d at 736.

ANALYSIS

The Trial Court found both deficient performance and resulting 

prejudice on the sole issue of counsel’s investigation and presentation of evidence 

regarding Airsoft guns. Though the Trial Court’s order is thorough and thoughtful 

on these analyses, we respectfully disagree with both conclusions. 

Initially, we begin our analysis of the Trial Court’s factual findings. 

Even after applying great deference to the Trial Court’s determination of witness 

credibility, we hold that there were two clear errors with the factual findings. 

First, the Trial Court found that the weapon used was an Airsoft gun, 

not a BB gun. This factual finding is not supported by substantial evidence and is 
-22-

clearly erroneous. The actual weapon used was never recovered, and the Kentucky 

Supreme Court on direct appeal found the evidence at trial was sufficient for a 

reasonable person to find that the weapon was a BB gun. 

The evidence at the post-conviction hearing, on the other hand,

focused on a straw weapon – an Airsoft weapon provided to Stephenson by 

Probus’s post-conviction counsel. And the Airsoft weapon provided by postconviction counsel was determinatively not even the same type of weapon used 

during the crime; at best there was a chance that it was “similar” to one of many 

Airsoft guns Probus owned when the crime occurred. 

Moreover, the evidence at the hearing did not establish that the only 

possible weapon used during the commission of the crime was an Airsoft gun. 

Probus’s testimony at the evidentiary hearing was that he had two or three Airsoft 

guns in the garage where Slinker had testified at trial he had obtained the weapon 

used for the crime. Probus further testified that the weapon tested by Stephenson 

was “similar” to one of the Airsoft guns in his garage. This testimony is not 

substantial evidence that the Airsoft gun tested was similar to the one used in the 

crime. There was admittedly at least one other Airsoft gun in the garage. And, 

more importantly, the fact that there were two or three Airsoft guns in the garage 

does not in and of itself prove that there were no other weapons in the garage when 

Slinker went to the garage to take a weapon. 
-23-

Probus also argues substantial evidence supports the Trial Court’s 

factual finding that an Airsoft gun was used because Slinker testified at trial that he 

broke the orange tip off the weapon. This testimony, Probus argues, should be 

read in light of 15 U.S.C.A.4 § 5001(b)(1) as establishing that the weapon was an 

Airsoft gun. That federal statute does require a distinguishing colorant, “blaze

orange,” as an “integral” and “permanent[] affix[ture]” on the tip or barrel of 

certain firearms, including Airsoft guns, when they are first sold. It does not 

require such orange plugs or tips on firearms or traditional BB or pellet-firing air 

guns. 

But this statute is not dispositive of the instant factual findings as it 

likewise does not prohibit an orange plug or tip from being placed on the barrel of 

other weapons. It is possible for a person to make a functioning firearm appear as 

a fake weapon. Cf. People v. De Los Santos, No. G037646, 2007 WL 2199995, at 

*3 (Cal. Ct. App. 4th Cir. Aug. 1, 2007) (“We also conclude there is also sufficient 

evidence to support a conclusion the weapon used to kill the victim was real, 

whether or not it had an orange tip.”) (unpublished/non-citable in California courts 

by operation of Rule 8.1115 of the California Rules of Court); Paredez v. State, 

No. 04-03-00764-CR, 2004 WL 1835821, at *3 (Tex. App. Aug. 18, 2004) (“This 

evidence suggests that the gun was not a toy gun with an orange cap but instead a 

4 United States Code Annotated.
-24-

real gun with some orange paint on the end.”). Compare with, New York City, 

N.Y., Code § 10-131(j)(1)(ii) (defining a firearm with a substantial portion of the 

exterior of the weapon in bright orange as a “deceptively colored firearm” and 

making ownership of the same illegal). 

Moreover, Probus’s argument from this statute presents a logical 

fallacy. As the argument goes, because the law requires that all non-deadly and 

non-dangerous firearms have orange tips, therefore all firearms with orange tips 

are non-deadly and non-dangerous. But the inverse is not necessarily true. Indeed, 

if all judges must wear robes, it is not also true that anyone wearing a robe must be 

a judge. 

Additionally, all of this newly-introduced evidence at the postconviction hearing must be read in light of the evidence adduced at trial. At trial,

the evidence repeatedly demonstrated the weapon was a BB gun. The victim 

testified that she felt the cold steel of the weapon during the burglary and robbery. 

Slinker more often than not referred to the weapon as a BB gun. And the 

Kentucky Supreme Court on direct appeal held the evidence at trial sufficient to 

survive a directed verdict motion and permit a reasonable juror to find guilt beyond 

a reasonable doubt on the BB gun theory. The evidence at the evidentiary hearing, 

on the other hand, was not substantial: the weapon tested was a straw weapon 

selected by Probus’s post-conviction counsel; Probus said he had more than one 
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Airsoft gun in his garage; and Probus only stated that the weapon was “similar” to 

one of the Airsoft guns he owned. Not weighing the veracity of this postconviction testimony at all, but believing it all to be true, it still was not substantial 

evidence to say conclusively the weapon tested by Stephenson was similar to the 

weapon used by Slinker during the commission of the crime. Being unsupported 

by substantial evidence, this finding is clearly erroneous that the weapon tested 

was similar to the weapon used in the crime. 

We also note that in this same vein of testimony, the Trial Court found 

the “implication” of the information given by Stephenson was that “[A]irsoft guns 

are not readily capable of causing death or serious physical injury.” Order at 7. 

However, this implication is not supported by substantial evidence. It is based on 

Stephenson’s direct examination testimony and his testing of one, defenseproffered Airsoft weapon. Stephenson testified on cross-examination that there 

exist other, more powerful Airsoft weapons that have substantially higher terminal 

velocities. Stephenson also testified that he had on protective eyewear during his 

tests and admitted it was possible for an Airsoft weapon to damage one’s eyes. 

Accordingly, there was not substantial evidence to support a finding that Airsoft 

guns are categorically not readily capable of causing death or serious physical 
-26-

injury.5 Moreover, such a categorical statement would necessarily be a legal 

conclusion that these weapons do not fit within the statutory definitions, a legal 

conclusion which we would review de novo.

6

 

Second, the Commonwealth argues that the following statement by 

the Trial Court is an erroneous factual finding, “[Defense counsel] did not make 

reasonable efforts to establish/clarify/emphasize at trial what type of gun Slinker 

used in the crime.” Order at 5. However, whether Defense counsel’s actions are 

reasonable is a legal conclusion that we review de novo in the following sections.

A. Strickland Deficient Performance.

First, we analyze whether Defense counsel rendered deficient 

performance under Strickland. Though the Trial Court conducted a thorough 

analysis and concluded that counsel’s performance fell below the Strickland

5 We further note that while the focus has been on the damage that the projectile could cause, one 

could wield a toy gun as a bludgeon in such a way that it could cause death or serious physical 

injury. Cf. State v. Hicks, 14 Ohio App. 3d 25, 469 N.E.2d 992 (1984). In Kentucky, a 

dangerous instrument is defined as “any instrument . . . under the circumstances in which it is 

used, attempted to be used, or threatened to be used, is readily capable of causing death or 

serious physical injury.” KRS 500.080(3). As the Trial Court correctly determined during 

Probus’s trial, because the weapon was visible to the victim, the jury had to determine whether 

the evidence was sufficient to support a finding that the weapon was a deadly weapon or 

dangerous instrument. See Lawless v. Commonwealth, 323 S.W.3d 676 (Ky. 2010) (compiling 

cases). Here, we do not need to determine whether the weapon could be used as a bludgeon, but

it would be error to conclude categorically that all Airsoft weapons cannot constitute dangerous 

instruments when they could be used as bludgeons. 

6

See supra Note 4 for our obiter dicta on this issue.
-27-

reasonableness standard, we have reviewed the evidence and, respectfully, have 

arrived at a different conclusion. 

We reiterate that our review of counsel’s performance must provide 

“great deference” to trial counsel and afford a “strong presumption that counsel 

acted reasonably and effectively.” Ford v. Commonwealth, 628 S.W.3d 147, 156 

(Ky. 2021) (citations omitted). Moreover, a counsel’s investigation need only be 

reasonable, “not an investigation that the best criminal defense lawyer in the world, 

blessed not only with unlimited time and resources, but also with the benefit of 

hindsight, would conduct.” Haight, 41 S.W.3d at 446. Rather, the question is 

more appropriately tailored to “whether the known evidence would lead a 

reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527, 

123 S. Ct. 2527, 2538, 156 L. Ed. 2d 471 (2003).

Here, counsel conducted a reasonable investigation and formulated a 

reasonable defense. The undisputed evidence showed that Defense counsel 

recognized one of the issues in the case – whether the weapon used fell within the 

statutory definitions of deadly weapon or dangerous instrument – and investigated 

the same and presented multiple defenses. Defense counsel researched the nature 

of the potential weapon used, even utilizing an intern to research Airsoft guns. 

Defense counsel testified that they had over 20 banker’s boxes of research in the 

case. Defense counsel was aware that based on the research she reviewed, some 
-28-

Airsoft guns can shoot metallic projectiles, which, given the law in Kentucky,

could make them potentially capable of causing at least a serious, physical injury. 

Defense counsel was also aware, based on the law and the investigation, that the 

weapon would not be dangerous if it was only shooting non-metallic projectiles. 

Thus, she attempted in numerous ways to show that the weapon Slinker used was a 

toy Airsoft gun that should result in lesser charges. 

To that end, at trial Defense counsel thoroughly cross-examined 

Slinker about the weapon, utilizing his prior statements and his plea in attempting 

to pin him down on the type of weapon he used:

Def. Counsel: I want to talk to you a little bit more about 

this gun. Now you indicated to Detective Whitehill that 

it was a toy gun, is that correct?

Slinker: Yes, ma’am.

Def. Counsel: A fake gun?

Slinker: A BB gun.

Def. Counsel: Well, you didn’t use BB in the statement, 

but was it a plastic BB gun?

Slinker: It was a BB gun.

Def. Counsel: I don’t know what that is?

Slinker: It’s, uh, uh, a BB gun.

Def. Counsel: Ok. There are different types of BB guns, 

and so let me move forward from this. You actually 

appeared in front of Judge Conrad to enter that plea that 
-29-

Mr. Baxter [the Commonwealth’s Attorney] went over 

you with?

Slinker: Yes, ma’am.

Def. Counsel: One of the reasons that the 

Commonwealth Attorney said at that time that he was 

reducing the charges was because of the type of gun that 

you had used, do you remember that?

Slinker: Yes, ma’am.

Def. Counsel: And he said that the reason that he was 

reducing the charges was because you told him that it 

was a fake gun, a toy gun, is that correct?

Slinker: It was a toy BB gun.

Def. Counsel: On the record you actually said to the 

Court that it was a, what’s it called? Airsoft gun? Is that 

correct?

[Slinker shrugs.]

Def. Counsel: We have a copy of the video tape if you’d 

like to watch it.

Slinker: I don’t, I . . .

Def. Counsel: You don’t remember telling the judge that 

it was an Airsoft gun?

Slinker: Yes, yes, yes . . .

Def. Counsel: Okay, so you do remember telling the 

judge that it was an Airsoft gun, and telling the 

prosecutor that it was a toy gun, that it was a fake gun?

Slinker: Yes.
-30-

Def. Counsel: And you got a reduction in your charges 

because, based upon that, is that correct?

Slinker: Yes, ma’am.

VR 11/1/17, 3:02:50. 

This cross-examination by Defense counsel effectively showed to the 

jury that Slinker previously referred to the gun as a toy, fake, and Airsoft gun. 

Moreover, Defense counsel effectively showed the jury that if they were to believe 

the gun was a toy gun, a fake gun, or an Airsoft gun, the lesser-included offenses 

were the proper charges, as Slinker’s plea could have been based on the weapon 

falling into one of these three categories.7 However, as the Kentucky Supreme 

Court and the Trial Court both noted, throughout the rest of Slinker’s testimony, he

contradicted this testimony, most often referring to the weapon as a BB gun. 

His testimony created a fact issue:

7 As the Kentucky Supreme Court held, this testimony showed the nature of the weapon used 

was one of many bases that would support the reduced charges for Slinker:

But the only basis for Probus’s argument that the Commonwealth 

reduced Slinker’s charges because the gun at issue was not a 

traditional firearm comes from Slinker’s testimony at Probus’s 

trial. This testimony alone cannot convincingly support the 

assertion that the Commonwealth had no other basis for reducing 

Slinker’s charges than this fact alone. In sum, the factual basis for 

Probus’s argument is severely lacking, because, even if Slinker is 

correct that the Commonwealth reduced his charges based on the 

characterization of the gun at issue, the Commonwealth could have 

reduced Slinker’s charges for several other reasons.

Probus, 578 S.W.3d at 345. 
-31-

whether the weapon was a deadly weapon was a question 

of fact that should be submitted to the jury to decide, a 

jury could reasonably determine that a pellet or BB gun 

was a deadly weapon (i.e. a type of weapon from which a 

shot could cause death or serious physical injury) in light 

of history of serious physical injuries caused by BB or 

pellet guns. 

Johnson v. Commonwealth, 327 S.W.3d 501, 507 (Ky. 2010) (citations and 

footnotes omitted). 

Defense counsel’s focus on the nature-of-the-weapon defense also

kept the Commonwealth from later amending the indictment to include the 

alternative theory for first-degree robbery, namely that the perpetrator caused

physical injury to a non-participant in the crime. KRS 515.020(1)(a). See, e.g.,

Alderson v. Commonwealth, 670 S.W.3d 884, 896-97 (Ky. 2023) (“Whether an 

amendment of an indictment during a trial to allow for a different method of 

committing the same crime is permissible, is a highly fact-specific inquiry 

depending on the evidence available to the defendant, the defenses offered and 

whether the defendant would be prejudiced . . . .”). 

We are reminded that “as a court far removed from the passion and 

grit of the courtroom, we must be especially careful not to second-guess or 

condemn in hindsight the decision of defense counsel. A defense attorney must 

enjoy great discretion in trying a case, especially with regard to trial strategy and 

tactics.” Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998). In the 
-32-

instant case, Defense counsel conducted a thorough investigation and employed 

defense tactics that allowed the jury to find either that Probus was completely 

innocent due to his alibi, or that Probus was guilty of the lesser-included offenses 

due to the weapon being a toy, fake, or Airsoft gun. The jury rejected both 

defenses, though.

In sum, based on the evidence at trial and that adduced at the 

evidentiary hearing, we respectfully disagree with the conclusion the Trial Court 

drew that Defense counsel’s investigation was deficient as it related to the type of 

weapon used and that her performance was deficient in relation to the same issue. 

“[S]trategic choices made after thorough investigation of law and facts relevant to 

plausible options are virtually unchallengable[.]” Strickland, 466 U.S. at 691, 104 

S. Ct. 2066. Here, Defense counsel conducted a reasonable and thorough 

investigation of the case – including researching the nature of Airsoft guns, the 

contents of Slinker’s plea, and the facts of the case – and she presented a three-part 

defense that the jury ultimately rejected. Having reasonably conducted an 

investigation and reasonably prepared defenses, we find Defense counsel’s 

performance did not amount to Strickland deficient performance. Thus, we reverse 

the Trial Court on this Strickland prong.
-33-

B. Strickland Prejudice.

Additionally, we respectfully disagree with the Trial Court that 

counsel’s performance resulted in Strickland prejudice. To find prejudice, we 

would have to determine that the result of the trial was unreliable. We reiterate 

that under the prejudice prong, “A defendant is prejudiced by counsel’s deficient 

performance when the ‘errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is unreliable.’” Searight, 423 S.W.3d at 230 (quoting 

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). To prove prejudice, there must be 

a showing of a reasonable probability of a different outcome had Defense 

counsel’s unprofessional errors not occurred. Searight, 423 S.W.3d at 230. “This 

reasonable probability is a probability ‘sufficient to undermine confidence in the 

outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). 

Here, Defense counsel effectively put before the jury evidence that 

Slinker’s plea bargain was contingent on the weapon being a fake, a toy, or an 

Airsoft gun. However, arguendo, had Defense counsel’s investigation and 

presentation of evidence regarding Airsoft guns constituted Strickland deficient 

performance, the additional evidence from the evidentiary hearing is not of such 

quality as to undermine confidence in the outcome of this case. The Trial Court’s 

analysis on this Strickland prong focused solely on the reduction in time that lesser 
-34-

charges would bring. But our analysis must be broader into whether the trial itself 

was unreliable and unfair as a result.

To that end, we note that two of the three defenses were not affected 

at all by the evidence from the hearing regarding the Airsoft weapon testing. 

Probus’s alibi defense was not changed, nor was Probus’s pre-trial challenge based 

on Slinker’s plea. The jury still had factual questions to resolve. And the evidence 

at trial, as shown by the Kentucky Supreme Court’s detailed recitation of the facts, 

was highly inculpatory.

Moreover, had Defense counsel presented expert testimony about the 

Airsoft guns, the evidence would have cut both ways as it did at the evidentiary 

hearing. The expert testified that some Airsoft guns do not fire at such a velocity, 

but he also admitted that there are some Airsoft guns that do fire at much higher 

velocities. Moreover, he testified that being shot in the eye could injure the eye. 

Any resulting prejudice is further eroded by the fact that it was 

Probus’s testimony at the evidentiary hearing that established the similarity 

between the Airsoft gun tested and the one kept in Probus’s garage. Notably, 

Probus did not testify during the guilt phase at his trial. 

Accordingly, we cannot say that failure to present this additional 

evidence resulted in a trial whose result is unreliable. Thus, we reverse on this 

issue and remand for further proceedings on Probus’s remaining claims.
-35-

C. Procedural Bar.

The Commonwealth also argues that Probus’s underlying claim on 

this issue is procedurally barred as having been raised and rejected on direct 

appeal. The Commonwealth cites to Prescott v. Commonwealth, 572 S.W.3d 913 

(Ky. App. 2019). Having already found there was no ineffective assistance of 

counsel on the underlying claim, we need not address this alleged, procedural bar. 

We note, however, that a review of the reasonableness of Defense counsel’s 

investigation and the reasonableness of Defense counsel’s presentation of the 

evidence is collateral to a review of the sufficiency of the evidence and not 

“redundant” or “essentially the same components of his original arguments 

presented on direct appeal, despite being assigned different labels[,]” as were the

arguments in Prescott. 572 S.W.3d at 923. 

CONCLUSION

Following our de novo review of Probus’s ineffective assistance of 

Defense counsel claim regarding her investigation and presentation of evidence 

about an Airsoft weapon, we conclude that Defense counsel’s performance was not 

deficient and did not result in Strickland prejudice. Accordingly, we REVERSE 

the Trial Court’s order on this issue and REMAND for additional proceedings on 

Probus’s remaining ineffective assistance of counsel claims.

ALL CONCUR.
-36-

BRIEFS FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky

BRIEF FOR APPELLEE:

David L. Stewart

La Grange, Kentucky