IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER,

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE

ACTION.
.0uprPmr Courf of 'gt~

KEVIN DARRYL MARTINDALE

V

2007-SC-000322-TG

RENDERED: OCTOBER 23, 2008

MEMORANDUM OPINION OF THE COURT

AFFIRMING

I . FACTUAL AND PROCEDURAL HISTORY.

NOT TO BE PUBLISHED

ON APPEAL FROM DAVIESS CIRCUIT COURT

HONORABLE THOMAS O. CASTLEN, JUDGE

NO . 06-CR-00328

APPELLANT

COMMONWEALTH OF KENTUCKY APPELLEE

A circuit court jury convicted Keith Martindale of kidnapping, criminal trespass,

and for being a persistent felony offender (PFO). Martindale argues that the trial court

violated his substantial rights by granting the Commonwealth's motion to amend the

indictment during trial . We find no error and affirm the conviction .

Police arrested Martindale after he fought with his ex-girlfriend in her home and

allegedly struck her at least twice. He was charged with kidnapping, burglary in the first

degree, alcohol intoxication, and PFO.

Martindale was originally charged with kidnapping with the "intent to accomplish

or to advance the commission of a felony or felonies, that being burglary and assault"

under Kentucky Revised Statutes (KRS) 509.040(1)(b) . At the close of the

Commonweeklth's case-in-chief, the prosecutor moved to amend the indictment to add
language from KRS 509.040(1)(c) to indicate that Martindale committed the offense of

kidnapping with intent to "inflict bodily injury or to terrorize the victim ." Martindale's

attorney objected to the amendment, stating that (1) Martindale's substantial rights

would be prejudiced and (2) she would have questioned the victim differently and

prepared analysis and expert testimony to refute evidence that the victim was

"terrorized ." But, at this point, Martindale did not request a continuance of the trial . And

the trial court allowed the amendment.

The jury convicted Martindale of kidnapping, criminal trespass, and PFO. The

trial court sentenced him to ten years for the kidnapping, which was enhanced to twenty

years as a PFO.

11 . ANALYSIS .

An indictment is sufficient under Kentucky law 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 detail the essential elements of the charged crime as

long as it fairly informs the defendant of the specific offense charged and does not

mislead . Kentucky's Rules of Criminal Procedure (RCr) allow an indictment to be

amended so long as : (1) no additional or different offense is charged ; and (2) the

substantial rights of the defendant are not prejudiced . If justice requires, the court must

grant the defendant a continuance when such an amendment is permitted .4

Ernst v. Commonwealth, 160 S.W .3d 744, 751-52 (Ky. 2005).

Id. at 752, citing Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996).

RCr 6.16.

Id.
A. The Amendment to the Indictment Did Not

Charge an Additional or Different Offense.

No additional or different offense was charged in this case. In Schambon v.

Commonwealth, we found no error after the trial court allowed the prosecution to amend

the indictment at the close of its case-in-chief. 5 We said that the amendment "merely

altered the designation of the subsection of the statute under which appellants were

charged. The offense was the same. No additional evidence was required to prove the

amended offense . . . .

,6

In the present case, the original indictment charged Martindale with kidnapping

under KRS 509.040 . Yet kidnapping, under this statute, can be proven either when the

defendant's intent is "fflo accomplish or to advance the commission of a felony," KIRS

509.040(l)(b), which is how Martindale was originally charged, or "[t]o inflict bodily injury

or terrorize the victim or another," KIRS 509.040(l)(c), which was the language included

in the amendment. The amendment merely added language from KRS 509.040(1)(c) to

indicate that Martindale's intention also could have been to "terrorize" the victim. The

amendment to the indictment only designated another subsection of the statute used for

the original charge. We do not believe this amendment constituted an additional or

different charged offense under Schambon since the principal charge was the same,

and no additional evidence was required to prove the amended offense . The

amendment simply provided a different means by which the charged offense was

committed .

5

821 S.W. 2d 804, 810 (Ky. 1991).
B . Martinda,le's Substantial Rights Were Not Prejudiced .

Additionally, the substantial rights of the defendant were not prejudiced . With

regard to the amendment of indictments, we have said that "reasonable certainty about

the charge .i s required," and that a defendant has the right to rely on the fact that he or

she only has to rebut evidence of which he or she was given notice .' An amendment

may be said to be prejudicial if it leads to a dramatic turn of events in a case, or the

result would be an undue and unfair surprise. 8 On the other hand, we have disregarded

allegations of prejudice when we concluded that the Commonwealth did not change

its

theory of the case mid-trial, nor did it amend to add any charges that were not

substantiated by the evidence . 9

The basic rule is that an amendment should not be allowed when a defendant

would not have notice to prepare for a defense. The defense should not have to

prepare to meet additional specific charges, and such insertion during a trial would be

prejudicial to the accused. 10 Martindale was aware of the nature of the charge and the

underlying fads, and he has not shown that he was surprised or misled by the

amendment to the indictment . The Commonwealth pointed out at trial that Martindale

was charged in the indictment with kidnapping with intent to accomplish the felonies of

burglary and assault, and so he was already on notice that he would have to defend

against the consequences of assault, such as bodily injury or fear. In fact, the statutory

7

8

9

10

Wolbrecht v. Commonwealth, 955 S.W.2d 533, 537 (Ky. 1997).

Id.

Commonwealth v. McKenzig, 214 S.W.3d 306, 308 (Ky. 2007).

Maum v. Commonwealth, 490 S.W.2d 748 (Ky. 1973).
definition of assault includes the infliction of physical injury ." So Martindale was not

required, in the Commonwealth's assessment, to meet a substantially different charge.

We agree that the amendment was not a dramatic turn of events that would

result in an "unfair surprise ." As explained above, the amendment was permissible

because the basic offense stayed the same and the only change was that another

statutory subsection of the kidnapping charge was added . A substantial change in the

theory of trial did not occur, and Martindale was not forced to meet additional charges or

establish a different defense . And Martindale had not presented his case in chief, which

gave him leeway in presenting his case to counter the amended charge. For all these

reasons, we are not persuaded that there was prejudice to Martindale's substantial

rights.

C. Martindale Waived a Continuance By

Not Specificaliv Askinq for One.

The criminal rules provide that if justice requires, courts shall grant a continuance

when an amendment to an indictment is permitted .

12 In McKenzie v. Commonwealth,

we stated that if the defendant felt an amendment was prejudicial, the defense could

have moved for a continuance in order to revamp its defense. We determined that if

no such motion is made, then any claim of prejudice by the lack of a continuance is

waived 14 Thus, a defendant must make the request for a continuance known to the

court.

KRS 508.010, 508.020 and 508.030.

RCr 6.16.

McKenzie, 214 S.W.3d at 308.

Id. at 309.
Martindale argues that even though McKenzie requires that the defense make

known its need for a continuance, the language in RCr 6.16 does not place any such

requirement on the defendant. Martindale further argues that the court must grant a

continuance on its own motion even if the defense does not ask for it-given the

language in the rule that states that the court "shall grant the defendant a continuance."

But Martindale cites no authority in support of this argument. And McKenzie is

controlling law.

Martindale did not request a continuance after the amendment. He only argues

that the amendment would affect his substantial rights and that his defense might have

been different. He still makes no showing that additional time was needed . Because

Martindale never asked specifically for more time to prepare his case, he waived any

right to a continuance of the trial .

111 . CONCLUSION.

For the foregoing reasons, Martindale's convictions and sentences are affirmed .

Minton, CJ; Abramson, Cunningham, Noble, Schroder, and Scott, JJ., sitting .

All concur. Venters, J ., not sifting .
COUNSEL FOR APPELLANT:

Karen Shuff Maurer

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane, Suite 302

Frankfort, Kentucky 40601-1133

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General of Kentucky

Heather M. Fryman

Assistant Attorney General

Office of Criminal Appeals

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601