Background
Tristian Long was married to the cousin of two minor girls, C.H. (age 13) and A.H. (age 12), who regularly babysat for Long’s family. In June 2024, Long initiated a series of sexually explicit text messages with both sisters. He sent C.H. unsolicited photographs of his penis and encouraged her, at 3 a.m., to touch herself, while also scheming to have her come to his home while his wife was at work. Eight days earlier, Long had sent similarly explicit messages to A.H., questioning her sexual history, commenting on her physical appearance in a sexual manner, and discussing his own nude photographs in a manner designed to desensitize and groom her.
C.H. and A.H.’s father discovered the messages and contacted police. Long was indicted in Ballard Circuit Court on charges of unlawful transaction with a minor in the first degree, distribution of obscene matter, and being a second-degree persistent felony offender. At trial, after the Commonwealth rested, the circuit court concluded there was insufficient evidence that C.H. actually engaged in any sexual activity — required for the completed offense under KRS 530.064(1)(a) — and permitted the Commonwealth to amend the indictment to charge criminal attempt. The jury convicted Long on the amended charge and the remaining counts, recommending a 17-year sentence, which the court imposed.
Long appealed on four grounds: (1) the circuit court erred by permitting the indictment amendment rather than granting a directed verdict; (2) the A.H. text messages were improperly admitted as prior bad acts without adequate notice under KRE 404(c) and in violation of KRE 404(b); (3) A.H.’s victim impact statement was improperly allowed at sentencing because she was not the charged victim; and (4) the circuit court lacked authority under the 2022 amendment to KRS 441.265 to assess pretrial jail fees.
The Court’s Holding
The Court of Appeals affirmed the conviction on all three evidentiary and procedural challenges. On the indictment amendment, the court held that allowing the Commonwealth to charge criminal attempt after the close of proof was not reversible error, relying on Justice v. Commonwealth, 636 S.W.3d 407 (Ky. 2021). Even if the circuit court technically should have ruled on the directed verdict motion before permitting amendment, any error was harmless because Long suffered no prejudice from defending against a lesser-included attempt offense. On the A.H. text messages, the court found no palpable error under KRE 103(e): Long had actual notice of the messages and had himself filed a motion in limine addressing them, satisfying KRE 404(c)’s notice purpose. The messages were properly admitted under KRE 404(b)(1) to show Long’s intent, absence of mistake, and plan — sent only eight days apart to sisters of nearly the same age, both relatives of Long’s wife, and both reflecting a pattern of grooming behavior. On A.H.’s victim impact statement, the court noted it was read only to the sentencing judge — not to the jury — and that courts have discretion under Sherroan v. Commonwealth, 142 S.W.3d 7 (Ky. 2004), to consider statements from individuals affected by the crime beyond the named victim.
The court vacated and remanded solely on the jail fee issue. The 2022 amendment to KRS 441.265(1) eliminated the prior statutory reference to the “sentencing court” as the entity authorized to impose jail fee reimbursement obligations. The court, persuaded by the Kentucky Supreme Court’s reasoning in the unpublished decision Bowlin v. Commonwealth, 2025 WL 2999235 (Ky. Oct. 23, 2025), concluded the circuit court lacked authority under the amended statute to assess pretrial jail fees — particularly fees assessed under Ballard County’s schedule when Long had been held in McCracken County jail, with no evidence of the McCracken County fee schedule or any intergovernmental agreement presented at sentencing.
Key Takeaways
- Under Justice v. Commonwealth, a mid-trial amendment of an indictment from a completed offense to criminal attempt is permissible under RCr 6.16 where it conforms to trial evidence and the defendant suffers no prejudice from defending a lesser-included offense.
- A defendant who files a motion in limine addressing specific prior-act evidence will generally be found to have received adequate KRE 404(c) notice, even without formal pretrial disclosure, because the rule’s purpose — enabling the defense to challenge admissibility — has been fulfilled.
- Grooming-pattern evidence involving a second minor victim is admissible under KRE 404(b)(1) to prove intent, plan, and absence of mistake where the conduct is closely similar in time, victim profile, and method.
- The 2022 amendment to KRS 441.265(1), which deleted the phrase “sentencing court,” removed the trial court’s authority to directly impose pretrial jail fee reimbursement; fee assessments must be remanded for reconsideration consistent with the amended statutory framework.
- Victim impact statements at a bench sentencing hearing may permissibly come from individuals beyond the named victim; the key constraint is that such statements not be presented to the jury during the penalty phase.
Why It Matters
This decision reinforces the procedural flexibility courts retain to conform charges to trial evidence through mid-trial indictment amendments, provided defendants are not prejudiced — a doctrine with broad application in cases where proof at trial falls short of what was charged but clearly establishes a lesser-included attempt. Defense counsel should be alert to the distinction: the harmless-error gloss applied here may not hold where a defendant can demonstrate actual prejudice in trial strategy.
The jail fee ruling has statewide practical significance. The 2022 amendment to KRS 441.265 — quietly removing the “sentencing court” from the reimbursement mechanism — appears to have generated widespread sentencing orders that exceed current statutory authority. Trial practitioners and appellate counsel should scrutinize pretrial jail fee assessments in any case sentenced after July 14, 2022, particularly where fees are calculated under a county schedule different from the county of actual pretrial detention. Note that this opinion is designated “Not to Be Published” under Kentucky rules and therefore carries no precedential weight, though its reasoning is instructive.