Entry of Interpersonal Protective Order Affirmed – Published Opinion from Ky. Court of Appeals

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Jones v. Jones

Fayette Circuit Court

Glynis was married to Johnathan’s deceased brother. Glynis petitioned for an interpersonal protective order (IPO) against Johnathan. At the hearing, Glynis testified that she and Johnathan had not seen or spoken to each other for several years before her husband’s death. However, thereafter, they checked in on each other regularly. Johnathan had visited Glynis’ home on more than one occasion. During one visit, Johnathan brought a gun, which Glynis requested he not bring back. Johnathan gave Glynis $400 for her husband’s funeral, which she thought was a gift. Glynis introduced several text messages between her and Johnathan, in one of which he indicated he was going to have sexual intercourse with Glynis and would be at her house “tomorrow.” The next day, Johnathan indicated via text message that he was on his way to Glynis’ home. She allowed Johnathan inside. Johnathan then removed his gun from its holster and placed it on a stool. He demanded that Glynis repay him the $400. Glynis replied that she was unable to repay him and questioned whether the sexually explicit text messages were sent to her by mistake. Johnathan said he knew who he was texting and had been sexually aroused by hugging her previously. He told Glynis she was going to have sex with him to repay him or he would “do it for her.” Glynis testified that she was frightened by Johnathan’s conduct and ran to her bedroom to get her cellphone to call the police. Johnathan followed her, grabbed her in a “bear hug” and attempted to pull her into the bedroom. His body was against her back with his arms pressing beneath her breasts. Glynis held onto the doorframe to keep from being pulled into the bedroom, broke free, ran outside and reported the incident to the police. Glynis testified that she was traumatized by the event and no longer felt comfortable sitting on her porch or being outside after dark. She also installed additional locks on her doors.

James Jennings, Glynis’ friend, testified next that he was present when Glynis received the initial text messages from Johnathan, which text messages made Glynis upset and scared. He testified that since the incident, Glynis appeared worried about her doors being locked.

Johnathan then moved for a directed verdict, which Family Court denied. Johnathan testified that he did send Glynis the text messages, but claimed they were meant for his acquaintance, Candice Walker, with whom he frequently engaged in sexually explicit conversations. He stated he did not recognize the mistake even after Glynis responded. He admitted going to Glynis’ home but only to tell her he could not give her any more money. He testified that Glynis petitioned for the IPO because he refused to give her additional funds. He further testified that he was not physically attracted to Glynis.

Candice next testified that she occasionally engaged in sexually explicit conversations with Johnathan and had received messages from Johnathan on the dates Johnathan texted Glynis and went to her home. However, she could not recall the contents of the messages but testified they were likely sexual in nature. Johnathan then renewed his motion for a directed verdict, which Family Court denied.

Family Court entered an IPO, finding Glynis’ testimony to be more credible and that Johnathan’s actions constituted attempted sexual assault. Family Court further found Johnathan committed sexual abuse in the third degree and stalking. Johnathan appealed.

Johnathan argued that (1) Family Court improperly interpreted KRS 456.010(6) to include attempted sexual assault and abused its discretion in finding attempted sexual assault occurred and may again occur; (2) Family Court abused its discretion in finding stalking occurred and may again occur; (3) Family Court abused its discretion in finding Johnathan committed sexual abuse in the third degree; and (4) Family Court erred in denying his motions for directed verdict.

The Court of Appeals held that KRS 456.010(6) includes attempted sexual assault. KRS 456.010(6) defines sexual assault as “conduct prohibited as any degree of rape, sodomy, or sexual abuse under KRS Chapter 510 or incest under KRS 530.020”, which does not include attempted sexual assault. To read it to exclude attempted sexual assault would run counter to the legislative intent of “[a]llow[ing] victims to obtain effective, short-term protection against further wrongful conduct in order that their lives may be as secure and as uninterrupted as possible[.]” Furthermore, providing protection through an IPO to someone who is in a dating relationship with someone who placed him or her in imminent fear of sexual abuse and barring the same protection to someone who was not in a romantic relationship would be absurd.

The Court of Appeals held that Family Court did not abuse its discretion in finding attempted sexual assault occurred and may occur again. The trial court, not the appellate court, is the trier of fact and is responsible for judging the credibility of witnesses. Family Court found Glynis’ testimony to be more credible, which a review of the record showed not to be an abuse of discretion.

The Court of Appeals held that Family Court did not err by finding Johnathan stalked Glynis. A person is guilty of stalking in the second degree when he intentionally (a) [s]talks another person; and (b) [m]akes an explicit or implicit threat with the intent to place that person in reasonable fear of (1) [s]exual contact as defined in KRS 510.010; (2) [p]hysical injury; or (3) [d]eath. To “stalk” means to engage in an intentional course of conduct [d]irected at a specific person or persons; [w]hich seriously alarms, annoys, intimidates, or harasses the person or persons; and [w]hich serves no legitimate purpose. The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress. “Course of conduct” is a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose. One (1) or more of these acts may include the use of any equipment, instrument, machine, or other device by which communication or information is transmitted, including computers, the Internet or other electronic network, cameras or other recording devices, telephones or other personal communications devices, scanners or other copying devices, and any device that enables the use of a transmitting device.

Jonathan’s actions did constitute the requisite “course of conduct.” Johnathan repeatedly sent Glynis text messages, including one in which he indicated he was going to have sex with her; went to her home uninvited and armed; told her he would “do it for her” if she refused sex; made additional sexual comments; and attempted to pull her into a bedroom. These acts show a continuity of purpose, and he attempted at least two acts with his purpose of sexual intercourse with Glynis regardless of her unwillingness to participate.

Glynis was seriously alarmed, intimidated, or harassed by Johnathan’s actions. She was upset and frightened by his initial text messages. She was frightened when Johnathan came to her home demanding money or sexual intercourse. Glynis ran from Johnathan and called the police. Further, Johnathan’s actions were explicitly threatening, which conduct would put a reasonable person in fear of sexual contact and cause a reasonable person substantial mental distress.

The Court of Appeals held that Family Court did not err by finding Johnathan committed sexual abuse in the third degree. A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent. Sexual contact is any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party. Johnathan’s manner of touching Glynis, his prior words and actions, as well as the timeframe in which the incident occurred support Family Court’s finding that the “bear hug” was for Johnathan’s sexual gratification and constituted sexual contact to which Glynis did not consent.

The Court of Appeals held that Family Court did not err in denying Johnathan’s motions for a directed verdict. A directed verdict is improper in a bench trial; the proper motion is for involuntary dismissal. However, even thereunder, Family Court did not err, because Family Court properly found Glynis’ testimony credible, and evidence was sufficient to survive the motions.

Digested by Nathan R. Hardymon

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