Opinion
NO. 2018-CA-000812-ME
01-11-2019
GORDON DEAN KISER, JR. APPELLANT v. JO ANN KISER APPELLEE
BRIEFS FOR APPELLANT: R. Stephen McGinnis Greenup, Kentucky BRIEF FOR APPELLEE: Whitley Hill Bailey W. Jeffrey Scott Grayson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER FAMILY COURT
HONORABLE DAVID D. FLATT, JUDGE
ACTION NOS. 18-D-00029 & 18-D-00029-001 OPINION
AFFIRMING
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BEFORE: DIXON, JONES AND THOMPSON, JUDGES. THOMPSON, JUDGE: Gordon Dean Kiser, Jr., appeals from a domestic violence order granting protection to his mother, Jo Ann Kiser. Gordon argues that the Carter Family Court erred in failing to grant him a directed verdict when the matter was either fully adjudicated or Jo Ann had elected another remedy, erred in admitting a video of Gordon during his cross-examination and erred or abused its discretion in finding that domestic violence occurred based on the evidence offered.
Jo Ann and Gordon live on adjoining properties with Gordon's residence behind Jo Ann's through a "holler." Gordon's residence is accessed from the road in front of Jo Ann's residence via a driveway that is next to Jo Ann's driveway. His mailbox is apparently in front of her house.
Gordon filed a lawsuit against Jo Ann and two of his sisters involving his ownership of the property on which he is currently living. In the property case, the circuit court issued a temporary restraining order (TRO) prohibiting Gordon from having any contact with the civil defendants, approaching within 500 feet of Jo Ann's house, or stopping while driving by her house.
This is our understanding from the testimony offered during the hearing and the parties' briefs. Our record does not contain any of the record from the property lawsuit. The attorneys representing the parties here are also representing them in that lawsuit and, therefore, are knowledgeable as to the contents of the temporary restraining order.
On April 18, 2018, Jo Ann requested an order of protection against Gordon. She alleged, "[Gordon] [t]hreatened to kill me and my daughters. He is driving slow in front of my house. Stalking and yelling." Jo Ann did not check the box for "child" in the section that related to domestic violence and, instead, checked the box relevant for those seeking an interpersonal protection order (IPO) for "stalking" and wrote in "son." The family court interpreted her request as one for an IPO pursuant to Kentucky Revised Statutes (KRS) 456.030(1)(b) rather than for a domestic violence order (DVO) against a family member pursuant to KRS 403.720(2), and granted her a temporary interpersonal protective order (TIPO).
Concurrently, three of Gordon's sisters also requested interpersonal orders of protection against him. Their petitions were heard at the same time as that of their mother. The family court denied and dismissed them for not presenting adequate proof of stalking. We do not discuss the denial of these petitions as they were not appealed. We do not discuss any evidence of Gordon's alleged acts against his sisters except as it is relevant to Jo Ann's petition.
Because Gordon was Jo Ann's child and she was seeking protection against stalking, she was eligible to seek protection through an interpersonal protective order or a domestic violence order.
On May 8, 2018, the family court heard testimony in support of Jo Ann's petition from Jo Ann and two of her daughters. Carol Jovenna Kiser (Jovenna) testified about an incident when she and her sister, Alicia Messer, were returning Jo Ann's vehicle to her home after it was repaired. Jovenna was driving Jo Ann's vehicle and Alicia was in her vehicle immediately behind Jo Ann's vehicle when Jovenna saw Gordon traveling extremely fast towards them on his motorcycle in their lane. Gordon swerved at the last second to avoid hitting them. Jovenna testified that Gordon would not have been able to tell who was driving their mother's vehicle when he did this.
Jovenna also testified to seeing Gordon sitting and staring through Jo Ann's picture window, where he could view the recliner in which Jo Ann typically sits, for five minutes when he stops to get his mail.
Jo Ann testified she feels threatened by Gordon and fears for her life based on the contents of a letter he wrote and his recent behavior of stopping and staring at her. In the letter, Gordon threatened he was going to put Jo Ann in a body bag. During cross-examination, it was established that Gordon sent Jo Ann the threatening letter before the TRO was issued in the property case.
Jo Ann testified when Gordon stops at his mailbox, rather than getting his mail and leaving, he stays there and stares at her. On more than two occasions, Gordon has gone to his mailbox before the mail arrives and stopped for over five minutes. Sometimes he pulls up in front of her picture window and stares when she is sitting in her recliner. Jo Ann testified when Gordon stops and stares, she is afraid he has a gun.
Alicia testified she has seen Gordon stop in front of Jo Ann's house and look in her window. Alicia also testified that sometimes Gordon will drive slowly past Jo Ann's house. Alicia also testified that, on one occasion, Gordon stopped in his driveway by Jo Ann's house and screamed at Alicia and her sisters. Alicia testified a video was recorded of the incident, which showed Gordon getting out of his truck and screaming at her and her sisters. The video was objected to and not admitted into evidence.
Alicia testified regarding the same incident as her sister Jovenna regarding their mother's car. Alicia testified when she and her sister Jovenna were picking up Jo Ann's car from the shop, with Jovenna driving Jo Ann's car and Alicia following, Gordon approached in their lane and swerved at the last minute and "he didn't know if it was mom" in Jo Ann's car.
At the conclusion of Jo Ann's case, Gordon asked for a directed verdict arguing that the fact that he stops and looks at Jo Ann is not a basis for a stalking case. He argued that after the threatening letter was sent to Jo Ann, she obtained a TRO in the property case which prohibited Gordon from approaching within five-hundred feet of Jo Ann's house and from stopping when driving by it. He argued the TRO was res judicata on Jo Ann's request for an IPO as Jo Ann had a hearing on stalking, which resulted in the TRO and has a forum in which to pursue a remedy for any violation.
No allegation was made either during the hearing or in the appellate briefs that Jo Ann has made any attempt to enforce the TRO.
The family court denied the request, explaining that a DVO has more consequences and better remedies if violated than available in a contempt action for violation of a TRO and persistent stopping and stalking could be a threat of domestic violence if proven.
During Gordon's proof, the Sheriff of Carter County and Gordon testified. The Sheriff testified Gordon tried to reach him during one episode in which his sisters called the police.
His name is not on record.
Gordon testified he must drive through the mouth of the "holler" by Jo Ann's house to get to his property. After his sisters allegedly burglarized his trailer, he admitted to making a phone call that if they ever did that again they were going to leave in body bags. He testified the last time he spoke to any of his sisters was before the lawsuit was filed. He explained he stops in view of Jo Ann's window to get the mail and does not drive either slow or fast around Jo Ann's house.
On cross-examination, Gordon was asked about the video his sister recorded. Gordon noted he objected to it and the family court did not admit it. The family court commented that the video might go to credibility and allowed Jo Ann to ask Gordon about it.
Gordon claimed he was not talking to anyone on the video but was either talking to himself or talking to his friend on his cell phone. Although the family court admitted the video, it is not contained in the record and seems to have been used exclusively to impeach Gordon's testimony that he had not talked to his sisters since the lawsuit was filed and had not stopped near Jo Ann's house.
After Gordon completed his case, the family court orally ruled that stalking leading to a threat of domestic violence had occurred, commenting that the video showing Gordon in front of Jo Ann's house and yelling had destroyed his credibility.
Following the hearing, the family court granted Jo Ann a DVO, finding that an act of domestic violence and abuse had occurred and may occur again. Gordon was ordered to stay 500 feet away from Jo Ann for three years, but allowed to "drive at normal, safe speed on the road passing [Jo Ann's] home to his home." Gordon was also ordered to have no firearms.
"Domestic violence and abuse" is defined as "physical injury, serious physical injury, stalking, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members[.]" KRS 403.720(1). "Family member" is defined as including "a child." KRS 403.720(2).
"Any family member . . . may file for and receive protection . . . from domestic violence and abuse[.]" KRS 403.750(1). "Following a hearing . . . if a court finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur, the court may issue a domestic violence order[.]" KRS 403.740(1). "Violation of the terms or conditions of an order of protection . . . shall constitute contempt of court and a criminal offense under this section. Once a criminal or contempt proceeding has been initiated, the other shall not be undertaken regardless of the outcome of the original proceeding." KRS 403.763(1). "Our review in this Court is not whether we would have decided the case differently, but rather whether the trial court's findings were clearly erroneous or an abuse of discretion." Gibson v. Campbell-Marletta, 503 S.W.3d 186, 190 (Ky.App. 2016).
Gordon's position that the family court erred in failing to grant him a directed verdict when the matter was either fully adjudicated or Jo Ann had elected another remedy, is not well taken. Although the DVO statute allows enforcement of a DVO after a violation to either a criminal or contempt proceeding, this has no effect on whether a DVO can be sought when there is already a TRO in a civil case. Additionally, the basis for granting the DVO was not the conduct which resulted in the TRO in the property case, the letter threatening to put Jo Ann in a body bag, but Gordon's subsequent conduct. The letter was relevant in giving context to why Gordon's subsequent actions made Jo Ann fearful. Additionally, the TRO in the property lawsuit and the DVO served different purposes. The purpose of the TRO was to maintain the status quo to help effect the orderly progression of the property case during the duration of that suit, while the DVO was to protect Jo Ann from domestic violence for a limited duration of time with potential criminal penalties for a violation.
Gordon's argument that the family court erred in admitting a video of Gordon during his cross-examination is without merit. In Commonwealth v. Prater, 324 S.W.3d 393, 400 (Ky. 2010), the Kentucky Supreme Court "[held] that the trial court has discretion to permit or deny impeachment by extrinsic evidence on a collateral issue raised by a party on direct examination." The Court reasoned, "[w]e believe the trial court is in the best position to decide whether the facts and circumstances of that case present a scenario in which the evil of allowing a party to offer voluntarily what may be knowingly false testimony with impunity outweighs the evil of having to devote trial time to impeachment on collateral matters." Id. Such discretion avoids giving a party a "license to lie" and prevents "condoning false testimony without consequences[.]" Id. at 399, 401. As Prater was applied in Brown v. Commonwealth, 416 S.W.3d 302, 311 (Ky. 2013), it is within the trial court's discretion to allow a party to show a video to impeach the defendant on a collateral matter where the defendant has opened the door to such issues by raising them during his direct testimony.
Under the circumstances, no abuse of discretion occurred where the family court allowed Gordon to be impeached through the admission of the video which directly contradicted his testimony on direct examination on the collateral matters that Gordon had not spoken to his sisters since the property lawsuit was filed and did not stop near his mother's house for any purpose other than getting his mail. It was of paramount importance for the family court to be able to make a determination as to whether Gordon or his sisters and mother were more credible, and the use of the extrinsic evidence helped the family court to determine credibility.
Gordon's final argument is that the family court erred or abused its discretion in finding that domestic violence occurred based on the evidence offered. We disagree.
Although the addition of the term "stalking" to the definition of domestic violence is a relatively recent development, even before stalking was a ground for domestic violence the same conduct that could constitute stalking could be a basis for committing domestic violence through causing fear of imminent physical injury. See Boone v. Boone, 501 S.W.3d 434, 440 (Ky.App. 2016).
While the statutes relating to domestic violence and abuse do not define "stalking," it is appropriate for us borrow the definition of "stalking" contained and applied in the similar IPO statutes. See Halloway v. Simmons, 532 S.W.3d 158, 162 (Ky.App. 2017); Calhoun v. Wood, 516 S.W.3d 357, 360-61 (Ky.App. 2017).
KRS 456.010(7) prohibits conduct which constitutes first and second-degree stalking under KRS 508.140 and KRS 508.150.
(1) A person is guilty of stalking in the second degree when he intentionally:
(a) Stalks another person; and
(b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
1. Sexual contact as defined in KRS 510.010;
KRS 508.150.2. Physical injury; or
3. Death.
(1) (a) To "stalk" means to engage in an intentional course of conduct:
1. Directed at a specific person or persons;
2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and
3. Which serves no legitimate purpose.
(c) The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress.
KRS 508.130.
(2) "Course of conduct" means a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose. . . .
To summarize, for an individual to be granted [a DVO] for stalking, he or she must at a minimum prove by a preponderance of the evidence that, an individual intentionally engaged in two or more acts directed at the victim that seriously alarmed, annoyed, intimidated, or harassed the victim, that served no legitimate purpose, and would have caused a reasonable person to suffer substantial mental distress, and that these acts may occur again. Additionally, the individual must prove that there was an implicit or explicit threat by the perpetrator that put the victim in reasonable fear of sexual contact, physical injury, or death.Halloway, 532 S.W.3d at 162 (internal citations omitted) (giving grounds for IPO for stalking).
The addition of stalking as a basis for domestic violence expands on what conduct can constitute domestic violence. Whereas before a victim would have to establish a fear of imminent physical injury, if the definition for stalking is satisfied domestic violence can occur from the victim being placed in reasonable fear of physical injury.
The evidence was sufficient to prove Gordon was stalking Jo Ann. His previous letter made her fear physical injury or death, and his conduct of stopping at the mailbox for a purpose other than collecting his mail and staring at Jo Ann through her front window on repeated occasions where he could see her sitting in her chair reasonably caused her substantial mental distress. The conduct of almost hitting Jo Ann's car by speeding toward it and swerving out of the way at the last instant was also intimidating behavior implicitly threatening injury or death to Jo Ann where Gordon would recognize her vehicle and could have believed she was in the vehicle.
Accordingly, we affirm Carter Family Court's domestic violence order.
ALL CONCUR. BRIEFS FOR APPELLANT: R. Stephen McGinnis
Greenup, Kentucky BRIEF FOR APPELLEE: Whitley Hill Bailey
W. Jeffrey Scott
Grayson, Kentucky