Guy Joseph Turcotte v. Brittany Elyzabeth Demars ( 2023 )

RENDERED: JULY 14, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0244-ME
GUY JOSEPH TURCOTTE APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
v. HONORABLE MICA WOOD PENCE, JUDGE
ACTION NO. 23-D-00022-001
B.E.D. APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Guy Joseph Turcotte has appealed from the one-year
Interpersonal Protective Order (IPO) entered on February 17, 2023, by the Barren
Family Court on behalf of B.E.D.1 We affirm.
1
Because this case involves an allegation of sexual assault, we shall use initials for the victim’s
name pursuant to Administrative Order 2006-10.
This matter began with the filing of a petition for an order of
protection on January 30, 2023. In her petition, B.E.D. stated that on January 28,
2023, Turcotte sexually assaulted her, and she provided the following details:
Mr. Turcotte came to my place of employment and asked
about grooming. I took him to the groom shop to get
prices and info to him. I mentioned his gun and asked if
he was a cop, he said yes, a detective. We talked a bit
about guns, how my employer doesn’t allow us to carry
so I carry pepper spray due to being so small, I’m easily
kidnapped. He made a comment about me being cute
and how he could see why someone would. He later
called and made an apt. for me to groom his dog. When
dropping off, he flirted and signed his dog in with, “♥ U
G.” This freaked me out some but I stayed professional,
groomed his dog and let him know it was ready for pick
up. At pick up, I went to fix his dog’s bandana [when] he
wrapped his arm around me, placed his hand firmly
below my panty line and held me tightly against him and
didn’t let go when I tried to pull away.
*Glasgow Police and State are investigating. Cap. Jones
suggested I file this if I felt it was needed.
Based upon this set of facts, B.E.D. alleged that Turcotte had sexually assaulted
her and therefore requested an IPO to restrain him from further acts or contact.
She also sought to restrain him from being within a specified distance of her home
and place of employment. The court issued a summons but did not issue an
emergency protection order because the petition did not include an allegation of an
ongoing risk of imminent harm.
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The court held the IPO hearing on February 8, 2023. Turcotte,
through counsel, disputed that B.E.D. had established that a sexual assault had
occurred pursuant to the applicable statutes. B.E.D. appeared without counsel; she
explained the chain of events leading to the filing of the petition, beginning with
Turcotte coming to the dog grooming business where she worked to ask about the
process and get pricing information. She admitted saying to him that she was
“easily kidnapped” because she was small (she is less than five feet tall, and she
carries pepper spray and multiple pocketknives because she is constantly worried
about being kidnapped.) But that did not mean Turcotte could respond by saying
that he could see why someone would want to kidnap her because she was “pretty
cute.” She tried to brush off his response, thinking that he did not know how oddly
it had come across to her. Turcotte called for an appointment and brought his dog
in two days later for B.E.D. to groom. He signed the documents with “♥ U G”
when he dropped the dog off, which she also thought was strange. When he
returned, he put his arm around her and placed his hand over her clothes in the area
of her underwear line, which she was not okay with, in front of two co-workers.
She did not know what to do and froze while he held her in a side hug against him
with his hand in the same place for five to seven seconds. When he let go of her,
she went back to where she had been and “shut down.”
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B.E.D. reported the incident and since then had been trying to go
about her life without worrying that he was going to show up. Because Turcotte
was a police officer, she knew he could easily access any information. Her two co-
workers had given statements to law enforcement, although they could not be in
court for the hearing due to personal and scheduling issues. She was disturbed by
the hugging incident because she did not know him. She did not think it was
appropriate for him to come into her place of employment and then flirt with her
and sign the document with “♥ U G.”
Turcotte called Randi Davidson to testify. She works at a local drug
store in the pharmacy, and she knew Turcotte as a customer, not personally. She
testified that he signed the receipts there with “♥ U” or “♥ U G” instead of a
signature. Turcotte had put his arm around her before, and she was not offended
by that. She had seen him interact with others in the store. He was very talkative
and charismatic, and she had seen him put his arm around others frequently. He
had made positive comments to her, but she did not construe that as flirting. He
would comment on the appearance of other women who worked in the store, such
as about their hair or makeup.
Turcotte testified next. He is a detective with the Glasgow Police
Department, and is 6’ tall. He did not know B.E.D. outside of the pet grooming
shop. He provided his version of the events. On January 25, he went to the
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groomer to get a sense of how much it would cost to have his dog groomed.
B.E.D. and another employee greeted him when he walked inside. He asked about
pricing, and B.E.D took him to the grooming area to get information about pricing.
As they were walking, B.E.D. was looking at his coat line where he carried his
handgun. She asked him if he was a cop, and he told her he was a detective. He
said that people sometimes told him he either looked like he was a cop or was in
the mob because he was Italian. She told him that she had a handgun that she
could not carry at work, so she carried mace, knives, and tasers. Because she could
not carry her handgun at work, she told him she was concerned about being
kidnapped because she was so small. He commented, “I can see why a cute little
thing like you would want to carry a handgun for protection.” Then they began
discussing the costs of dog grooming and his dog’s skin problems. He called to
make an appointment a couple of days later.
Turcotte took his dog to be groomed on Saturday the 28th, and he left
his dog with B.E.D. and another employee. When he returned, he looked through a
glass window and saw his dog on a table while B.E.D. was grooming on him. He
took a photo through the glass of his dog while she worked. He said he did not
want his dog to freak out when he saw him through the glass, so he took a photo to
send to his wife so she could see how good he looked. When he was inside the
room, Turcotte asked if he could take a photo of the dog’s bandana to send to his
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wife. Turcotte said B.E.D. did a great job grooming his dog and that he wanted to
express his gratitude. As he thanked her for her work, B.E.D. came out from
behind the counter. She stood by him and bent down to pet the dog. When she
stood up, he put his arm around her, just under her armpit, and kept his hand there
for the amount of time it took to say thank you. He said he thanked her a dozen
times. Then he signed the digital screen on the counter with “♥ U G” before he left
the room to pay. Turcotte testified that everyone was happy and that nothing was
said to make him think anyone was uncomfortable. B.E.D. had never shown any
type of concern, unease, or fear, and she was not upset when he took the
photograph. At 8:00 that night, police officers came to his house saying B.E.D.
reported that he had touched her inappropriately.
Turcotte said his normal digital signature is “♥ U” or “♥ U G” to
protect his identity as it had been stolen in the past. He said he frequently puts his
arms around women and men; this is his normal method of social interaction. He
knew when people were uncomfortable because they put their hands up or shied
away, or said, “please don’t get in my space.” And people had told him that they
did not want to be hugged. But they had verbally told him they were
uncomfortable; B.E.D. had not shown any indication that she was uncomfortable.
Turcotte attempted to introduce photographs of himself with his arm
around other women to show where he normally placed his hand. He disagreed
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with where B.E.D. said he placed his hand or that it was in an inappropriate
location, and he said the hug was to show his gratitude only and lasted less than
two seconds. The court did not permit the introduction of the photographs as they
were not relevant to this specific incident; just because he acted appropriately in
the tendered photographs did not mean he acted appropriately in this situation.
The court took the matter under submission as to whether a sexual
assault had occurred, noting that it would take into consideration the legal
arguments that Turcotte had submitted to the court that day.2 Pending a ruling, the
court ordered Turcotte not to have any contact or communication with B.E.D.
On February 17, 2023, the court entered a one-year IPO (not a three-
year IPO as B.E.D. had requested), thereby finding that Turcotte had sexually
assaulted B.E.D. and that it may occur again. The court included an attachment to
the AOC Form 275.3 in which it set forth its legal reasoning supporting the entry
of the IPO. This appeal now follows.
On appeal, Turcotte contends there was insufficient evidence to
support the family court’s findings that he had touched B.E.D. for sexual
gratification or that such touching may happen again. He also seeks review of the
family court’s decision not to admit three photographs as evidence of habit
pursuant to Kentucky Rules of Evidence (KRE) 406.
2
Turcotte’s legal memorandum is not included in the record on appeal.
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Our standard of review is set forth in Jones v. Jones, 617 S.W.3d 418,
423 (Ky. App. 2021):
A court may enter an IPO if it finds “by a
preponderance of the evidence that dating violence and
abuse, sexual assault, or stalking has occurred and may
again occur[.]” [Kentucky Revised Statutes (KRS)]
456.060(1). The preponderance of the evidence standard
is met when “sufficient evidence establishes the alleged
victim was more likely than not to have been a victim” of
dating violence and abuse, sexual assault, or stalking.
Dunn v. Thacker, 546 S.W.3d 576, 580 (Ky. App. 2018)
(citing Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App.
2007)) (applying the preponderance of the evidence
standard in the context of issuance of a domestic violence
order (“DVO”)).
“A [family] court’s findings of fact will only be
disturbed if clearly erroneous.” Halloway v. Simmons,
532 S.W.3d 158, 161 (Ky. App. 2017) (citations
omitted). Factual determinations are not clearly
erroneous if they are “supported by substantial
evidence.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003) (citation omitted). The test is not whether this
Court would have decided a case differently but whether
the family court’s decision was “unreasonable, unfair,
arbitrary or capricious.” Caudill v. Caudill, 318 S.W.3d
112, 115 (Ky. App. 2010) (citation omitted).
Furthermore, “[s]tatutory interpretation is a
question of law and this Court reviews it de novo.”
Artrip v. Noe, 311 S.W.3d 229, 231 (Ky. 2010) (citation
omitted).
In addition, the Jones Court instructed:
The family court, not the appellate court, is the
trier of fact and, as such, is responsible for judging the
credibility of witnesses.
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Regardless of conflicting evidence, the
weight of the evidence, or the fact that the
reviewing court would have reached a
contrary finding, due regard shall be given
to the opportunity of the [family] court to
judge the credibility of the witnesses
because judging the credibility of witnesses
and weighing evidence are tasks within the
exclusive province of the [family] court.
Moore, 110 S.W.3d at 354 (internal quotation marks and
citations omitted).
Jones, 617 S.W.3d at 424-25.
First, we hold that the family court’s findings of fact, which
culminated in its determination that B.E.D.’s testimony was factual as opposed to
Turcotte’s testimony, are supported by substantial evidence of record. The court
stated, in part, as follows:
8. Again, the Petitioner is 4’10” tall, and the
Respondent is at least 6’ tall. No matter which party’s
descriptions of the events is the truth, neither described
hand placement by Respondent on the Petitioner seems to
be a “natural” placement of Respondent’s hand on the
Petitioner as she was standing up. Even if the
Respondent’s description of these events leading up to
the “hug” was accurate, it seems to this Court that
Respondent would have more naturally and easily placed
his hand on the Respondent’s shoulder or back for this
“side hug”; but under no circumstances would such a
“hug” in any way result in Respondent’s hand being
placed on or near Petitioner’s upper thigh/groin area.
9. The Respondent, upon cross-examination by
the Petitioner, agreed that he at no point asked for
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permission to touch her. He testified that he is just
naturally a “touchy feely” person, and that people have
asked him in the past not to touch them or not to hug
them, but that Petitioner did not do either of those. It is
clear Respondent presumes he can hug anyone, even if
his familiarity with such person is based only upon a
brief professional encounter, and the Respondent places
the burden upon any recipient to stop him, as opposed to
seeking permission, even if the subject recipient is a
professional actively engaged in his/her course of
employment.
10. The Court is more inclined to believe the
Petitioner’s version of events. Petitioner has no
motivation to lie by accusing a local detective of sexual
assault, especially considering the fact that doing such
could create issues for herself within the community and
possibly at her employment. The Petitioner’s testimony
was consistent, and she expressed genuine fear of the
Respondent. It is clear that Petitioner’s fear is
heightened because, as a law enforcement officer, the
Respondent holds a position of trust and power within the
community, which also allows him to carry a firearm in
areas where she herself is not allowed to do so, such as
her place of employment. In the text that Petitioner sent
to her manager [name deleted] later that evening on
January 28th, entered as Defendant’s Exhibit #1, the
Petitioner expressed her fear that the Respondent would
“retaliate or harass” her, and told [her] that she had been
informed by police that the only “sure fire way” to
prevent that was for [her manager] to ban the Respondent
from the grooming shop. In the same text, the Petitioner
said to [her] that the incident had caused her to be “a
mess all day,” and that Petitioner “hoped” [she] was not
“angry” with her. Furthermore, even if the Respondent
really is just as “touchy feely” as he describes, with no
“sexual motivation,” the Court is not convinced that he
would even be able to recognize or accurately recount if
he acted inappropriately towards Petitioner and/or
violated her privacy. Accordingly, based on the totality
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of circumstances, the Court ultimately believes the
Petitioner’s testimony to be factual.
Turning to the issues raised in the appeal, we shall first consider
Turcotte’s argument that the family court should have admitted the exhibit
containing photographs of him with his arm around other women as evidence of
his habit of doing so as a social greeting. KRE 406 provides, “[e]vidence of the
habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to
prove that the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.” We review this ruling for abuse of
discretion. See Curry v. Bennett, 301 S.W.3d 502, 505 (Ky. 2009).
The photographs, which were attached to the brief, are of Turcotte
posing for a camera with his arm around different girls and women. Because these
are posed photographs, they are not evidence of how he greets an individual
socially, as Turcotte claims in his brief, and are irrelevant to determine how he was
acting in the current situation. Therefore, we find no abuse of discretion in the
court’s decision to exclude the photographs tendered in Exhibit 6.
We shall now consider the merits of Turcotte’s remaining arguments
as to whether there was sufficient evidence that he touched B.E.D. for sexual
gratification and that it may happen again. We have reviewed the attachment to
the IPO setting forth the family court’s analysis, and we conclude that the family
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court properly interpreted the statute in deciding that B.E.D. was entitled to an IPO
under the factual circumstances presented at the hearing and in her petition.
Therefore, we shall adopt the following portions of the court’s legal conclusions as
our own:
2. The specific facts and circumstances present in
this case seem to be a matter of first impression for
Kentucky Courts proceeding under and/or interpreting
KRS 456.060, and this Court has struggled with whether
this case satisfies several of the requirements under KRS
456.060. This determination requires the Court to
engage in distinct analyses of several different factors,
some of which includes the application of multiple rules
and/or interpretations, while also upholding the spirit and
purpose of Kentucky’s IPO statutes. Accordingly, in an
effort to clarify this Court’s analysis, the Court will
organize its analysis as follows: this Court will first
analyze whether Respondent committed or attempted to
commit sexual assault upon Petitioner, meaning did
Respondent touch or attempt to touch an “intimate part”
of Petitioner’s body, and was such touching or attempted
touching done for the purpose of gratifying either party’s
sexual desire; if so, the Court will then analyze whether
such sexual assault or attempted sexual assault may occur
again.
I. Sexual Assault
3. “Sexual assault,” as the phrase is used in KRS
456.060, refers to, among other things, the commission,
or attempted commission, of any conduct prohibited as
any degree of sexual abuse under KRS Chapter 510. See,
e.g., Rupard v. Wheeler, No. 2022-CA-0500-ME, 2022
WL 17365888, at *2 (Ky. Ct. App. Dec. 2, 2022). As
explained by the Kentucky Court of Appeals in Jones v.
Jones, 617 S.W.3d at 425, KRS 510.130, which is also
applicable in the present case, provides that a person is
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guilty of sexual abuse in the third degree when he or she
subjects another person, or attempts to subject another
person, “to sexual conduct without the latter’s consent.”
KRS 510.010(7) defines “sexual contact” as “any
touching of the sexual or other intimate parts of a person
done for the purpose of gratifying the sexual desire of
either party[.]”[3] The Respondent admitted that
Petitioner did not consent to Respondent touching her in
any way, so the Court must determine only whether there
was “sexual contact” in order to satisfy KRS 510.130.
a. Sexual Contact: “Intimate Part”
4. As established by the Supreme Court in Bills v.
Commonwealth, 851 S.W.2d 466, 472 (Ky. 1993), in
determining whether Petitioner’s upper thigh/groin area
is considered an “intimate part” of Petitioner’s body, the
Court must consider: (1) the area of the body where the
touching occurred; (2) the manner of touching; and (3)
the circumstances in which the touching occurred.
Neither this Court nor the Respondent’s counsel was able
3
This section has been amended by the General Assembly, and, as of June 29, 2023, subsection
(7) now provides:
“Sexual contact” means the touching of a person’s intimate parts or the touching
of the clothing or other material intended to cover the immediate area of a
person’s intimate parts, if that touching can be construed by a reasonable person
as being done:
(a) For the purpose of sexual arousal or gratification of either
party;
(b) For a sexual purpose; or
(c) In a sexual manner for the purpose of:
1. Exacting revenge or retribution;
2. Humiliating or degrading; or
3. Punishment;
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to find a case involving an IPO in circumstances
substantially similar to the ones at bar.
5. In Rupard v. Wheeler, 2022 WL 17365888, at
*3, the Kentucky Court of Appeals affirmed the entry of
an IPO based on an incident when the respondent showed
up to the petitioner’s house, uninvited, and expressed his
interest in cheating on his wife with the petitioner right
before “he ‘forced [his hand] between [the petitioner’s]
legs[,]’ rubbed his foot ‘up and down [her] leg[,]’ . . .
‘push[ed] up against [her] breasts with his hand,
intentionally[,]’ and ‘grabbed [her] hand and the back of
[her] shirt to try to pull [her] down on the couch[,]’” all
in the presence of the petitioner’s child. See also Bills,
851 S.W.2d at 472 (explaining that, in most
circumstances, the sexual organs would be considered an
“intimate part,” even if touched over the clothes of the
victim, and that the leg would also be considered to be an
“intimate part” of the body, assuming the other two
factors are satisfied); Johnson v. Commonwealth, 864
S.W.2d 266, 277 (Ky. 1993) (finding that the “thighs”
could be considered an “intimate part” of the body). The
Rupard Court explained that it had no issue finding the
presence of demonstrable danger because the defendant
“engaged in the conduct underlying the IPO despite [the
petitioner’s] expressed and implied rejection of his
advances and in the presence of a witness, [the
petitioner’s] daughter, which evinces a disregard for the
consequences.” 2022 WL 17365888, at *3.
6. Similarly, in Jones v. Jones, 617 S.W.3d at 426,
the Court of Appeals affirmed entry of an IPO based on
an incident when the respondent, who was the
petitioner’s former brother-in-law, sent several
suggestive texts to the petitioner indicating that he
wished to pursue a sexual relationship with her, even if it
was against her will, then showed up at the petitioner’s
residence and “aggressively grabbed [her] in a ‘bear
hug,’ pressing the front of his body against her back with
his arms pressing against the undersides of her breasts.”
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The Jones court, without much discussion of the factors
relevant to determining what constitutes an “intimate
part,” distinguished the facts present therein from those
present in Castle v. Castle, 567 S.W.3d 908 (Ky. App.
2019). In Castle, the Kentucky Court of Appeals
reversed a trial court’s entry of an EPO [Emergency
Protective Order], emphasizing the short time period
between when the respondent began sending the
suggestive texts and when the incident underlying the
claim of sexual assault occurred. 617 S.W.3d at 426
(“[U]nlike the six-month lapse in Castle, the entire
incident, including [the defendant’s] earlier text
messages, occurred over a period of less than twenty-four
hours.”).
7. The Court does not dispute that the manner of
the Respondent’s touching of the Petitioner’s thigh/groin
area here is different than the manner in which the victim
was touched in Rupard, and unlike in Jones, Respondent
herein did not make any outright statement that indicated
he desired to engage in sexual intercourse with Petitioner,
forced or otherwise. However, similar to the facts
present in Rupard, the Respondent herein placed his hand
on Petitioner’s upper thigh/groin area and held his body
against Petitioner’s for approximately five (5) seconds in
the presence of at least one other . . . employee, without
Petitioner’s permission, and in apparent disregard for the
consequences. 2022 WL 17365888, at *3.
8. Furthermore, similar to some of the facts
present in Jones, the Respondent here “hugged” the
Petitioner by placing his hand on her upper thigh/groin
area and held his body against her for approximately five
(5) seconds during an undisputed embrace that the
Responded described as a “side hug.” This occurred just
a couple of hours after he checked his dog in with the
Petitioner and signed the receipt with a “♥ U G”, and just
two days after he: (1) stated to the Petitioner that she
was cute; (2) indicated that he could understand why
someone would want to kidnap or target her; and (3)
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otherwise made facial expressions and/or employed body
language that suggested to Petitioner that he was flirting
with her. While these facts are certainly not as egregious
or as overtly threatening as the facts present in Jones,
mostly because the Respondent here did not make any
overt statement indicating that he might rape the
Petitioner and/or attempt to move the Petitioner to a more
secluded location, we emphasize that the Respondent
began flirting with the Petitioner mere minutes after the
Respondent first met the Petitioner at her place of
employment, and the claimed incident of sexual assault
occurred only two (2) days after the Petitioner first met
the Respondent, all while the Respondent was providing
a professional service to the Respondent.
9. Accordingly, as the Respondent, who is a
public employee whose duty it is to protect individuals
such as the Petitioner, nonetheless had the audacity to so
quickly escalate his advances towards Petitioner, in a
professional setting at the Petitioner’s public place of
employment, we believe that the three . . . Bills factors
discussed above support a finding that the Respondent
touched an intimate part of the Petitioner’s body without
her consent.
b. Sexual Contact: Done for the Purpose of
Gratifying Sexual Desire
10. Having determined that the Respondent
touched an “intimate part” of the Petitioner’s body, the
Court must now consider whether such touching was
done for the purpose of “gratifying the sexual desire of
either party[.]” Jones, 617 S.W.3d at 426.
11. In Castle v. Castle, 567 S.W.3d at 919, the
Kentucky Court of Appeals found that the record did not
support a finding of sexual abuse where a stepfather
either “‘grabbed’ or ‘barely brushed by’” his
stepdaughter’s breast because there was no evidence the
act was for his sexual gratification. The Court of
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Appeals distinguished the facts in Edmonson v.
Commonwealth, 526 S.W.3d 78, 87 (Ky. 2017),4 from
those present in Castle:
First, it was a criminal jury trial – not the
grant of a DVO [Domestic Violence Order].
Second, the Supreme Court [in Edmonson]
stated, “[i]ntent can be inferred[.]” We
agree, but there must be proof from which to
draw the inference. Third, all the alleged
activity in Edmondson occurred on the same
night, in the same location and with
repetition. In this case, two events were
separated by six months and only one had an
alleged touching. In describing the night of
the uncomfortable conversation which
prompted [the] petition for a DVO six days
later, O.H. said there was no touching and
no attempted touching.
Castle, 567 S.W.3d at 918.
12. In the present case, this Court finds sufficient
evidence to infer that Respondent touched an intimate
part of the Petitioner’s body for the purposes of sexual
gratification. Similar to the challenged touching in
Edmonson, the Respondent’s touching of Petitioner
occurred in the same location and shortly after
Respondent engaged in two separate incidents of flirting
with the Petitioner, during which the Respondent stated
that he thought the Petitioner was “cute.” Furthermore,
unlike in Castle, the Respondent did not claim that he did
not mean to touch the Petitioner, only that he touched her
in a different spot than claimed by the Petitioner.
4
“Inferring, in a criminal trial, a purpose of sexual gratification in a case where, at a youth
center, the defendant offered a minor girl $1.00 for each goal she scored, and the child made four
goals, after each of which the defendant paid her $1.00 and grabbed her buttocks, and then the
defendant grabbed her buttocks a fifth time while saying goodbye at the end of the night.”
(footnote 13 in original).
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II. May Sexual Assault Occur Again
13. Having found that sexual assault occurred, the
Court must now consider whether it may occur again.
This is the analysis with which the Court struggled the
most, as the Petitioner pursuing this action will likely
decrease the chances this would occur again. Kentucky
case law concerning IPOs and this element in particular
is, at best, scant, and the case law that is available does
not provide a clear directive as to whether this element
could be satisfied in circumstances such as those present
in this case. However, this Court ultimately believes that
the Respondent acted highly inappropriately during the
January 28th incident, and that, if an IPO is not entered,
it is more likely than not that the Respondent will engage
in similar conduct again. The Respondent himself
testified that he had people ask him not to touch them and
has nonetheless continued to touch people without
permission or even implied consent, even coming out of
the COVID-19 era of physical distance.
14. The Court also emphasizes the legislative
purpose of the IPO statutes, as provided in KRS 456.020:
(1) This chapter shall be interpreted to:
(a) Allow 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;
(b) Expand the ability of law
enforcement officers to
effectively respond to further
wrongful conduct so as to
prevent future incidents and to
provide assistance to the
victims;
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(c) Provide peace officers with
the authority to immediately
apprehend and charge for
violation of an order of
protection any person whom
the officer has probable cause
to believe has violated an order
of protection and to provide
courts with the authority to
conduct contempt of court
proceedings for these
violations[.]
15. This Court believes that not entering an IPO in
this case would not be serving the legislative purpose of
KRS 456.060(1), as expressed in KRS 456.020. Entering
an IPO against the Respondent here would allow the
Petitioner to obtain “effective, short-term protection
against further wrongful conduct” by the Respondent so
that her life may be “as secure and as uninterrupted as
possible.” Denying Petitioner an IPO would mean that
the Respondent, of whom Petitioner has demonstrated
she has real fear, would be able to enter her place of
employment at any time, and possibly sexually assault
her again. Furthermore, Respondent’s employment as a
law enforcement officer means that he may have more
access to information about the Petitioner, and additional
ways of retaliation against her, available to him, with
immediate protection against Respondent acting upon
same without the protection of an IPO. The Court also
notes that several of the legislative purposes expressed in
KRS 456.020 intend to give law enforcement officers the
ability to provide further protections to people such as the
Petitioner, which is ironic considering one such officer is
whom Petitioner is requesting protection from.
We find no error in the family court’s conclusion that a sexual assault
had occurred and may occur again, entitling B.E.D. to an IPO. We note that the
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court opted to make the IPO effective for one year rather than the three-year period
B.E.D. had requested, which was in Turcotte’s favor. In addition, the statement in
Turcotte’s brief regarding B.E.D.’s state of mind in relation to her fear of being
kidnapped is inappropriate and not well-taken.
For the foregoing reasons, the one-year IPO entered by the Barren
Family Court is affirmed.
EASTON, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JONES, JUDGE, DISSENTING: Respectfully, I dissent. I do not believe
sufficient evidence existed upon which the trial court could conclude that the
touching in this case was done for the purpose of sexual gratification. Having
authored the dissenting opinion in Castle v. Castle, 567 S.W.3d 908 (Ky. App.
2019), which the trial court cited, I am well aware of the facts of that case and the
authorities discussed therein.
In Castle, the lower court granted a DVO where the accused’s
stepdaughter testified that she was riding alone in a car with her stepfather at night
when he began asking her questions about what kind of bra she was wearing and
then reached over and “grabbed her boob.” Several months later he tried to engage
the teenage girl in a sexually charged conversation and indicated a desire to see
and touch her breast. This Court reversed the trial court, concluding, in part, that
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the trial court acted erroneously in granting the order of protection because there
was no evidence that the touching was for sexual gratification. Importantly, the
majority reversed even though the trial court had accepted the girl’s testimony that
her stepfather grabbed her boob while riding in the car alone with her. I dissented
because I believed the evidence overall demonstrated that the stepfather had
grabbed the teenager’s breast for the purpose of sexual gratification and that the
conduct was continued over a period of time, giving credence to her fear that it
might repeat itself.
Like the trial court in Castle, the trial court here accepted the
Appellee’s version of events. However, the facts in this case are even less
suggestive of the Appellant having acted out of sexual gratification than they were
in Castle. The alleged victim in Castle was a minor, the parties were alone in a car
at night, the stepfather asked an inappropriate question about the teenager’s bra,
and then the stepfather grabbed the girl’s breast. Here, the Appellee is an adult, the
conduct took place in a public place in front of others, and the conversation was
not on its face inappropriate. Additionally, the stepfather in Castle engaged in
subsequent conduct, attempting to have a very sexually charged conversation with
the girl when the two were alone several months later, causing the girl to believe
that he might attempt further sexual advances in the future.
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Likewise, we recently held that the trial court did not err in granting
an IPO where the accused “bear hugged” his sister-in-law pressing the front of his
body against her back and placing his hands underneath her breasts. Jones v.
Jones, 617 S.W.3d 418, 427 (Ky. App. 2021). The difference in Jones, however, is
that the hugging was accompanied by outwardly sexual comments and an attempt
to get the sister-in-law to go into a bedroom with him immediately after the hug.
The Appellant here did not make outwardly sexual comments to the Appellee, and
by all accounts he left the store after hugging her.
While I respect the great discretion afforded to the trial court in
weighing the evidence, I find it impossible to reconcile the facts of this case with
Castle, a published opinion that is binding on this Court. And while I dissented in
Castle, the facts that compelled me to do so in that case are not present in this case.
Even taking every word the Appellee testified to as true, I do not believe there was
sufficient evidence to demonstrate that the Appellant’s actions toward her were
done for the purpose of sexual gratification. This is not to say that they were
appropriate; however, not all unwanted touching rises to the level of touching
undertaken to sexually gratify oneself or the other party. There is certainly a
difference between socially unacceptable behavior and sexually unacceptable
behavior. While this may have been the former, I do not believe the evidence
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supported the trial court’s conclusion that it was the latter. For these reasons, I
would reverse.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Benjamin D. Rogers Sam Lowe
Glasgow, Kentucky Bowling Green, Kentucky
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