Brian Strong v. Krystalanne N. Gary ( 2023 )

RENDERED: JULY 28, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0219-ME
BRIAN STRONG APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE THOMAS A. RAUF, JUDGE
ACTION NO. 18-D-00426-003
KRYSTALANNE N. GARY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
KAREM, JUDGE: Brian Strong appeals from the Kenton Circuit Court’s order
denying his petition for an Interpersonal Protection Order (“IPO”) under Kentucky
Revised Statute (“KRS”) Chapter 456. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2022, Strong filed a petition for an IPO against
Krystalanne Gary. In the petition, Strong alleged that Gary had come to his
residence uninvited and had thrown a brick into his window, breaking the window.
In the petition, Strong indicated that he “would like relief of harassment and
stalking and property damage.”
The circuit court held a hearing on Strong’s petition on January 18,
2023. Strong was present at the hearing with counsel, but Gary was not.
Unfortunately, this Court has not been provided with either a recorded copy or
transcript of the hearing. We are required to assume missing portions of a record
support the decision of the trial court. Smith v. Smith, 450 S.W.3d 729, 732 (Ky.
App. 2014).
After the hearing, the circuit court entered its findings of fact,
conclusions of law, and order on February 3, 2023. The court made the following
findings:
1. [Strong] filed a Petition for an [IPO] on December 27, 2022.
2. [Strong] stated that he and [Gary] were friends in the past.
3. On December 18, 2022, [Gary] came to [Strong’s] residence.
[Strong] states that he had been experiencing a family crisis and
did not wish to speak with [Gary]. [Gary] then left the residence.
4. At some point on December 18, 2022, [Gary] returned to
[Strong’s] residence at which time [Strong] states that she threw a
brick through his window, breaking the window in the process.
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5. [Strong] called the police. The police arrived and assessed the
situation. Approximately 30 minutes later, [Gary] returned to the
residence at which time the police arrested her.
6. [Strong] states that a “couple days” after the incident in which
[Gary] threw the brick, she returned to his residence, knocking on
his door.
7. [Strong] indicates that if he is not granted protection, he thinks
[Gary] will continue returning to his residence.
The circuit court ultimately dismissed Strong’s petition, finding that
he had not proven by a preponderance of the evidence that Gary’s acts rose to the
level of stalking under Kentucky law. This appeal followed.
ANALYSIS
As a preliminary matter, we note that Gary did not file an appellee
brief. As stated in Kentucky Rule of Appellate Procedure (“RAP”) 31(H)(3):
If the appellee’s brief has not been filed within the time
allowed, the court may: (a) accept the appellant’s
statement of the facts and issues as correct; (b) reverse
the judgment if appellant’s brief reasonably appears to
sustain such action; or (c) regard the appellee’s failure as
a confession of error and reverse the judgment without
considering the merits of the case.
See also former Kentucky Rule of Civil Procedure (“CR”) 76.12(8)(c)
(substantially similar to RAP 31(H)(3), which took effect on January 1, 2023).
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However, this Court also has the discretion to decline to exercise any of the options
listed in RAP 31(H)(3). See Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App.
2007) (declining options in CR 76.12(8)(c)).
In this case, we do not specifically elect any of the options provided in
RAP 31(H)(3).
a. Standard of Review
We review the circuit court’s findings of fact for clear error. Gomez
v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008) (domestic violence (“DVO”)
appeal). See also Smith v. Doe, 627 S.W.3d 903, 908 (Ky. 2021) (noting statutes
governing IPO and DVO proceedings are interpreted similarly). Findings are not
clearly erroneous if they “are supported by substantial evidence.” Moore v. Asente,
110 S.W.3d 336, 354 (Ky. 2003) (citation omitted). In our review of an IPO, “the
test is not whether we would have decided it differently, but whether the findings
of the trial judge were clearly erroneous or that he abused his discretion.” Cherry
v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted). “Abuse of
discretion occurs when a court’s decision is unreasonable, unfair, arbitrary or
capricious.” Castle v. Castle, 567 S.W.3d 908, 915 (Ky. App. 2019) (citation
omitted).
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b. Discussion
Entry of an IPO is proper if, following a hearing, “a court finds by a
preponderance of the evidence that dating violence and abuse, sexual assault, or
stalking has occurred and may again occur[.]” KRS 456.060(1). Evidence meets
the preponderance of the evidence standard “when sufficient evidence establishes
that the alleged victim was more likely than not” a victim of dating violence and
abuse, sexual assault, or stalking. Gomez, 254 S.W.3d at 842 (internal quotation
marks and citation omitted).
Kentucky’s relevant stalking statute states that:
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;
2. Physical injury; or
3. Death.
KRS 508.150(1).
Moreover, the term “stalk” as used in the foregoing statute is defined
as follows:
(1)(a) To “stalk” means to engage in an intentional
course of conduct:
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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.
(b) The course of conduct shall be that which would
cause a reasonable person to suffer substantial mental
distress.
(2) “Course of conduct” means a pattern of conduct
composed of two (2) or more acts, evidencing a
continuity of purpose. . . .
KRS 508.130.
Thus, Strong was required to prove by a preponderance of the
evidence that Gary (1) intentionally threatened Strong, either explicitly or
implicitly, so as to place him in fear of sexual contact, serious injury, or death, and
(2) that she intentionally stalked him, i.e., that she engaged in a course of two or
more harassing, annoying, alarming, or intimidating acts directed toward him with
(a) no legitimate purpose and which both (b) would have caused a reasonable
person in Strong’s position substantial mental distress and (c) did in fact cause
Strong substantial distress.
In this case, the circuit court’s finding that Gary’s conduct did not
meet the stalking definition is not clearly erroneous or an abuse of its discretion.
As previously discussed, Strong was required to prove two separate instances of
stalking by a preponderance of the evidence. See KRS 508.130(2). However, the
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only proof that Strong provided about the second alleged stalking incident was that
Gary knocked on his door a few days later. Strong offered no proof that Gary did
so with the intent to threaten him or that such action would cause a reasonable
person to suffer substantial emotional distress. Additionally, we can find no
evidence in the record that Strong subjectively suffered emotional distress. Thus,
the statutory elements of “stalking” under Kentucky law were not satisfied.
CONCLUSION
For the foregoing reasons, we affirm the Kenton Circuit Court’s order.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.
Robert Gary Defusco
Covington, Kentucky
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