RENDERED: OCTOBER 6, 2023; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0267-ME
BRYAN SCOTT ALLEN APPELLANT
APPEAL FROM KENTON FAMILY COURT v. HONORABLE TERRI K. SCHOBORG, JUDGE ACTION NO. 22-D-00534-001
VALERIE SUE EDER APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND ECKERLE, JUDGES.
COMBS, JUDGE: Appellant, Bryan Scott Allen (Allen), appeals from an
interpersonal protection order (IPO) entered on behalf of Appellee, Valerie Sue
Eder (Eder), by the Kenton Family Court. There was substantial evidence to
support the family court’s finding that Allen stalked Eder, and after our review, we conclude that there was substantial evidence to support a finding that his behavior
amounted to an implicit threat. Therefore, we affirm the granting of the IPO.
On December 28, 2022, Eder filed a petition for an IPO against Allen.
Based on the allegations in the petition, the family court granted a temporary IPO.
Following a continuance, the family court conducted hearings on the petition on
February 1 and February 9, 2023. The parties do not significantly disagree on the
testimony presented at the hearings.
Eder and Allen were involved in a dating relationship from August
2021 until late July 2022. During this time, Allen was employed as the Chief of
the Villa Hills Police Department. Following a vacation to Europe in July 2022,
Eder informed Allen that she wanted to end the dating relationship. At Eder’s
request, they met twice to discuss her decision.
The first meeting took place on July 22 in the parking lot of St. Pius
Church. While the meeting was generally amicable, it ended with Allen’s telling
Eder, “I will be highly offended if you change your passcode.” Eder thought that
this revelation was an odd thing for Allen to say. Consequently, she changed the
passcode to her garage as well as the locks to her front and garage doors.
Their next meeting took place on August 21 at a Starbucks. The
meeting had been arranged by a common friend, Lauren Anderson, who had
-2- frequent contact with Allen at work. Eder again told Allen that the relationship
had ended, and she told him that he should move on to someone or something else.
On September 26, Eder attended a soccer game in which her daughter
was playing at Scott High School. Allen arrived alone and sat in the bleachers in a
vantage point where he could watch Eder. However, Allen did not speak to Eder at
that time. Allen left the game at the same time as Eder. He remained in the
parking lot and attempted to text her. Eder did not respond to the messages. She
testified that she did not recall Allen’s ever attending any of her daughter’s soccer
games while they were dating.
In October, Allen sent flowers to Eder’s home with a card that said,
Val, I have missed you and will always. There has been a hole in my heart since we separated. I miss you and always will. I wanted to give these to you because I knew they made you smile, and I loved your smile. I will always love you. I wish you well in everything you do.
Eder blocked Allen’s number from her phone after receiving the flowers.
On December 14, Eder received three text messages from an unknown
number. The text sent to Eder’s phone at 9:10 p.m. stated, “I saw you all sitting in
the living room this evening looked nice [sic]. I see you seeing a Dave Gooch and
he has spent a lot of nights there.” Eder responded with “?.” Almost immediately
thereafter, Eder received another message from that same number saying, “Your
house Dave spent the night last Friday.” Then another message was sent saying,
-3- “you were sitting on your couch tonight.” Eder was concerned about the messages
and suspected that Allen had sent them.
She contacted the Kentucky State Police about the contacts. Detective
Joseph Filiatreau investigated the incident. During the investigation, Detective
Filiatreau discovered that the unknown phone number was associated with Allen’s
daughter. Upon questioning by Detective Filiatreau, Allen admitted that he had
used his daughter’s phone to text Eder.
Allen also told Detective Filiatreau that he saw Eder and a man in a
car pulling out of Eder’s church. Allen wrote down the license plate number and
asked another police officer to run the plate and identify the owner of the vehicle.
That officer informed Allen that the vehicle was registered to David Gooch.
Detective Filiatreau testified that he believed that Allen’s actions were an improper
use of his police authority and that they constituted the offense of second-degree
official misconduct. Detective Filiatreau also testified that based on the content of
the text messages, Eder could reasonably believe that Allen had been watching her
on the night of December 14. However, he noted that Allen never made an
implicit or explicit threat against Eder. Eder testified that after Detective Filiatreau
informed her of Allen’s actions, she became very concerned for her safety.
Following the second day of the hearing, the family court entered an
IPO against Allen restraining him from any contact with Eder for a period of three
-4- years. In its written findings of fact and conclusions of law entered on February
16, 2023, the family court found that Allen’s actions met the definition of stalking
under KRS1 508.130. The Court further concluded that his actions amounted to an
explicit or implicit threat with the intent to place Eder in reasonable fear.
Allen now appeals from the IPO. Additional facts will be set forth
below as necessary.
As an appellate court, we review a family court’s issuance of an IPO
to determine “whether the court’s findings were clearly erroneous or . . . it abused
its discretion.” Holt v. Holt, 458 S.W.3d 806, 812 (Ky. App. 2015). In making
this determination, we must be mindful of the family court’s opportunity to assess
the credibility of the witnesses. CR2 52.01. Abuse of discretion occurs when a
trial court’s decision is “unreasonable, unfair, arbitrary or capricious.” Sewell v.
Sweet, 637 S.W.3d 330, 334 (Ky. App. 2021) (quoting Castle v. Castle, 567
S.W.3d 908, 915 (Ky. App. 2019)). More specifically, a court abuses the
discretion afforded it when “(1) its decision rests on an error of law . . . or a clearly
erroneous factual finding, or (2) its decision . . . cannot be located within the range
of permissible decisions.” Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky.
1 Kentucky Revised Statutes. 2 Kentucky Rules of Civil Procedure.
-5- 2004) (revised). See also Buddenberg v. Buddenberg, 304 S.W.3d 717, 720 (Ky.
App. 2010).
An IPO allows a victim of dating violence and abuse, a victim of
stalking or sexual assault (regardless of the presence of a past or current dating
relationship), or an adult on behalf of a minor victim to petition for protection
against a perpetrator. Halloway v. Simmons, 532 S.W.3d 158, 161 (Ky. App.
2017) (citing KRS 456.030(1)). If the trial court “finds by a preponderance of the
evidence that dating violence and abuse, sexual assault, or stalking has occurred
and may again occur, the court may issue an interpersonal protective order[.]”
KRS 456.060(1) (emphasis added).
Under KRS 456.010(8), “‘[s]talking’ refers to conduct prohibited as
stalking under KRS 508.140 or 508.150[.]” Stalking in the second degree, KRS
508.150(1), occurs when an individual 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 508.130(1) defines stalking as meaning:
(a) [T]o engage in an intentional course of conduct:
-6- 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.
“Course of conduct” means “a pattern of conduct composed of two (2)
or more acts, evidencing a continuity of purpose.” KRS 508.130(2).
To summarize, for an individual to be granted an IPO 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. KRS 508.130 and KRS 456.060. 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. KRS 508.150.
Halloway, 532 S.W.3d at 162.
In this case, Eder established that Allen’s conduct amounted to
stalking as defined in KRS 508.130. The initial two meetings, on July 22 and
August 21, were clearly consensual. However, Eder unambiguously told Allen
that their relationship was over and that she wanted no further contact with him.
Nevertheless, Allen showed up at the soccer game on September 26 -- even though
-7- he had never previously attended such games. Moreover, he positioned himself to
watch Eder during the game. He also followed Eder to the parking lot and
attempted to contact her when she left.
In October, Eder sent flowers and a note to Allen’s house. In
December, he followed a vehicle in which Eder was a passenger and used his
connections as a police officer to obtain the driver’s name and registration. And
most significantly, on December 14, he anonymously texted Eder three times,
indicating that he had been watching her house and knew with whom she was
associating.
Allen contends that there was no evidence that this contact amounted
to stalking because Eder was not aware of his involvement in the December 14
contacts until Detective Filiatreau so informed her sometime later. But his furtive
texts were clearly intended to convey the message to Eder that she was being
watched. The family court rejected Allen’s explanations of this incident and the
September and October contacts. The family court also noted that the December
14 texts strongly indicated that Allen had watched her house on more than one
occasion. Finally, the family court was persuaded by Eder’s testimony that she
was concerned by these contacts. And even though Eder did not know with
certainty that Allen was responsible for the December 14 incident, she suspected
him strongly enough to contact the Kentucky State Police.
-8- Contrary to Allen’s argument, the statutory definition of stalking does
not require that the victim be placed in immediate fear. Rather, the definition
merely requires a showing that: (1) Allen intentionally engaged in two or more
acts directed at Eder; (2) he seriously alarmed, annoyed, intimidated, or harassed
her; (3) his behavior served no legitimate purpose; (4) the acts would have caused
a reasonable person to suffer substantial, mental distress; and (5) that these actions
may occur again. Although the evidence was conflicting, we conclude there was
substantial evidence to support each of these elements.
The more difficult question is whether there was sufficient evidence to
prove that Allen made an explicit or implicit threat to put Eder in reasonable fear
of sexual contact, physical injury, or death as required by KRS 508.150(1)(b). The
family court found that Allen’s actions amounted to an implicit threat, stating:
The act of communicating with Eder to inform her that he was actively watching her home and monitoring her activities and demonstrating he had the capability of using his authority as a police officer to obtain information as to her associations was an implicit threat that caused Eder to fear for her safety.
We agree with the family court’s assessment.
As found by the family court, Allen’s actions caused Eder significant
alarm and annoyance. His actions could be reasonably construed as harassing and
intimidating, and they are certainly troubling. Eder was justifiably afraid because
she did not know what Allen might do next. Indeed, she noted that Allen
-9- continued to engage in this conduct despite the risk to his own position as police
chief. Eder did not identify any prior words or conduct by Allen that would
indicate he may resort to violence. Nonetheless, Allen’s stalking actions were
deeply disturbing, and he clearly abused his authority as a police officer in order to
further his personal interests.
Although it can be argued that this case presents a rather close call in
the murky struggle to define implicit, the facts were ably and meticulously set forth
by the trial court in its carefully crafted order. Its findings were clear, concrete,
and specific. Again, as noted earlier, our task on review is governed by the
standard set forth in Holt, 458 S.W.3d at 812; i.e., we must determine “whether the
court’s findings were clearly erroneous or . . . it abused its discretion.” There is no
scintilla of error on either ground. The findings of fact were explicit and
substantial, and the court acted correctly within its considerable range of
discretion.
Therefore, the legal analysis as applied to those facts is our primary
focus. There is no question that Allen’s menacing and relentless pattern of conduct
met -- and indeed exceeded -- the elements of the stalking statute, KRS
508.130. The only question is whether his behavior constituted an explicit or an
implicit threat to Eder. The trial court found that the existence of an implicit threat
was a reasonable conclusion under the circumstances as it stated at the beginning
-10- of its order: “the Court found that by the nature of the conduct there was an
implicit threat of physical injury or sexual contact.”
Implicit is defined3 as “capable of being understood from something
else though unexpressed . . . ; involved in the nature or essence of something
though not revealed, expressed, or developed . . . .” We cannot agree that it was
unreasonable or arbitrary for the trial court to conclude that Eder had a legitimate
basis to fear that she faced a realistic threat of the escalation of Allen’s behavior
into unwanted sexual contact from him. As the trial court noted in its findings,
they had been involved in an intimate dating relationship. He was blatantly
persistent in surveilling her house and her activities -- particularly with respect to
her new companion. As noted previously, he did not hesitate to abuse his position
as a police officer in order to obtain intimidating information about her. He did not
have to brandish a weapon for her to conclude that he posed a clear and ongoing
danger to her. The statute wisely anticipates such nuances in conduct by defining
the forbidden behavior to be either explicit or implicit.
In analyzing Allen’s conduct and Eder’s reaction to it, the trial court
had the unique opportunity to assess their credibility. In so doing, it concluded as
follows:
The act of communicating with Eder to inform her that he was actively watching her home and monitoring her
3 Implicit, WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (9th ed. 1985).
-11- activities and demonstrating he had the capability of using his authority as a police officer to obtain information as to her associations was an implicit threat that caused Eder fear to her safety. A reasonable person would fear for their safety under the same circumstances.
The purpose of an IPO is to protect one who is already a victim from
being victimized further as a result of conduct that already points to a dangerous
propensity on the part of a perpetrator. Our appellate role does not permit us to
substitute our judgment for that of the trial court -- especially in such a serious set
of circumstances.
Therefore, we affirm the order of the Kenton Family Court entering an
IPO.
DIXON, JUDGE, CONCURS.
ECKERLE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
ECKERLE, JUDGE, DISSENTING: Our General Assembly created interpersonal
protective orders (IPOs) to protect victims of dating violence who would not
otherwise be entitled to a traditional Domestic Violence Order (DVO). See
Halloway v. Simmons, 532 S.W.3d 158, 161 (Ky. App. 2017) (citing KRS
456.030(1)). If the Trial Court “finds by a preponderance of the evidence that
dating violence and abuse, sexual assault, or stalking has occurred and may again
occur, the court may issue an interpersonal protective order[.]” KRS 456.060(1).
-12- Under KRS 456.010(8), “‘[s]talking’ refers to conduct prohibited as
stalking under KRS 508.140 or 508.150.” Stalking in the second degree, KRS
508.150(1), requires that an individual intentionally,
(b) Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
To grant an IPO, KRS 456.060(1) requires that the elements of
stalking be proven by a preponderance of the evidence, rather than beyond
reasonable doubt, as required for a criminal conviction. Nevertheless, when an
IPO is granted based upon stalking, there must be substantial evidence supporting
all of the elements under KRS 508.150(1). I fully agree with the majority that
Allen’s conduct in this case meets the definition of stalking set out in KRS
508.130(1).
The more difficult question is whether there was sufficient evidence to
prove that Allen made an explicit or implicit threat to put Eder in reasonable fear
of sexual contact, physical injury, or death, as required by KRS 508.150(1)(b).
The Family Court found that Allen’s actions amounted to an implicit threat,
stating, “The act of communicating with Eder to inform her that he was actively
-13- watching her home and monitoring her activities and demonstrating he had the
capability of using his authority as a police officer to obtain information as to her
associations was an implicit threat that caused Eder to fear for her safety.” The
majority agrees with this analysis. I respectfully, and very reluctantly, disagree.
There was no evidence in this case that Allen made an explicit threat
against Eder. I also agree with the majority that the word, “implicit” is properly
defined as “capable of being understood from something else though unexpressed
. . . ; involved in the nature or essence of something though not revealed,
expressed, or developed . . . .” However, KRS 508.150(1)(b) further requires that
the implicit threat be made with the intent to place that person in reasonable fear of
sexual contact, physical injury, or death.
In Holloway, supra, Holloway and Simmons were involved in a
dating relationship that ended in 2015. After the relationship ended, Holloway
alleged that Simmons repeatedly followed her to various public places with the
intent to start arguments with her. In addition, Simmons repeatedly sent harassing
and insulting text messages to Holloway and her friends. Based on this conduct,
Holloway was granted a DVO against Simmons. After Simmons was charged with
violation of the DVO, he sought an IPO against Holloway. Simmons alleged that
Holloway was following him to various public places with the intent either to force
him to leave or have him arrested for violation of the DVO. The trial court granted
-14- an IPO directing Holloway to remain at least 300 feet away from Simmons at all
times. Holloway, 532 S.W.3d at 160-61. On appeal, this Court reversed,
concluding that Holloway’s conduct could not be reasonably construed as an
implicit threat of physical harm against Simmons. Id. at 163.
Other recent cases support this interpretation. In Taylor v. Fitzpatrick,
659 S.W.3d 745 (Ky. App. 2023), the family court renewed an IPO based on
allegations that the respondent followed the petitioner to various public places “in
order to intimidate me[.]” Id. at 749. This Court held that such conduct would not
constitute an implicit threat of physical injury. Id. Similarly, in Sewell v. Sweet,
637 S.W.3d 330 (Ky. App. 2021), we held that the family court’s finding that
stalking had occurred and was likely to occur again was not supported by
substantial evidence. Id. at 336. In that instance, the respondent followed the
petitioner to her workplace and other public places with the intent of starting
arguments, but there had been no threats, implicit or explicit, to support the victim
being in fear of physical injury. Id. And in Caudill v. Caudill, 318 S.W.3d 112
(Ky. App. 2010), this Court considered the statutory definition of stalking under
the DVO statute. We concluded that a visit by respondent to petitioner’s
workplace did not constitute domestic violence sufficient to satisfy the definitions
of such contained within the statutes. Id. at 115.
-15- I can find no meaningful distinction between Allen’s conduct in this
case and the conduct at issue in these other cases. I agree with the Family Court
and the majority that Allen’s actions caused Eder significant alarm and annoyance.
His actions could be reasonably construed as harassing and intimidating, and they
are certainly troubling. In no way can I endorse or justify his behavior. Eder was
justifiably afraid because she did not know what Allen might do next. Indeed, she
noted that Allen continued to engage in this conduct despite the risk to his own
position as Police Chief.
However, Eder did not identify any prior words or conduct by Allen
that would indicate he may resort to violence. Allen’s stalking actions were deeply
disturbing, and, clearly, he abused his authority as a police officer to further his
personal interests. But at most, Allen’s actions indicate a high degree of
recklessness, as well as a willingness to continue this pattern of harassing and
intimidating behavior against Eder. Allen’s actions do not suggest that he may
escalate to violence against Eder. Furthermore, we cannot infer such an intent
from the fact that Allen was a police officer.
Allen’s actions may warrant the entry of a restraining or no-contact
order as part of any separate criminal charges. However, the current statutory
language simply does not permit the granting of an IPO without at least an implicit
threat of sexual contact, physical injury, or death. Evidence of such a threat just
-16- does not exist under these facts. Therefore, I must conclude that the Family Court
clearly erred in finding that his actions amounted to an implicit threat of sexual
contact, physical injury, or death. Consequently, I would hold that the Family
Court abused its discretion by granting the IPO and I would vacate the IPO entered
in this case.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Scott A. Crosbie Nicholas D. Summe Dela C. Cummings Covington, Kentucky Lexington, Kentucky
-17-