Kimberly Ann Smith v. Shannon Lynne Howell

• Court: Court of Appeals of Kentucky
• Decided: October 11, 2024
• Docket: 2024-CA-0324
• Status: Unpublished

Opinion

RENDERED: OCTOBER 11, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0324-ME

KIMBERLY ANN SMITH APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE DENISE D. BROWN, JUDGE ACTION NO. 24-D-500429-001

SHANNON LYNNE HOWELL APPELLEE

OPINION REVERSING AND VACATING

** ** ** ** **

BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.

CETRULO, JUDGE: This is an appeal from the entry of an interpersonal

protective order (“IPO”) against Kimberly Ann Smith (“Smith”). On February 10,

2024, Smith’s cousin, Shannon Howell (“Howell”) filed for a temporary protective

order which was granted pending a hearing. On February 14, 2024, the parties

appeared before the Jefferson Family Court for the hearing. Before considering

any proof as to the nature of the allegations, the family court confirmed the parties were cousins who did not reside together, and there was no special relationship

between them. The court then advised the parties it lacked jurisdiction to enter any

type of protective order. The court advised Howell she could pursue other

avenues, but she would have to dismiss the action for an IPO.1

According to Smith’s brief, the parties were leaving the building when

they were stopped by the deputy sheriff and asked to return to the courtroom.2 On

the record, the judge indicated she had “found an exception to jurisdiction”

because Howell had alleged “stalking” which does not require a marital, close

biological, or dating relationship for entry of an IPO. The court then proceeded to

conduct a hearing on Howell’s petition.

The judge referenced the petition which was read into the record in

the prior hearing, and then invited both parties to testify. Howell testified there

had been issues between her and Smith since 2021. She claimed Smith frequently

drove by her home and texted and called her. However, Howell stated she had

blocked Smith on her phone in September 2023. She stated she had multiple texts

1 Unlike a domestic violence order (“DVO”), an IPO is available to victims of dating violence or abuse, sexual assault, or stalking without having to show a close familial relationship or sexual relationship with the perpetrator. Smith v. Doe, 627 S.W.3d 903, 909-10 (Ky. 2021). 2 Appellee chose not to file a brief on appeal. Kentucky Rule of Appellate Procedure (“RAP”) 31(H)(3) provides this Court with options to impose penalties on the appellee and further requires us to primarily rely upon the appellant’s statement of the facts. See Hawkins v. Jones, 555 S.W.3d 459 (Ky. App. 2018). Our review is certainly constrained when an appellee does not respond to the appeal by filing a brief. However, we have elected to carefully review the entire record on appeal and address the merits.

-2- from Smith which she had saved, but those were not shared or read into the record.

The petition alleged Howell had kept all threatening voicemails and texts.

However, at the hearing, she testified she had only saved one, a call on February 4.

That call resulted in the filing of the petition. The judge asked Howell to play the

voicemail which did contain two threats to Howell by Smith. The message was

laced with profanity and hostility and a threatening tone.

Smith then testified. She was tearful and remorseful, but did admit it

was her voice on the message. She also admitted she had made two prior calls to

Howell when family members had died. She denied ever riding by Howell’s

home. No other witnesses testified.

After hearing from the parties, the family court set aside the prior

dismissal and entered an IPO against Smith for three years, stating the “court heard

proof and finds by a preponderance of the evidence that stalking has occurred and

is likely to occur in the future.”3 This appeal followed.

STANDARD OF REVIEW The standard of review for factual determinations is whether the

finding of the family court was clearly erroneous. Reichle v. Reichle, 719 S.W.2d

3 The court did not check the boxes on the form reflecting any supplemental findings but did handwrite some notes on the docket sheet regarding Smith’s testimony that there were texts sent and that Smith had driven by her home. She also sua sponte added Smith’s father, (who was in the courtroom but did not testify), as an additional protected person, even though that was not supported by any evidence of stalking against him.

-3- 442, 444 (Ky. 1986). Findings are not clearly erroneous if “supported by

substantial evidence.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation

omitted). “‘[S]ubstantial evidence’ is ‘[e]vidence that a reasonable mind would

accept as adequate to support a conclusion’ and evidence that, when ‘taken alone

or in the light of all the evidence, . . . has sufficient probative value to induce

conviction in the minds of reasonable men.’” Id. (footnotes and citations omitted).

When a party appeals from the entry of an IPO, we cannot disturb the findings of

the family court unless they are clearly erroneous, i.e., not supported by substantial

evidence. However, we review questions of law under the non-deferential de novo

standard. Jones v. Jones, 617 S.W.3d 418, 423 (Ky. App. 2021) (citation omitted).

This appeal raises both an issue of statutory interpretation and sufficiency of the

evidence.

Pursuant to Kentucky Revised Statute (“KRS”) Chapter 456, the

family court may render an IPO only if it finds by a “preponderance of the

evidence that . . . stalking has occurred and may again occur . . . .” KRS

456.060(1). The family court stated that it so found. However, the statute sets

forth the definition of stalking, and we must turn to that language to determine if

the statutory elements have been met.

LEGAL ANALYSIS

A person may file a petition for an IPO if they are a victim of stalking.

-4- KRS 456.010(8) defines stalking as conduct prohibited by KRS 508.140 and KRS

508.150. Those provisions refer, respectively, to the criminal offenses of first and

second-degree stalking. There was no basis for a determination of first-degree

stalking because those elements did not exist.4 Thus, we are looking solely at

whether the elements of second-degree stalking were present. This Court

previously stated:

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.

Halloway v. Simmons, 532 S.W.3d 158, 162 (Ky. App. 2017).

In turn, KRS 508.150 must be read in combination with KRS 508.130,

which defines stalking as follows:

(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.

4 KRS 508.140(b) contains aggravating circumstances that heighten the crime to stalking in the first degree. This case contains none of those aggravating circumstances.

-5- (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.

KRS 508.130 makes it clear that stalking entails “an intentional

course of conduct,” and it defines course of conduct as a “pattern of conduct”

consisting of at least two acts “evidencing a continuity of purpose.” 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 (citing KRS 508.150).

In Sewell v. Sweet, 637 S.W.3d 330 (Ky. App. 2021), we ruled a

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, there had been

“no threats, implicit or explicit,” to support the victim being in fear of physical

injury. Id. Although the perpetrator had visited the petitioner’s “place of

employment on numerous occasions”, the evidence did not indicate behavior

sufficient to amount to a threat with the intent to place one in reasonable fear of

serious injury. Id.

In Taylor v. Fitzpatrick, 659 S.W.3d 745 (Ky. App. 2023), we found

-6- there was no substantial evidence stalking had occurred where the petitioner “did

not prove any specific two or more instances of behavior that would constitute

stalking, as defined by KRS 508.130.” Id. at 751. “The evidence [did] not rise to

the level of a ‘course of conduct’ . . . which seriously alarm[ed], annoy[ed],

intimidate[d], or harasse[d] the person and serve[d] no legitimate purpose and

would cause a reasonable person to suffer substantial mental distress.” Id. Again,

referring to Halloway, we required proof of “two or more acts” that put the victim

in reasonable fear of serious physical injury. Id. (quoting Halloway, 532 S.W.3d at

162).

In Allen v. Eder, 682 S.W.3d 32 (Ky. App. 2023), the majority found

the evidence was sufficient to support the trial court’s finding of stalking, even

though the threat in that instance was only implicit. Id. at 37. However, in

Halloway, supra, we reversed an IPO, concluding the conduct could not be

construed as an implicit threat of physical harm. Halloway, 532 S.W.3d at 163. In

Strong v. Gary, 673 S.W.3d 77, 80-81 (Ky. App. 2023), we affirmed the family

court’s denial of an IPO because the petitioner did not “prove two separate

instances of stalking by a preponderance of the evidence.” Stalking cases are

difficult, as evidenced by the varied results.

However, our precedent requires a finding of a minimum of “two or

more acts” to constitute stalking. Strong, 673 S.W.3d at 80. See also Jones, 617

-7- S.W.3d at 426. Howell testified Smith had left other messages on her voicemail

which she had not saved, but she did not describe any threats. She stated she had

text messages on her phone, but she did not testify as to the content of those

messages. She presented evidence of only the one threatening call.

Smith admitted she had made three phone calls to Howell over the

past several months, but there was no evidence as to the content of those calls.

There was no evidence presented of other threatening calls or texts of such a nature

as to cause a reasonable person to be in fear of serious injury. In this case, Smith’s

voicemail message of February 4 included two explicit threats to Howell that if

Smith were to see her out, she would “beat her ass” or “slap her face.” The

language throughout this message was harsh enough to have put Howell in

reasonable fear of injury from Smith. Still, this does not constitute two separate

events.

The only specific proven “threat” was this recorded phone call of

February 4, 2024. Howell admitted she did not have dates or times of other

activities, although she claimed that unwanted contact by Smith dated back to 2020

or 2021. She testified she had texts where Smith cussed her out, but there was no

evidence presented of any threats other than this one phone call. While we do not

substitute our opinion for the family court, the statute requires threatening action

on more than one occasion over a defined period. KRS 508.130(2). There must be

-8- a finding of a minimum of “two or more acts” to constitute stalking. Taylor, 659

S.W.3d at 751. Here, Howell did not provide evidence of any other threats that

caused her, or would cause any reasonable person, to be in fear of serious injury.

She did not present evidence to rise to a level of a “course of conduct” as required

by KRS 508.130. While we certainly do not condone Smith’s actions and

language on February 4, 2024, the issuance of a three-year protective order holds

serious ramifications that cannot be imposed without evidence of the elements

required by the statutes.

For those reasons, we reverse the Jefferson Circuit Court and vacate

the IPO entered herein.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Timothy Denison Louisville, Kentucky

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