RENDERED: APRIL 16, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1845-MR
TYKESHA STOKES APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 19-CR-000877-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Tykesha Stokes appeals from the order holding her in contempt
of court entered by the Jefferson Circuit Court on December 17, 2019. After
careful review of the briefs, record, and the law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On December 17, 2019, Stokes was present in Jefferson Circuit Court
for the sentencing hearing of her son, Dominique Parker. After his sentence was announced, Stokes loudly exclaimed, “I don’t know how you all sleep at night!”
The trial court directed the sheriff to take Stokes into custody as she was leaving
the courtroom. The sheriff was the only bailiff present and, charged with keeping
Parker in custody as well as the order of the courtroom, could not pursue Stokes
after she exited the courtroom. A deputy apprehended Stokes outside the
courtroom in the corridor awaiting the elevator. Stokes was escorted before the
trial court and informed she was to serve 30 days in jail. In response, Stokes was
argumentative and disrespectful, and the court threatened to lengthen her sentence
if she continued such behavior. A short time later, Stokes was represented by her
son’s trial counsel who offered an apology on her behalf and requested relief from
imprisonment so that Stokes would not lose her job. The trial court refused to
modify Stokes’s sentence, and this appeal followed.
STANDARD OF REVIEW
“We review the trial court’s exercise of its contempt powers for abuse
of discretion, Lewis [v. Lewis], 875 S.W.2d [862,] 864 [(Ky. 1993)], but we apply
the clear error standard to the underlying findings of fact.” Commonwealth,
Cabinet for Health and Family Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011)
(citing Blakeman v. Schneider, 864 S.W.2d 903 (Ky. 1993)). “The test for abuse
of discretion is whether the trial [court’s] decision was arbitrary, unreasonable,
-2- unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999) (citations omitted).
ANALYSIS
On appeal, Stokes argues the trial court abused its discretion by
finding her in criminal contempt and sentencing her to 30 days’ imprisonment
without conducting a hearing. “Contempt is the willful disobedience toward, or
open disrespect for, the rules or orders of a court.” Commonwealth v. Burge, 947
S.W.2d 805, 808 (Ky. 1996). Contempt may be civil or criminal. Here, we are
dealing with criminal contempt, which:
includes those acts done in disrespect of the court or its processes or which obstruct the administration of justice or tend to bring the court into disrepute. It covers not only acts which directly and openly insult or resist the powers of the court or the persons of the judges, but to consequential, indirect, and constructive contempts which obstruct the process, degrade the authority, and contaminate the purity of the court.
Mitchell v. Commonwealth, 206 Ky. 634, 268 S.W. 313 (1925). See also A.W. v.
Commonwealth, 163 S.W.3d 4, 10-11 (Ky. 2005).
Contempt may also be direct or indirect. Another panel of our Court
described the distinction between the two as follows:
direct contempt occurs while the actor is before the court and is “an affront to the dignity of the court” which may be punished summarily. Indirect criminal contempt, on the other hand, “‘is committed outside the presence of the court and requires a hearing and the presentation of
-3- evidence’ in order ‘to establish a violation of the court’s order. It may be punished only in proceedings that comport with due process.’”
Brockman v. Commonwealth, 185 S.W.3d 205, 208 (Ky. App. 2005) (footnotes
omitted). Here, it is clear from the record this case concerns direct contempt as the
basis of the contempt order occurred in the presence of the court.
There are also varying degrees of contempt: petty, serious, or
somewhere in between. The record herein demonstrates that Stokes’s behavior—
while no doubt is to be taken seriously—was of the “petty” variety. Kentucky’s
highest Court has observed:
traditionally and under current Supreme Court doctrine a court may proceed summarily to sanction petty contempts committed directly in the court’s presence. [Int’l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 832, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994).] Such on-the-record contempts are “self-proving,” as it were, and thus do not require the court to assume a prosecutorial role in identifying or establishing them. The court’s sanctioning response is a judicial act, and it is an act so naturally to be anticipated that the direct contemnor may be presumed to have notice of it. Where the conduct giving rise to the sanction occurs directly on the record, moreover, that record, even without benefit of formal hearing and adversarial briefing, will generally provide an adequate basis for appellate review of . . . the trial court’s “nearly unlimited discretion” in exercising its contempt powers to assure the orderliness and decorum of its proceedings.
Cabinet for Health and Family Servs. v. J.M.G., 475 S.W.3d 600, 615 (Ky. 2015).
-4- Nevertheless, Stokes contends the trial court made factual findings
regarding her conduct both inside the courtroom and outside the court’s presence,
meaning the trial court found her guilty of direct and indirect contempt without
sufficient due process because a hearing was required. Specifically, she challenges
the order for addressing her conduct outside the courtroom regarding her attempt to
flee via the elevator. Stokes’s intended means of escape after leaving the
courtroom is largely immaterial to the substance of the trial court’s order, which
would be well supported even if the language concerning the means of escape were
omitted. Furthermore, we may affirm for any reason supported by the record.
Peterson v. Foley, 559 S.W.3d 346, 349 (Ky. 2018). The mere fact Stokes evaded
custody by continuing to walk away and exiting the courtroom after hearing the
trial court’s order is sufficient evidence to hold her in direct contempt. The fact
Stokes’s brief custodial evasion extended to the hallway does not transform her
behavior from direct to indirect contempt requiring heightened criminal due
process consideration. Herein, the trial court had already determined Stokes’s
sentence for contempt before she exited the courtroom. As the trial court did not
increase Stokes’s days of incarceration due to whatever occurred outside its
presence, such clearly made no impact on the court’s prior determination.
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RENDERED: APRIL 16, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1845-MR
TYKESHA STOKES APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 19-CR-000877-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Tykesha Stokes appeals from the order holding her in contempt
of court entered by the Jefferson Circuit Court on December 17, 2019. After
careful review of the briefs, record, and the law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On December 17, 2019, Stokes was present in Jefferson Circuit Court
for the sentencing hearing of her son, Dominique Parker. After his sentence was announced, Stokes loudly exclaimed, “I don’t know how you all sleep at night!”
The trial court directed the sheriff to take Stokes into custody as she was leaving
the courtroom. The sheriff was the only bailiff present and, charged with keeping
Parker in custody as well as the order of the courtroom, could not pursue Stokes
after she exited the courtroom. A deputy apprehended Stokes outside the
courtroom in the corridor awaiting the elevator. Stokes was escorted before the
trial court and informed she was to serve 30 days in jail. In response, Stokes was
argumentative and disrespectful, and the court threatened to lengthen her sentence
if she continued such behavior. A short time later, Stokes was represented by her
son’s trial counsel who offered an apology on her behalf and requested relief from
imprisonment so that Stokes would not lose her job. The trial court refused to
modify Stokes’s sentence, and this appeal followed.
STANDARD OF REVIEW
“We review the trial court’s exercise of its contempt powers for abuse
of discretion, Lewis [v. Lewis], 875 S.W.2d [862,] 864 [(Ky. 1993)], but we apply
the clear error standard to the underlying findings of fact.” Commonwealth,
Cabinet for Health and Family Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011)
(citing Blakeman v. Schneider, 864 S.W.2d 903 (Ky. 1993)). “The test for abuse
of discretion is whether the trial [court’s] decision was arbitrary, unreasonable,
-2- unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999) (citations omitted).
ANALYSIS
On appeal, Stokes argues the trial court abused its discretion by
finding her in criminal contempt and sentencing her to 30 days’ imprisonment
without conducting a hearing. “Contempt is the willful disobedience toward, or
open disrespect for, the rules or orders of a court.” Commonwealth v. Burge, 947
S.W.2d 805, 808 (Ky. 1996). Contempt may be civil or criminal. Here, we are
dealing with criminal contempt, which:
includes those acts done in disrespect of the court or its processes or which obstruct the administration of justice or tend to bring the court into disrepute. It covers not only acts which directly and openly insult or resist the powers of the court or the persons of the judges, but to consequential, indirect, and constructive contempts which obstruct the process, degrade the authority, and contaminate the purity of the court.
Mitchell v. Commonwealth, 206 Ky. 634, 268 S.W. 313 (1925). See also A.W. v.
Commonwealth, 163 S.W.3d 4, 10-11 (Ky. 2005).
Contempt may also be direct or indirect. Another panel of our Court
described the distinction between the two as follows:
direct contempt occurs while the actor is before the court and is “an affront to the dignity of the court” which may be punished summarily. Indirect criminal contempt, on the other hand, “‘is committed outside the presence of the court and requires a hearing and the presentation of
-3- evidence’ in order ‘to establish a violation of the court’s order. It may be punished only in proceedings that comport with due process.’”
Brockman v. Commonwealth, 185 S.W.3d 205, 208 (Ky. App. 2005) (footnotes
omitted). Here, it is clear from the record this case concerns direct contempt as the
basis of the contempt order occurred in the presence of the court.
There are also varying degrees of contempt: petty, serious, or
somewhere in between. The record herein demonstrates that Stokes’s behavior—
while no doubt is to be taken seriously—was of the “petty” variety. Kentucky’s
highest Court has observed:
traditionally and under current Supreme Court doctrine a court may proceed summarily to sanction petty contempts committed directly in the court’s presence. [Int’l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 832, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994).] Such on-the-record contempts are “self-proving,” as it were, and thus do not require the court to assume a prosecutorial role in identifying or establishing them. The court’s sanctioning response is a judicial act, and it is an act so naturally to be anticipated that the direct contemnor may be presumed to have notice of it. Where the conduct giving rise to the sanction occurs directly on the record, moreover, that record, even without benefit of formal hearing and adversarial briefing, will generally provide an adequate basis for appellate review of . . . the trial court’s “nearly unlimited discretion” in exercising its contempt powers to assure the orderliness and decorum of its proceedings.
Cabinet for Health and Family Servs. v. J.M.G., 475 S.W.3d 600, 615 (Ky. 2015).
-4- Nevertheless, Stokes contends the trial court made factual findings
regarding her conduct both inside the courtroom and outside the court’s presence,
meaning the trial court found her guilty of direct and indirect contempt without
sufficient due process because a hearing was required. Specifically, she challenges
the order for addressing her conduct outside the courtroom regarding her attempt to
flee via the elevator. Stokes’s intended means of escape after leaving the
courtroom is largely immaterial to the substance of the trial court’s order, which
would be well supported even if the language concerning the means of escape were
omitted. Furthermore, we may affirm for any reason supported by the record.
Peterson v. Foley, 559 S.W.3d 346, 349 (Ky. 2018). The mere fact Stokes evaded
custody by continuing to walk away and exiting the courtroom after hearing the
trial court’s order is sufficient evidence to hold her in direct contempt. The fact
Stokes’s brief custodial evasion extended to the hallway does not transform her
behavior from direct to indirect contempt requiring heightened criminal due
process consideration. Herein, the trial court had already determined Stokes’s
sentence for contempt before she exited the courtroom. As the trial court did not
increase Stokes’s days of incarceration due to whatever occurred outside its
presence, such clearly made no impact on the court’s prior determination.
Stokes further asserts the trial court relied on statements allegedly
made by her that are not part of the video record on appeal; however, Stokes failed
-5- to include the record in her appeal. It is well-established that it is an appellant’s
duty to see that the record is complete on appeal. Commonwealth, Dept. of
Highways v. Richardson, 424 S.W.2d 601, 603 (Ky. 1968). “It is also reasonable
to place upon appellant the duty to designate and file a record sufficient to enable
the court to pass on the alleged errors.” Burberry v. Bridges, 427 S.W.2d 583, 585
(Ky. 1968). “[W]e have consistently and repeatedly held that it is an appellant’s
responsibility to ensure that the record contains all of the materials necessary for an
appellate court to rule upon all the issues raised.” Clark v. Commonwealth, 223
S.W.3d 90, 102 (Ky. 2007). When the complete record is not before an appellate
court, we are bound to assume the omitted record supports the decision of the trial
court. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). We will
not “engage in gratuitous speculation . . . based upon a silent record.” Id.
Accordingly, here we must assume any omitted portion of the video record
supports the trial court’s contempt order.
Stokes also takes issue with the trial court’s disagreement with her
assertion that she was remorseful for her conduct based on the trial court’s stating,
“it does not appear that [defense counsel] had the opportunity to speak with her[.]”
This issue is immaterial to the trial court’s decision. The trial court is not bound by
Stokes’s remorse, or lack thereof. We see no clear error or abuse of discretion in
this regard.
-6- Stokes’s final argument is that the trial court’s contempt order was an
abuse of its discretion because the punishment was arbitrary, unfair, and
unreasonable. She asserts the punishment was not “reasonably related to the
nature and seriousness of the party’s contemptuous behavior.” Meyers v. Petrie,
233 S.W.3d 212, 216 (Ky. App. 2007) (emphasis in original) (citing U.S. v.
Conole, 365 F.2d 306, 308 (3d Cir. 1966)). However, Stokes offers little, if any,
support for this argument. “It is not our function as an appellate court to research
and construct a party’s legal arguments.” Hadley v. Citizen Deposit Bank, 186
S.W.3d 754, 759 (Ky. App. 2005). We will not search the record to construct
Stokes’s argument, nor will we go on a fishing expedition to find support for this
underdeveloped argument. “Even when briefs have been filed, a reviewing court
will generally confine itself to errors pointed out in the briefs and will not search
the record for errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979).
The trial court has much discretion in determining an appropriate contempt
sentence, and we will not disturb that discretion.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Jefferson
Circuit Court is AFFIRMED.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kristin Logan Mischel Daniel Cameron Rob Eggert Attorney General of Kentucky Louisville, Kentucky Lauren Lewis Assistant Attorney General Frankfort, Kentucky
-8-