Antwan D. Miles v. Lyndsey Kay Skaggs ( 2021 )

RENDERED: SEPTEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0222-ME
ANTWAN D. MILES APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 18-D-502963-003
LYNDSEY1 KAY SKAGGS APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL,
JUDGES.
CLAYTON, CHIEF JUDGE: Antwan D. Miles (“Miles”) appeals from the
Jefferson Circuit Court’s entry of a domestic violence order (“DVO”) against him
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The Appellant named “Lyndsey Kay Skaggs” as Appellee in the notice of appeal. This appears
to be an incorrect spelling of Appellee’s first name. As such, the Court has chosen to use
“Lyndsay” which is consistent with the circuit court.
and in favor of Lyndsay Kay Skaggs (“Skaggs”). Upon review of the record and
applicable law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Miles and Skaggs were previously in a relationship and had one child
together. Prior to the petition involved in this situation, Skaggs filed two petitions
against Miles for an Emergency Protective Order (“EPO”). The first was in
October of 2018, in which Skaggs alleged that Miles had followed her from her
home to the mall, and then to various stores once she arrived at the mall. Skaggs
further alleged that Miles put his arm around her so that she could not walk away
from him and would not leave her alone despite her repeated requests for him to do
so. Additionally, Skaggs alleged that Miles followed her into the parking lot and
would not let her close her car door. Skaggs indicated that such behavior had been
going on since April of 2018, including Miles following her to and from work,
constantly calling and “FaceTiming” her, and threatening to kill her. At Skaggs’
request, the circuit court entered an order dismissing Skaggs’ first petition for an
EPO without prejudice.
Skaggs filed the second petition for an EPO against Miles on April 18,
2019. Skaggs alleged in the petition that Miles was parked at her home when she
arrived home and proceeded to punch her car windows. Skaggs alleged that this
encounter ultimately ended with Miles raping her. Skaggs further alleged other
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threatening behaviors by Miles, including blocking her car in her driveway to
prevent her from leaving and stalking her. Additionally, Skaggs indicated that
Miles possessed a firearm and was a convicted felon. Following a hearing, the
court dismissed Skaggs’ petition on May 14, 2019, finding that Skaggs had both
made numerous phone calls to Miles and had permitted Miles to watch their baby
for a period of one week after she had filed her second petition for an EPO.
Thereafter, on October 5, 2020, Skaggs filed a third petition against
Miles. Skaggs alleged in the third petition that Miles had been arrested for
numerous narcotics and firearm offenses and that a law enforcement officer had
advised her that Miles and his family believed Skaggs was responsible for the
arrest and that her life was in danger. She reiterated that Miles had assaulted and
stalked her in the past, that Miles’ family had also threatened her, and that she was
scared for her safety and the safety of her children.
The circuit court held a hearing on Skaggs’ third petition on
November 17, 2020. Skaggs first testified that everything that she had alleged in
her petition was accurate and should be considered by the trial court as part of her
testimony at the hearing. Skaggs further described that she had seen Miles with a
pistol before, and testified that, on September 30, 2020, she learned that Miles had
been arrested. Specifically, she testified that she received a text message from a
detective involved in Miles’ case indicating that Miles had been arrested and that
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she may want to leave her home because Miles and his family blamed her for his
arrest. Skaggs further testified that, once she received the information, she did not
leave her home for three days out of fear, and that she was scared inside of her
home as well. Finally, Skaggs testified during cross-examination that Miles had
not contacted her since January 2020, when the court ordered the parties to have no
contact in their custody action.
Miles declined to testify at the hearing because of his pending
criminal action.
Following the hearing, the court entered a DVO against Miles for one
year. Specifically, the circuit court stated that “[g]iven the entirety of all of the
circumstances and the history that I’m aware of I’m, I’m gonna enter the DVO for
one year that Mr. Miles not have any contact with Ms. Skaggs.” However, the
circuit court declined to address anything related to the children in the case and did
not require Miles to go to any classes. The court found that Skaggs did feel
threatened, and that although the court had declined to grant the previous petition,
that the new evidence that Miles potentially blamed her for his arrest, in the totality
of the circumstances, a DVO for one year was justified in this case. Miles
subsequently filed a motion to alter, amend, or vacate, which was denied on
February 9, 2021.
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ANALYSIS
Upon appellate review of a DVO, “the test is not whether we would
have decided it differently, but whether the court’s findings were clearly erroneous
or that it abused its discretion.” Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App.
2008) (citations omitted). A finding made by the trial court is not clearly
erroneous if it is “supported by substantial evidence or, in other words, evidence
that when taken alone or in light of all the evidence has sufficient probative value
to support the trial court’s conclusion.” Rupp v. Rupp, 357 S.W.3d 207, 208 (Ky.
App. 2011) (citation omitted). Further, “due regard shall be given to the
opportunity of the trial judge to judge the credibility of the witnesses.” Kentucky
Rules of Civil Procedure (CR) 52.01; see also Reichle v. Reichle, 719 S.W.2d 442,
444 (Ky. 1986).
Turning to the particular facts and applicable law in this case,
pursuant to Kentucky Revised Statutes (KRS) 403.740(1), “[f]ollowing a
hearing . . . if a court finds by a preponderance of the evidence that domestic
violence and abuse has occurred and may again occur, the court may issue a
domestic violence order[.]” Therefore, pursuant to the statutory language, a trial
court must make two separate findings – that domestic violence and abuse has
occurred as well as the likelihood of future domestic violence. Guenther v.
Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012).
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“The preponderance of the evidence standard is met when sufficient
evidence establishes that the alleged victim was more likely than not to have been
a victim of domestic violence.” Gomez, 254 S.W.3d at 842 (internal quotation
marks and citation omitted). The act of domestic violence and abuse is defined as:
“physical injury, serious physical injury, stalking, sexual abuse, strangulation,
assault, or the infliction of fear of imminent physical injury, serious physical
injury, sexual abuse, strangulation, or assault between family members or members
of an unmarried couple[.]” KRS 403.720(1). “[I]n the context of domestic
violence and abuse . . . belief that danger is imminent can be inferred from a past
pattern of repeated serious abuse.” KRS 503.010(3).
Regarding evidence that domestic violence may again occur as
required by KRS 403.740(1), the Kentucky Supreme Court has observed that “[t]he
predictive nature of the standard requires the family court to consider the totality of
the circumstances and weigh the risk of future violence against issuing a protective
order.” Pettingill v. Pettingill, 480 S.W.3d 920, 925 (Ky. 2015). In Boone v.
Boone, 501 S.W.3d 434, 440 (Ky. App. 2016), this Court explained:
Kentucky courts have liberally construed our statutory
scheme in order to afford relief. KRS 403.715(1)
mandates that the domestic violence statutes be
interpreted to “[a]llow 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[.]”
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(Citation omitted.)
In this case, Miles argues that the circuit court abused its discretion in
entering the DVO without a sufficient factual basis. We have examined the record
in its entirety and are not persuaded by Miles’ arguments that the circuit court’s
findings were clearly erroneous or that the circuit court abused its discretion.
Proof in support of the DVO was adduced in the form of Skaggs’ testimony that
Miles had inflicted fear of imminent physical injury or assault upon Skaggs, which
testimony may constitute substantial evidence to support the trial court’s findings.
Bjelland v. Bjelland, 408 S.W.3d 86, 89 (Ky. App. 2013).
In particular, the court heard testimony from Skaggs that Miles had
threatened and stalked her in the past and that she was fearful of him.
Additionally, the court heard evidence that Miles was in the possession of a
firearm and blamed Skaggs for his arrest on drug charges. Given Skaggs’
testimony concerning Miles’ past pattern of repeated violent outbursts coupled
with her testimony concerning the message she had received from the detective
indicating that she should leave her home, Skaggs’ fear of imminent physical
injury was reasonable. Indeed, “[d]eciding which witness to believe is within the
sound discretion of the family court as fact-finder; we will not second-guess the
family court, which had the opportunity to observe the parties and assess their
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credibility.” Hunter v. Mena, 302 S.W.3d 93, 98 (Ky. App. 2010) (citing CR
52.01). Further:
the trier of fact has the right to believe the evidence
presented by one litigant in preference to another. The
trier of fact may believe any witness in whole or in part.
The trier of fact may take into consideration all the
circumstances of the case, including the credibility of the
witness.
Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996) (citations omitted).
After hearing the testimony from Skaggs, the circuit court chose to believe Skaggs’
version of events, concluding that an act of domestic violence had occurred and
that Skaggs was the victim.
Further, based on the record, we conclude the evidence presented was
sufficient for the circuit court to reasonably infer that Miles had previously
engaged in acts of domestic violence against Skaggs and that his conduct caused
Skaggs to be in imminent fear that he would engage in future acts of domestic
violence against her if he was not restrained. The court reiterated that it was
considering the totality of the circumstances in reaching its decision, and that it
was narrowly-tailoring its decision to the facts of the case. Further, based on the
totality of the evidence concerning the fact that the parties had children together
and the ongoing conflict between them, the trial court’s conclusion that domestic
violence and abuse may occur again was not clearly erroneous.
CONCLUSION
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In light of the foregoing, the Jefferson Circuit Court’s November 17,
2020 DVO against Miles is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Catherine J. Kamenish Leland R. Howard, II
Louisville, Kentucky Louisville, Kentucky
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