Kyle M. Marcum v. Kouet Meng ( 2020 )

RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-000134-ME
KYLE M. MARCUM APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 19-D-00733-001
KOUET MENG APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
CLAYTON, CHIEF JUDGE: Kyle Marcum (“Marcum”) appeals from the Hardin
Circuit Court’s grant of an interpersonal protective order (“IPO”) against him after
finding that he had stalked Kouet Meng (“Meng”). Upon review of the record and
applicable law, we affirm.
BACKGROUND
Meng and Marcum were involved in a dating relationship for
approximately two years. The parties ended their relationship in October of 2019.
On December 13, 2019, Meng filed a petition for an IPO against Marcum. Meng
alleged the following in his petition for the IPO:
[Marcum] let himself into my residence at 5:00 a.m.,
knowing where I normally hide my key. I was asleep
and did not hear him come in until he knocked on my
bedroom door. Being asleep and not expecting anyone to
show up at my place that early in the morning, I opened
the door thinking there was some emergency. When I
opened the door, he grabbed me, pushed me onto the bed,
ripped my pants down, and “examined” me. He then
accused me of cheating on him. [Marcum] and I had
dated for two years until I broke up with him in October.
Since this assault, he has stalked me physically and
online. He showed up at my work on December 12th but
I refused to come out and see him. He will call numerous
times during the day and night. He sends numerous
harassing text messages throughout the day and night.
He accuses me of being a prostitute and threatened to tell
my employer and my friends that I have sex for money
unless I admitted to this lie. I refused to give in and now
he has posted numerous Facebook posts telling lies about
me. Even though I am an American citizen, he has
threatened to call the police and have me deported. He
has sent faceless, pornographic photos to my friends and
told them it was me. The more I try to ignore him, the
angrier he gets. I am afraid that he is going to do
something bad to me, even kill me. His constant posts,
text messages, and telephone calls to my friends and
acquaintances in which he spreads lies about me are
harming my reputation. I just want him to stop
contacting me, harassing me, and stalking me and stay
away from me.
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The circuit court issued a temporary IPO entered on December 17, 2019.
Thereafter, the circuit court held a hearing related to the issues on
December 30, 2019. Meng testified at the hearing that the incidents and
allegations contained in his petition for the IPO were true. Meng additionally
testified that Marcum never made any express threats to physically or sexually
harm Meng or to cause him death. Moreover, Meng testified that, while the
incident in which Marcum entered Meng’s home occurred on December 6, 2019,
Meng waited until December 13 to file the petition for an IPO. Meng further
testified that he had gone to Marcum’s residence one time during that week.
Marcum exercised his Fifth Amendment right against self-incrimination at the
hearing and did not testify.
At the conclusion of the hearing, the circuit court granted Meng an
IPO based on the circuit court’s finding that Marcum had stalked Meng. The IPO
stated that it was effective until December 30, 2021. This appeal followed.
ANALYSIS
a. Standard of Review
A circuit court’s findings of fact will only be disturbed if clearly
erroneous. Kentucky Rule of Civil Procedure (CR) 52.01; Cherry v. Cherry, 634
S.W.2d 423, 425 (Ky. 1982). A finding of fact is clearly erroneous if it is not
supported by substantial evidence. Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky.
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App. 2003) (citations omitted). “Substantial evidence is evidence, when taken
alone or in light of all the evidence, which has sufficient probative value to induce
conviction in the mind of a reasonable person.” Id. (citations omitted). We review
questions of law de novo. Id.
In our review of an IPO, “the test is not whether we would have
decided it differently, but whether the findings of the [family] judge were clearly
erroneous or that he abused his discretion.” Cherry, 634 S.W.2d at 425 (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). “[W]e give much deference to a decision by the family
court, but we cannot countenance actions that are arbitrary, capricious or
unreasonable.” Id. at 916 (citation omitted).
b. Discussion
A person may file a petition for an IPO if they are a victim of stalking.
See Kentucky Revised Statute (KRS) 456.030(1)(b). Marcum contends that the
circuit court’s finding that stalking occurred was not supported by substantial
evidence. Under the IPO statutes, the term “‘[s]talking’ refers to conduct
prohibited as stalking under KRS 508.140 or [KRS] 508.150[.]” KRS 456.010(7).
The two statutes contained in Chapter 508 describe the circumstances constituting
both first-degree and second-degree stalking. In the present case, Marcum’s
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conduct does not appear to satisfy the elements of first-degree stalking because
there have been no allegations that the elements of KRS 508.140(1)(b) were met.
Alternately:
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). The term “stalk” as used in this statute is defined 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.
(b) The course of conduct shall be that which would
cause a reasonable person to suffer substantial mental
distress.
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(2) “Course of conduct” means a pattern of conduct
composed of two (2) or more acts, evidencing a
continuity of purpose.
KRS 508.130.
In this case, Meng alleged that Marcum had – among other things –
utilized a hidden key to access Meng’s apartment unannounced at 5:00 in the
morning and assaulted him, harassed Meng via text messages and phone calls, and
shown up at Meng’s place of work unannounced. The foregoing actions meet the
definition of “stalk” as defined in KRS 508.130. Marcum’s actions constituted a
“course of conduct,” as they involved a pattern of conduct composed of two or
more acts. Further, the course of conduct was clearly intentional, directed at
Meng, seriously alarmed, annoyed, intimidated, or harassed Meng, served no
legitimate purpose, and would cause a reasonable person to suffer substantial
mental distress.
Having met the definition of “stalk” under KRS 508.130, we must
also address whether Marcum’s actions would have satisfied the elements of
second-degree stalking as set forth in KRS 508.150(1). Marcum argues that,
because Meng acknowledged at the hearing that Marcum never made any verbal
threats to harm Meng, Marcum had made no “explicit or implicit threat with the
intent to place [Meng] in reasonable fear” of sexual contact, physical injury, or
death.
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Such argument is unavailing. In Calhoun v. Wood, a panel of this
Court found that an implicit threat existed where an individual intentionally
damaged another individual’s car so that the vehicle would not operate properly.
516 S.W.3d 357, 361 (Ky. App. 2017). The Court did not require that the threat of
physical injury or death had to be directly communicated to the victim by the
perpetrator. Id. Rather, the perpetrator’s actions could be taken as an implicit
threat. Id.
In the case sub judice, Marcum’s actions of intentionally entering
Meng’s home without permission and forcibly pulling down Meng’s pants could
be taken as an implicit threat of future assaults. Marcum’s conduct included not
only implicit threats of injury, but also actual physical contact.
Based on Meng’s testimony, we conclude that the findings of the
circuit court were not clearly erroneous, as they were supported by Meng’s
testimony which the family court found credible. “[J]udging the credibility of
witnesses and weighing evidence are tasks within the exclusive province of the
trial court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted).
Because Marcum’s actions toward Meng met the definition of “stalk” and Marcum
made an implicit threat with the intent to place Meng in reasonable fear of physical
injury, sexual contact, or death, the elements of second-degree stalking under KRS
508.150(1) were satisfied and the circuit court properly issued the IPO.
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CONCLUSION
For the foregoing reasons, the order of the Hardin Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
John N. Nicholas M. Thomas Underwood
Elizabethtown, Kentucky Louisville, Kentucky
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