Castle v. Castle

• Decision Date: 25 January 2019
• Docket Number: NO. 2018-CA-000019-ME,2018-CA-000019-ME
• Citation: 567 S.W.3d 908
• Parties: Charles CASTLE, Appellant v. Robin CASTLE, Appellee
• Court: Kentucky Court of Appeals

567 S.W.3d 908

Charles CASTLE, Appellant

v.Robin CASTLE, Appellee

NO. 2018-CA-000019-ME

Court of Appeals of Kentucky.

JANUARY 25, 2019; 10:00 A.M.

OPINION

NICKELL, JUDGE:

Charles Castle appeals from denial of a motion to alter, amend or vacate entry of a domestic violence order ("DVO") restraining him from unauthorized contact with Robin Castle—his wife of eight years—and A.H. and O.H.,¹ her twin teenage daughters from a prior marriage. Charles alleges entry of the DVO, premised on a sexual assault having occurred and the possibility of it recurring, was an abuse of the Rowan Circuit Court’s discretion because there was no testimony he sexually assaulted Robin or A.H., and there was insufficient proof he sexually assaulted O.H. Following thorough review of the record, Charles' brief,² and the law, we reverse and direct entry of a new judgment.

FACTS AND PROCEDURAL BACKGROUND

On September 29, 2017, Robin petitioned the Rowan District Court for an emergency protective order ("EPO") for herself and her daughters. The petition was based on handwritten statements prepared by Robin and O.H. Robin wrote, Charles was "verbally and mentally abusive for eight years of our marriage (8 yrs.)," and, "on September 23rd he sexually harassed [O.H.], a minor under his care, while alone with her in the car." On a separate sheet, O.H. wrote,

[Charles] has sexually assualted [sic] me 3 times as of now. The most recent occuring [sic] on September 23, 2017. He would corner me in the car alone with him and ask me sexual questions, inapproperately [sic] grabbed my boob, and pressure [sic] me into showing him my boobs (I repeatedly told him no) and tried to tell me to not tell my mom or sister what happened while in the car.

On October 9, 2017, Charles petitioned the Rowan Circuit Court to dissolve the marriage. As a result, the EPO petition was passed from Rowan District Court to Rowan Circuit Court where Robin and O.H. testified on October 27, 2017.

O.H. was the first witness called during the hearing. She began her direct examination by describing the events of September 23, 2017—the day of the high school Homecoming dance:

O.H. I had to pick up my friend because we were going to do makeup that day together. And Charlie and me were in the car alone, and we had to take the long way around, and he asked me a lot of sexualized questions like, -- he'd always -- he'd ask, can I see your boobs or can I touch them or he asked me if I've had an orgasm or if I knew how -- if I knew what a -- if I knew what it was. He talked about my mom’s sex life. He -- asked if I knew how to kiss, if I knew -- if I knew what a blow job was and --

Atty How did that make you feel, [O.H.]?

O.H. Scared. I didn't know what he was going to do. I was scared he'd pull over the car and do something to me. When I got to my friend’s house, I went in her bathroom and cried for five minutes.

Atty What else occurred during the drive?

O.H. He just asked a lot of really uncomfortable questions. (CRYING) I'm sorry.

Atty Did he touch you or attempt to touch you?

O.H. I don't remember him attempting to touch me that time.

Atty Did that occur on another date and time?

O.H. Yeah.

Atty Describe what occurred -- when -- what was the date, to the best of your knowledge, of that occurrence, and describe what happened?

O.H. To the best of my knowledge, it was about half a year ago. I -- I don't know if that was before or after my birthday. I could have been fifteen at the time. I don't know.

...

O.H. It happened six months ago, and I -- we were in the car alone again, and I might -- I was -- we were talking about the last trip I went with my mom to Lexington, and I brought up all the stores we went to and -- we went to Victoria’s Secret -- we went -- that time that we went, and it got onto the topic, and he asked all these questions about what bra I was wearing, and he -- he asked he [sic] if he could feel like, the material, and he grabbed my boob. That’s the time that he -- he touched me.

Atty How did that make you feel?

O.H. Really uncomfortable. I don't think I talked the rest of that drive.

Atty Did you confide in your mother or another person at that time?

O.H. I talked to my mom and my best friend, Catherine. I didn't tell anyone else.

...

Atty Did this occur on any other occasions?

O.H. Nothing to that level. No.

Atty What are some other occurrences regarding a sexual nature that have occurred between you and Mr. Castle?

O.H. I don't know if it would be referred as sexual, but like, when -- whenever his back was hurting or something, I -- I would help him with that or like, one time, when his thigh was hurting, I had ... to do that.... Whenever he had aches or something, I would help him with that.... That’s the only time I can really think that it could be seen as something out of the ordinary.

Atty What are you asking this Court to do?

O.H. I just don't want him around me or my family.

Atty How do you feel about being in Mr. Castle’s presence?

O.H. Uncomfortable. I don't want to be around him. I'm mad, mostly, but scared, too.

O.H. clarified she meant Charles "grabbed me inappropriately" when she used the term "sexually [assaulted]" in her statement in support of the EPO. O.H. testified three incidents involving Charles made her uncomfortable; she was asked about each incident separately.

The first incident described, but not the first chronologically—the uncomfortable conversation in the car—occurred midday on September 23, 2017, while Charles was driving her to a friend’s apartment to prepare for the Homecoming dance. O.H.’s description of the awkward conversation ended without mention of anything else memorable occurring that day, but when asked about another line in her written statement—"pressured me into showing him my boobs"— she said that also happened on September 23, but did not say whether she complied with his request. In her written statement she said, "I repeatedly told him no." Despite the uncomfortable conversation, she went to the dance because "I didn't want to ruin my friend’s night."

The second incident discussed—when Charles "grabbed my boob"—occurred in a car at night about six months earlier while returning from grocery shopping. Again, Charles was driving.

The third incident described—which occurred a "few weeks" after Charles grabbed her—was when "he told me not to tell my mom what he -- like, what we talked about in the car³ -- because he thought my mom overreacted." O.H.’s cross-examination concluded with the following exchange:

Q Are you alleging that Charlie physically injured you? You're not, are you?

O.H. No.

Q And so then, you're not alleging that he seriously physically injured you, are you?

O.H. No.

Q You're not alleging that he stalked you, are you?

O.H. That he what?

Q Stalked. Do you know what that means, [O.H.]?

O.H. No.

Q You're not alleging that, are you?

O.H. Yeah. I'm not.

Q Okay. And you're not alleging that you were afraid that he was going to immediately physically injure you? You're not alleging that, are you?

O.H. No.

She then voiced her real concern:

I was afraid that if we stayed in that house and my mom just let this go, that it would happen again, maybe not immediately, but again or it'd go further, and we would be stuck in that house. I was afraid that he would hurt me, maybe not immediately, but sometime in the future.

Robin testified next. When her attorney asked her to "explain to me what your daughter shared to you, and then what was [Charles'] response," opposing counsel objected on grounds of hearsay. Citing "the Jett doctrine,"⁴ the trial court allowed Robin to repeat what O.H. had told her about the incident six months prior to the Homecoming dance in which O.H. alleged Charles had physical contact with her. Echoing her daughter’s testimony, Robin said O.H. had alleged Charles "grabbed her boob." Robin went on to say she was "floored" by her daughter’s accusation and confronted her husband about it. He claimed it was an accident and he "barely brushed her." Robin gave Charles "the benefit of the doubt," but thereafter "kept my eyes open and my ears open." On learning of the event, Robin did not contact police, nor did she seek an EPO. Robin was familiar with the process of obtaining an EPO because she had previously sought one against her own mother.

Robin then described the events of September 23, 2017. She picked up the twins and a classmate from the Homecoming dance. Robin drove to the classmate’s home and A.H. escorted the friend to the door. While O.H. and Robin were alone in the car, a tearful O.H. described the uncomfortable conversation she had with Charles earlier that day. According to Robin—who did not witness the conversation—O.H. said Charles wanted to see and touch her boobs. He also spoke of kissing, orgasm, blow jobs and Robin’s sex life. Robin testified she confronted Charles at home, he denied nothing, and "admitted to me that he did it[.]" Robin stated she went to bed first that night, leaving Charles in the living room, but he eventually came to the bedroom.

The next day, September 24, Charles and his nineteen-year-old son who also lives in the home, left for a collegiate golf tournament, returning two nights later, on September 26. Robin, the twins, Charles and his son were all home the nights of September 26, 27 and 28. Between September 23 and 28, there were times Charles was alone in the house with the twins.

Around 6:00 p.m. on September 28, 2017, Robin and the twins left home and sought refuge with Robin’s friend. The following day, Robin petitioned for the EPO on behalf of herself and the twins.

When testimony concluded, counsel for both parties argued the case. Thereafter, the trial court granted the DVO stating, "the definition under 403.720 Sexual Abuse,"⁵ has been met. The court went on to say:

I think, clearly, I hear fear from both Ms. Castle and [O.H.] that something in the future could happen or that -- you know, whether there’s fear that there would be retaliation for the stating of these events -- I understand that they're no

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