Karsner v. Commonwealth

• Decision Date: 30 November 2018
• Docket Number: NO. 2017-CA-000927-MR,2017-CA-000927-MR
• Citation: 582 S.W.3d 51
• Parties: Patricia KARSNER, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: Kentucky Court of Appeals

582 S.W.3d 51

Patricia KARSNER, Appellant

v.COMMONWEALTH of Kentucky, Appellee

NO. 2017-CA-000927-MR

Court of Appeals of Kentucky.

NOVEMBER 30, 2018; 10:00 A.M.

Discretionary Review Denied September 18, 2019

Discretionary Review Denied by Supreme Court September 18, 2019

BRIEFS FOR APPELLANT: Michael R. Mazzoli, Louisville, Kentucky, Jeffrey A. Sexton, Louisville, Kentucky.

BRIEF FOR APPELLEE: Andy Beshear, Attorney General, Mark D. Barry, Assistant Attorney General, Frankfort, Kentucky.

BEFORE: DIXON, NICKELL AND THOMPSON, JUDGES.

OPINION

THOMPSON, JUDGE:

Patricia Karsner was convicted of custodial interference following a jury trial and sentenced to one-year imprisonment. We conclude Karsner was entitled to a directed verdict of acquittal and reverse.

Karsner and Warren Tooley are the parents of two children, E.E. born on August 26, 1999, and S.J. born on December 21, 2000. On September 21, 2015, the children, who were fourteen and sixteen years old, lived in Radcliff with Karsner, where they had resided for two years. Prior to that, they lived with Tooley in Louisville for six to seven years.

On September 21, 2015, following a hearing, the Jefferson Family Court issued an order granting immediate custody to Tooley finding that the children were seriously endangered in Karsner’s custody and it was in the children’s best interests that Tooley be given immediate custody. The order further stated that Karsner was to immediately relinquish custody to Tooley and that interference of any kind by Karsner "shall be punishable as a contempt, and may constitute custodial interference." Although Karsner was notified of the hearing, she did not attend.¹

With the order in hand, on September 21, 2015, Tooley sought the assistance of the Radcliff Police Department to enforce the order. Sergeant Jarett Kirkpatrick looked at the order, which he found to be "different," and agreed to assist Tooley with the transfer of the children. Kirkpatrick and two other officers went with Tooley to Karsner’s home.

When Tooley and the officers arrived, they were met at the front door by Michael Nation, Karsner’s boyfriend. Tooley informed Nation that he had a court order to take the children. Karsner was not home at the time but the children were. E.E. was on the first floor, close enough to hear Nation speaking. S.J., who had been upstairs, came downstairs and also heard the conversation.

Sergeant Kirkpatrick testified that S.J. became upset and was crying. He testified he could have taken her at that point but chose not to believing it would be "unprofessional."

In the meantime, Nation phoned Karsner and informed her what was happening. While waiting for Karsner to arrive, Nation attempted to calm the children and assured them it would be worked out. He then directed the children to wait in the kitchen at the rear of the house.

Karsner arrived approximately five minutes later. She was shown the order and told to relinquish the children. Karsner responded: "I'm not going to do that." Sergeant Kirkpatrick informed her that she could be held in contempt of court and Karsner repeated she would not give custody of the children to Tooley or Sergeant Kirkpatrick and ordered them to leave her property. Sergeant Kirkpatrick testified that Karsner continued to defy his instruction for about ten to fifteen minutes.

The officers concluded their encounter with Karsner without arresting her and without taking the children. They told Tooley he could return to family court or talk with his attorney. After speaking with his attorney, Tooley went to the Hardin County Attorney’s Office that same day, where he filed a criminal complaint for custodial interference against Karsner. A warrant was not issued until 1:23 p.m. on September 23.

E.E. testified that at some point during the encounter among Karsner, Tooley and the officers, she and her sister ran away from the home because they did not want to go with Tooley. She testified they left through the back door and no one saw them leave. E.E. further testified she and S.J. stayed away from home the next two days, sleeping in the car of E.E.’s boyfriend and avoiding Karsner’s calls. E.E. testified she and S.J. returned home on September 23, 2015, sometime after 11:00 a.m. and Karsner called the police to report the children had returned.

Nation testified he and Karsner discovered the children were missing when they went into the home to tell them they would have to stay with Tooley until the matter could be resolved in family court. Although he testified Karsner called police to report the children missing, there was no evidence of that report introduced at trial.

At 3:25 p.m. on September 23, 2015, two Radcliff police officers arrived at Karsner’s home and arrested Karsner. The children were then placed in Tooley’s custody.

Karsner raises various issues on appeal. However, because we conclude she was entitled to a directed verdict of acquittal, we do not address the remaining issues.

Karsner argues the Commonwealth failed to produce sufficient proof to establish the crime of custodial interference. Her argument was properly preserved by a motion for directed verdict of acquittal at the conclusion of the Commonwealth’s proof and at the close of the case as well as in her written motion for judgment notwithstanding the verdict.

"[W]here a motion for directed verdict has been denied, the question on appeal is whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond...