RENDERED: JUNE 16, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1525-ME
WILLIAM A. JONES APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LIBBY G. MESSER, JUDGE
ACTION NO. 21-D-01282-002
HANNA KROSKIE APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT,
JUDGES.
THOMPSON, CHIEF JUDGE: William Jones appeals from the Fayette Circuit
Court’s granting of an interpersonal protective order (IPO) in favor of Hanna
Kroskie. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
Appellee alleged that on October 18, 2021, Appellant sexually
assaulted her at a hotel. Appellant claimed no such assault occurred. At the time,
Appellant was the President of Georgetown College and Appellee was an
employee of the college. Appellant and Appellee were at the hotel for a work-
related event.
On November 1, 2021, Appellee petitioned for an IPO due to the
alleged sexual assault and a temporary order of protection was entered. A hearing
on the petition was then scheduled for November 10, 2021. The record is unclear
as to why, but the hearing was postponed until April 20, 2022. The temporary
protective order was to expire on May 1, 2022.
Prior to the April hearing, the parties agreed that neither would attend
the hearing and that the temporary protective order would be allowed to expire.
An agreed order was entered to this effect.
On April 28, 2022, Appellee filed another petition for an IPO.
Another temporary protection order was entered and a hearing was set for May 11,
2022. At that hearing, the court discussed that the original IPO petition had
expired. The court then scheduled a hearing for the new IPO petition for August
15, 2022. This date was later rescheduled.
A hearing finally occurred on October 31, 2022, and both Appellant
and Appellee testified. Appellee testified to the events prior to the sexual assault
and described the assault itself. Appellant testified that he could not remember
everything that occurred the evening of the alleged assault because he had been
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drinking; however, he was adamant that no sexual assault occurred. During the
hearing, social media posts, text messages, and surveillance video were discussed.
None of these were entered into evidence at that time; however, at the conclusion
of the hearing, the court indicated it would allow the parties to submit these items
into evidence and they would be considered. Ultimately, none of them were
submitted into evidence.
The parties returned to court on November 17, 2022, for closing
arguments. The court also orally announced that it was granting the IPO. That
same day, the IPO was entered. The written order stated that the court believed
Appellee was the more credible witness and the decision was based on her
testimony. This appeal followed.
ANALYSIS
Appellant raises multiple issues on appeal; however, the majority of
them are unpreserved. Appellant argues that the second petition for IPO should
have been dismissed based on res judicata and double jeopardy. He also argues
that the trial judge intentionally falsified information on the court document which
dismissed the first petition for IPO. Also, Appellant claims that the IPO hearing
was not held in a timely manner. None of these issues were raised before the trial
court; therefore, they are unpreserved. “The Court of Appeals is without authority
to review issues not raised in or decided by the trial court.” Regional Jail
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Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989); see also Shelton v.
Commonwealth, 928 S.W.2d 817, 818 (Ky. App. 1996). “[E]rrors to be considered
for appellate review must be precisely preserved and identified in the lower court.”
Skaggs v. Assad, by and through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citation
omitted).
The only issue raised by Appellant which is ripe for our review is that
the evidence was insufficient to grant the IPO.
Kentucky Revised Statute (KRS) 456.060(1) states that “[f]ollowing a
hearing . . . , if a court finds by a preponderance of the evidence that dating
violence and abuse, sexual assault, or stalking has occurred and may again occur,
the court may issue an interpersonal protective order[.]” “The preponderance of
the evidence standard is satisfied when sufficient evidence establishes the alleged
victim was more likely than not to have been a victim of . . . violence.” Dunn v.
Thacker, 546 S.W.3d 576, 580 (Ky. App. 2018) (citation omitted).
The family court’s findings of fact will only be
disturbed if clearly erroneous. [Kentucky Rules of Civil
Procedure (CR)] 52.01[.] A finding of fact is clearly
erroneous if it is not supported by substantial evidence.
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. We review questions of law de novo.
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
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that he abused his discretion. Abuse of discretion occurs
when a court’s decision is unreasonable, unfair, arbitrary
or capricious. [W]e give much deference to a decision by
the family court, but we cannot countenance actions that
are arbitrary, capricious or unreasonable.
Sewell v. Sweet, 637 S.W.3d 330, 334 (Ky. App. 2021) (internal quotation marks
and citations omitted).
In its role as factfinder, the trial court may
necessarily have to consider the credibility of each
witness. The trier of fact has the right to believe the
evidence presented by one litigant in preference to
another . . . [and] 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. On appeal, we are mindful of the trial court’s
opportunity to assess the credibility of each witness, and
as such, we would only alter the court’s findings if they
were clearly erroneous.
Id. at 335 (internal quotation marks and citations omitted).
In the case at hand, we believe there was substantial evidence to
support the trial court’s conclusion that a sexual assault had occurred. The only
evidence submitted to the court was the testimony of Appellant and Appellee. The
trial court found Appellee’s testimony to be the most credible and relied on that to
enter its judgment. The trial court did not err.
The court also held that a sexual assault may occur again. Appellee
testified that, although she was no longer working for Georgetown College, she
was still afraid of Appellant. She also testified that Appellant had made social
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media posts about her and she believed Appellant had become emboldened.1 This
testimony supports the idea that an assault could occur again and the trial court
specifically mentioned this testimony in its findings. When announcing its
findings orally after closing arguments, the court also considered the fact that there
is ongoing contact between Appellant and Appellee. While the court did not
elaborate, we believe this was in reference to the multiple civil lawsuits that are
ongoing and, at least partially, revolve around the alleged sexual assault. The
court’s conclusion that an assault could happen again is not clearly erroneous in
this case.
CONCLUSION
Based on the foregoing, we affirm the judgment of the circuit court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kyle T. Thompson Cheryl U. Lewis
Frankfort, Kentucky Hyden, Kentucky
1
We note that the social media posts were not entered into evidence; therefore, we do not know
the exact nature of the statements.
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