Mitchell Wayne Steward, Sr. v. Joshua Alan Buckman

                    RENDERED: JUNE 18, 2021; 10:00 A.M.
                         NOT TO BE PUBLISHED

                Commonwealth of Kentucky
                          Court of Appeals

                              NO. 2020-CA-1559-ME

MITCHELL WAYNE STEWARD, SR.                                           APPELLANT


                   APPEAL FROM UNION CIRCUIT COURT
v.                 HONORABLE BRANDI ROGERS, JUDGE
                       ACTION NO. 19-D-00023-003


JOSHUA ALAN BUCKMAN                                                     APPELLEE


                                    OPINION
                                   AFFIRMING

                                  ** ** ** ** **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Mitchell Wayne Steward, Sr., appeals the Union Circuit

Court’s order upholding an Interpersonal Protective Order (IPO) granted to Joshua

Alan Buckman. We affirm.

             The parties, who are neighbors, have engaged in confrontational

behaviors for several years, at one point undergoing counseling to try to resolve

their ongoing conflict. The incident leading to the IPO occurred on the evening of
November 30, 2019, as Buckman was walking from his home to his mother’s

house, passing Steward’s property along the way. Steward, who had driven to the

end of his driveway to where Buckman was about to pass, assaulted Buckman with

the butt of a .357 Magnum pistol, causing Buckman to sustain severe head

injuries.1 Steward was not indicted on the criminal charges.

              On several occasions after the assault, Steward was observed

“spotlighting” Buckman’s house at night time and shouting obscenities at

Buckman. The problem became so severe that Buckman moved a horse trailer

between his home and the road to block the spotlight being shown into the

residence. Steward persisted, however, moving to a different location from which

to shine the spotlight. Steward denied the spotlighting allegations and submitted

cellular phone records to prove that his location was elsewhere on the dates

Buckman claimed the offenses occurred.

              Buckman obtained a temporary IPO on December 4, 2019. The

circuit court held a lengthy hearing on February 19, 2020. Multiple witnesses

testified, including the parties, and both parties presented documentary evidence.

Steward filed additional records post-hearing, after which the circuit court took the




1
  Buckman’s medical records indicate that he suffered two severe lacerations on the frontal scalp
(requiring sutures and staples to close the wounds) and a hematoma to the back of his head.

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matter under submission. It rendered its decision on May 12, 2020, entering

detailed findings of fact, conclusions of law, and a three-year IPO against Steward.

               Steward filed a motion, pursuant to Kentucky Rule of Civil Procedure

(CR) 59.05, to alter, amend, or vacate the IPO and requested the circuit court to

make additional findings.2 The parties briefed the issues. Steward’s motion was

denied on November 4, 2020. This appeal followed.

               We begin by enunciating our standard of review:

               [F]or an individual to be granted an IPO for stalking, he
               or she must at a minimum prove by a preponderance of
               the evidence that[] an individual intentionally engaged in
               two or more acts directed at the victim that seriously
               alarmed, annoyed, intimidated, or harassed the victim,
               that served no legitimate purpose, and would have caused
               a reasonable person to suffer substantial mental distress,
               and that these acts may occur again. KRS 508.130 and
               KRS 456.060. Additionally, the individual must prove
               that there was an implicit or explicit threat by the
               perpetrator that put the victim in reasonable fear of
               sexual contact, physical injury, or death. KRS 508.150.

Halloway v. Simmons, 532 S.W.3d 158, 162 (Ky. App. 2017).

               The preponderance of the evidence standard is met when
               “sufficient evidence establishes the alleged victim was
               more likely than not to have been a victim” of [] violence
               and abuse, sexual assault, or stalking. Dunn v. Thacker,
               546 S.W.3d 576, 580 (Ky. App. 2018) (citing Baird v.
               Baird, 234 S.W.3d 385, 387 (Ky. App. 2007)) (applying

2
  After the CR 59.05 motion was filed (May 26, 2020), Steward’s attorney moved to withdraw
(July 13, 2020), citing “irreconcilable difficulties.” The circuit court granted counsel’s motion,
affording Steward additional time to obtain new counsel. A briefing schedule was ordered on
August 17, 2020. These events explain the delay between the granting of the IPO and the order
denying the CR 59.05 motion.

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             the preponderance of the evidence standard in the context
             of issuance of a domestic violence order (“DVO”)).
Jones v. Jones, 617 S.W.3d 418, 423 (Ky. App. 2021).

             When we review a decision of the circuit court, “the test is not

whether the appellate court would have decided it differently, but whether the

findings of the family court are clearly erroneous, whether it applied the correct

law, or whether it abused its discretion.” Coffman v. Rankin, 260 S.W.3d 767, 770

(Ky. 2008) (citation omitted).

             With these standards in mind, we turn to Steward’s arguments on

appeal, beginning with his assertion that the circuit court’s findings of fact are

insufficient to support that Steward had engaged in a “course of conduct” required

for the granting of an IPO. Buckman responds that the circuit court’s findings are

supported by substantial evidence and should be upheld.

             Kentucky Revised Statute (KRS) 508.130 includes the applicable

definitions, namely:

             (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.



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                (b) The course of conduct shall be that which would
                cause a reasonable person to suffer substantial
                mental distress.

             (2) “Course of conduct” means a pattern of conduct
             composed of two (2) or more acts, evidencing a
             continuity of purpose. One (1) or more of these acts may
             include the use of any equipment, instrument, machine,
             or other device by which communication or information
             is transmitted, including computers, the Internet or other
             electronic network, cameras or other recording devices,
             telephones or other personal communications devices,
             scanners or other copying devices, and any device that
             enables the use of a transmitting device. Constitutionally
             protected activity is not included within the meaning of
             “course of conduct.” If the defendant claims that he was
             engaged in constitutionally protected activity, the court
             shall determine the validity of that claim as a matter of
             law and, if found valid, shall exclude that activity from
             evidence.

             The evidence of record of Steward’s continued confrontational

behavior (the initial assault followed by spotlighting, cursing, and verbal threats),

which included “two (2) or more acts” directed at Buckman, certainly supports the

circuit court’s finding that Steward had engaged in stalking which served no

legitimate purpose and caused Buckman “to suffer substantial mental distress.”

KRS 508.130(1)(a) and (b).

             After summarizing and analyzing the evidence at the hearing, the

circuit court stated:

             The Court has no doubt that these acts may occur again
             and [Buckman’s] request for protection is warranted.
             While [Steward] may protect his home and family, for

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             purposes of this action his decisions and subsequent
             spotlighting and harassment equates to stalking. In fact,
             his subsequent spotlighting and hollering that the police
             would not help [Buckman] would best be described as
             taunting itself with the intent to place [Buckman] in fear
             of more physical injury and/or death.

                   This must stop. While [Buckman] has an issue
             with alcoholism for which he certainly should seek
             treatment, he is reasonably in fear of physical injury or
             death. [Steward’s] hate for him is palpable. The Court
             hopes that the entry of this IPO will stave off any future
             encounters or threats. The Court finds the evidence
             substantially supports the conclusion that an IPO is
             necessary to protect [Buckman] from [Steward’s] actions.

             Steward fails to convince us that the circuit court’s findings are

clearly erroneous. Coffman, supra. We therefore decline the invitation to set them

aside.

             Steward secondly argues that the circuit court erred because

“inadmissible Constitutionally protected activity erroneously formed the basis of

the Court’s finding of a ‘course of conduct’ in this case.” Steward insists that his

words (specifically, when he advised Buckman to “call the police, Motherf*****,

they aren’t going to do anything”) were “merely a criticism of the ineffectiveness

of the local police force . . . [which did] not rise to the level of impermissible

Fighting Words.” Steward cites to the exclusion in KRS 508.130(2) for

“Constitutionally protected activity.”




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             We disagree. The statute also states: “If the defendant claims that he

was engaged in constitutionally protected activity, the court shall determine the

validity of that claim as a matter of law and, if found valid, shall exclude that

activity from evidence.” KRS 508.130(2). Here, the circuit court was not

convinced that Steward’s words were an expression of free speech but rather used

to intimidate Buckman. We find no error in this regard.

             Steward lastly urges that his activities were entitled to immunity as

self-protection. Again, the evidence does not support the argument. In each

instance, Steward moved to the problem: he drove to the end of his driveway and

assaulted Buckman on November 30, 2019. His later actions were not in reaction

to anything Buckman had done but instead were instigated by Steward himself.

Steward was not entitled to immunity.

             The order of the Union Circuit Court is affirmed.



             ALL CONCUR.



 BRIEF FOR APPELLANT:                       BRIEF FOR APPELLEE:

 JT Skinner                                 Ellen S. Bowles
 Morganfield, Kentucky                      Madisonville, Kentucky




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