FROM HARDIN CIRCUIT COURT HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 16-CR-00551
FOR APPELLANT: Michael R. Mazzoli Louisville, Kentucky
Jeffrey A. Sexton Louisville, Kentucky
FOR APPELLEE: Andy Beshear Attorney General Mark D. Barry
Assistant Attorney General Frankfort, Kentucky
BEFORE: DIXON, NICKELL AND THOMPSON, JUDGES.
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.
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.
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.
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.
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.
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."
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.
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.
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 ...