FROM ROWAN CIRCUIT COURT HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 17-D-00110-001
FOR APPELLANT: Paula Richardson Marsha Megan Hughes Richmond
BRIEF FILED FOR APPELLEE
BEFORE: JONES, NICKELL AND TAYLOR, JUDGES.
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.,
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,
the law, we reverse and direct entry of a new judgment.
AND PROCEDURAL BACKGROUND
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.
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.
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?
Atty Describe what occurred -- when -- what was the date, to
the best of your knowledge, of that occurrence, and describe
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
. . .
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
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
O.H. Uncomfortable. I don't want to be around him.
I'm mad, mostly, but scared, too.
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.
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 ...