GARY DURHAM APPELLANT v. SUSAN METZGER APPELLEE

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Court of Appeals of Kentucky.

GARY W. DURHAM APPELLANT v. SUSAN G. METZGER APPELLEE

NO. 2011–CA–001105–ME

Decided: May 04, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  CLAYTON AND STUMBO, JUDGES. BRIEF FOR APPELLANT:  Rob Eggert Louisville, Kentucky Annie O'Connell Louisville, Kentucky NO BRIEF FOR APPELLEE.

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Gary W. Durham brings this appeal from a Domestic Violence Order (DVO) entered against him in the Jefferson Circuit Court, Family Court Division, on May 26, 2011.   We affirm.

On May 18, 2011, Susan G. Metzger filed a domestic violence petition alleging that Durham had perpetrated acts of domestic violence and abuse against her.   In the petition, Metzger specifically alleged that two days earlier she and Durham were arguing when Durham “threw something and hit me.”   She also alleged that Durham “pushed me down and put a collaspable [sic] baton to my face and reared back like he was going to hit me with it.”   Metzger asserted that Durham previously hit her with “different items,” threatened her, and grabbed her by the ankle to pull her out of bed.   Metzger further claimed that she had recently reported Durham to the authorities after discovering child pornography on his computer.   As a result, Metzger claimed she was “afraid of what [Durham] is going to do” to her when he learned of the report.

A hearing was held on the petition, and Metzger testified on her own behalf.   Upon cross-examination, Metzger stated that she dated Durham for approximately fourteen months and moved in with Durham about one week prior to filing the domestic violence petition.   Metzger stated that she remained at Durham's residence for two nights following the most recent incident of domestic violence.   Counsel then began questioning Metzger about where she slept those two nights and whether she had engaged in consensual sexual relations with Durham.   At that point, the family court interjected and discussed with counsel the relevancy of the questions.   The family court ultimately determined that such evidence was irrelevant.   At the conclusion of the hearing, the family court found that Durham had engaged in domestic violence and abuse against Metzger and issued a domestic violence order.   This appeal follows.

Domestic violence proceedings are creatures of statutory law;  thus, our analysis begins with an examination of the relevant statutory provisions.   Kentucky Revised Statutes (KRS) 403.750 provides that a family court may issue a DVO only if the court finds by a preponderance of the evidence that acts of domestic violence and abuse have occurred and may occur in the future.   Domestic violence and abuse is defined in KRS 403.720(1) as follows:

“Domestic violence and abuse” means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]

Our standard of appellate review of a family court's finding of domestic violence is under the clearly erroneous standard.   Kentucky Rules of Civil Procedure (CR) 52.01;  Caudill v. Caudill, 318 S.W.3d 112 (Ky.App.2010).   A finding of fact is clearly erroneous if not supported by substantial evidence of a probative value.  Caudill, 318 S.W.3d 112.   We, of course, review issues of law de novo.

Durham contends the family court erred by finding that he committed acts of domestic violence and abuse under KRS 403.750.   Durham specifically contends the family court erred by excluding Metzger's testimony regarding whether she engaged in consensual sexual relations with Durham following the most recent incident of domestic violence.   Durham argues that the testimony was relevant upon Metzger's state of mind and specifically upon whether she was in fear of imminent physical injury.   We disagree.

Relevant evidence is generally admissible under Kentucky Rules of Evidence (KRE) 402.   Relevant evidence is defined in KRE 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.”   Relevant evidence, however, may be excluded if the probative value of the evidence is outweighed by undue prejudice per KRE 403.

Appellate review of evidentiary issues involves a two-step analysis.   Initially, our review of the family court's decision to admit or exclude evidence is limited to abuse of discretion.  Clephas v. Garlock, Inc., 168 S.W.3d 389 (Ky.App.2004).   An abuse of discretion occurs when the family court's decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles”.  Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).   If the family court abuses its discretion by admitting or excluding evidence, we then must determine whether said error constituted harmless error or reversible error.   To constitute reversible error, the substantial rights of a party must be affected.  KRE 103.   Stated differently, there must exist a reasonable probability that the outcome of the proceedings would have been different absent the error.  Hawkins v. Rosenbloom, 17 S.W.3d 116 (Ky.App.1999).

In the case at hand, Durham sought to introduce evidence that Metzger had consensual sexual relations with him in the two days following the recent incident of domestic violence.   At the hearing, Counsel for Durham specifically asked Metzger whether she had slept in the same bed with Durham following the last incident of domestic violence.   Metzger responded that the first night she slept in another room.   Counsel then asked Metzger whether she had “sex” with Durham, and she replied “I am sorry – I don't remember – I don't know.”   Upon further questioning, she said “I would have to say no.”   Counsel subsequently asked Metzger where she “slept” the second night, and she replied “I probably slept with him – I think I did – yes.”   Counsel responded “you think you did or you did?”   At this point, the family court interpreted the questioning and ultimately determined that it was irrelevant whether Metzger had slept with Durham following the last incident of domestic violence.

We cannot say the court erred by concluding that such evidence was inadmissible per KRE 402.   Simply stated, the fact that Metzger engaged in consensual sexual relations with Durham does not a fortiori make it more or less probable that Metzger was in fear of imminent physical injury from Durham.   And, even if such evidence were relevant, its prejudicial effect would far outweigh any slight probative value, thus mandating its exclusion.  KRE 403.   Moreover, during her testimony, Metzger admitted that she slept in the same bedroom with Durham on the second night after the alleged domestic violence.   Thus, evidence was admitted during the hearing bearing upon her state of mind after the incident.   Upon the whole, we cannot conclude that the family court abused its discretion by excluding such evidence.

Durham also contends the evidence regarding consensual sexual relations between himself and Metzger was admissible to impeach Metzger's credibility as a witness.   In support thereof, Durham argues that “Metzger initially testified that she could not remember whether she had slept with Mr. Durham following the baton incident.   Minutes later, she corrected herself and stated she had, indeed, engaged in sex with Mr. Durham.   These inconsistent statements reflect on the witness's credibility․”

Upon review of the video recording, it is apparent that Metzger did not state that she engaged in consensual sexual relations with Durham.   In fact, when specifically asked if she had “sex” with Durham, Metzger responded in the negative.   And, when asked where she slept the second night, Metzger stated she slept with Durham.   The family court heard Metzger's entire testimony including her responses to these two specific questions and was free to judge her credibility.   Upon the whole, we simply cannot say the family court abused its discretion by excluding such evidence.

Durham's final contention is that the family court erred by taking judicial notice of statistical evidence to justify excluding evidence of consensual sexual relations of Durham and Metzger after the last incident of domestic violence.   Durham specifically alleges that the family court improperly took judicial notice of a fact not in evidence when the court stated that whether “an intimate partner continues to remain in the relationship [doesn't prove or disprove] ․ whether there is abuse or not, statistically.”   As we have previously determined that such evidence was properly held inadmissible per KRE 402 or KRE 403, we view this contention as moot.

For the foregoing reasons, the Order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

TAYLOR, CHIEF JUDGE: