In re W.J.

1

NOT DESIGNATED FOR PUBLICATION

No. 119,983

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

B.Y.,
Appellant,

v.

D.M.,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; THOMAS G. LUEDKE, judge. Opinion filed May 31, 2019.
Affirmed in part, reversed in part, and remanded with directions.

Ryan M. Brungardt, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, for
appellant.

Thomas G. Lemon, of Cavanaugh, Biggs & Lemon, P.A., of Topeka, for appellee.

Before MALONE, P.J., SCHROEDER, J., and MCANANY, S.J.

PER CURIAM: B.Y. appeals the dismissal of her petition for protection from
stalking or sexual assault against D.M. B.Y. claims the district court erred because: (1)
she proved that D.M. committed a sexual assault against her, and (2) she proved that
D.M. engaged in a course of conduct to support a protection from stalking order. Based
on the evidence presented at the hearing and applying our standard of review, we find
that the district court did not err in dismissing B.Y.'s petition for a protection from
stalking order. But we find that the district court erred in dismissing the petition for
protection from sexual assault because the district court misapplied the statutory
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definition of sexual assault. Thus, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On May 3, 2018, B.Y. filed a pro se petition for protection from stalking or sexual
assault against D.M. Although not in the record on appeal, B.Y. also filed a protection
from stalking petition against D.M.'s girlfriend, L.G.

At the hearing on August 2, 2018, B.Y. testified that she moved to Topeka in
September 2017 to flee from her ex-partner's domestic violence, with whom she shared
one child and was then pregnant with a second child. B.Y. is a veteran of the United
States Navy and she obtained a job at Veterans Affairs in Topeka, Kansas. Eventually,
B.Y. became involved with the Combat Veterans Motorcycle Association (CVMA) in
which D.M. was an active member. In February 2018, B.Y. attended a CVMA meeting
along with J.S., her daughter's Girl Scout troop leader, at D.M.'s invitation.

Alleged sexual assault on February 24, 2018

On February 24, 2018, J.S. invited the Girl Scout troop mothers over to her house
for a "wine night." B.Y. attended and had a babysitter watch her children. She brought
two bottles of wine; she drank one bottle and opened the second but was unsure how
much wine she drank from the second bottle. After a few hours, J.S., her husband, and
B.Y. went to a local bar located about a block from B.Y.'s home. J.S. testified that she
invited D.M. to join them because she did not want her husband to feel like a third wheel.
B.Y. also admitted that she texted D.M. to come to the bar after J.S. had invited him.
B.Y. denied having a romantic interest in D.M.

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B.Y. testified that she drank two shots of alcohol and five rum and cokes at the
bar. J.S. and her husband left B.Y. and D.M. at the bar at about 12:30 a.m. J.S. testified
that when she left, B.Y. appeared sloppy drunk, was slurring her words, and had trouble
following B.Y.'s conversation. Originally, B.Y. had planned to walk home from the bar
or use a ride-sharing service. But D.M. told J.S.'s husband that he would make sure B.Y.
made it home.

B.Y. left the bar around 2 a.m., and she remembered getting money from an ATM.
The next thing B.Y. remembered was waking up to her daughter opening her bedroom
door while D.M. was performing oral sex on her. On cross-examination, B.Y. stated that
D.M. also had sexual intercourse with her. B.Y. testified that she did not consent to
having sex with D.M. B.Y. also confirmed on cross-examination that she went to a doctor
three days after the incident because she started bleeding. B.Y. admitted that she told the
doctor that she had not had sex since October of the previous year. B.Y. testified that she
did not tell the doctor about the assault because she did not want to report a sexual assault
or have the doctor report a sexual assault.

B.Y. filed a police report in April 2018. She testified that she waited because she
was afraid that a police report would allow her ex-partner to find her and because she felt
that she had drank too much alcohol that night. B.Y. testified that she changed her mind
when D.M. became obsessive and started to retaliate against her at her work and within
the CVMA after she told a few leaders what had happened. B.Y. also stated that D.M.
acted like they were in a romantic relationship, while she tried to keep their relationship
professional.

After B.Y.'s direct examination, the district court dismissed the protection from
stalking petition against L.G. for insufficient evidence. And at D.M.'s request, the district
court dismissed the protection from stalking petition against D.M., finding that B.Y. had
not presented sufficient evidence to support an order. After these two rulings, D.M.
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proceeded to cross-examine B.Y., and B.Y. called J.S. to testify. D.M. did not present any
additional evidence other than some exhibits.

At the end of the hearing, the district court denied B.Y.'s protection from sexual
assault petition against D.M. In reaching its decision, the district court reasoned that
while a crime may have been committed, the statute dealt with protection from a
continuing conduct and no evidence showed that B.Y. feared a future sexual assault or
that D.M. had engaged in a continuing course of sexual assault against B.Y. The district
court entered a written order of dismissal finding that B.Y. had not met her burden by a
preponderance of the evidence. B.Y. timely appealed.

On appeal, B.Y. first argues that the district court erred in dismissing her
protection from stalking action for failure to establish the statutory "course of conduct"
requirement. She next argues that the district court erred in dismissing her protection
from sexual abuse case by requiring two or more instances of sexual abuse. We will
address these claims in reverse order.

Generally, a challenge to the sufficiency of the evidence requires an appellate
court to review the district court's factual findings to determine whether substantial
competent evidence supports the legal conclusions. Wentland v. Uhlarik, 37 Kan. App.
2d 734, 736, 159 P.3d 1035 (2007). Appellate courts exercise unlimited review when
reviewing the district court's conclusions of law. 37 Kan. App. 2d at 736. "'Substantial
evidence is such legal and relevant evidence as a reasonable person might accept as
sufficient to support a conclusion.'" Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d
1196 (2014). "We do not reweigh the evidence or make our own credibility
determinations, and we generally view the evidence in the light most favorable to the
party who prevailed in the district court." Kerry G. v. Stacy C., 53 Kan. App. 2d 218,
221-22, 386 P.3d 921 (2016).

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DID THE DISTRICT COURT ERR IN DISMISSING THE PROTECTION
FROM SEXUAL ASSAULT PETITION?

In denying B.Y.'s protection from sexual assault petition against D.M., the district
court reasoned that while a crime may have been committed, the statute dealt with
protection from a continuing conduct and no evidence showed that B.Y. feared a future
sexual assault or that D.M. had engaged in a continuing course of sexual assault against
B.Y. The district court entered a written order of dismissal finding that B.Y. had not met
her burden of proof by a preponderance of the evidence.

Resolving whether the district court erred in dismissing the protection from sexual
assault petition largely centers upon the statutory interpretation of the Protection from
Stalking or Sexual Assault Act (the Act). See K.S.A. 2017 Supp. 60-31a01. K.S.A. 2017
Supp. 60-31a01(b) requires Kansas courts to liberally construe the Act "to protect victims
of stalking and sexual assault and to facilitate access to judicial protection for stalking
and sexual assault victims, whether represented by counsel or proceeding pro se." This
court exercises unlimited review over questions of statutory interpretation. Nauheim v.
City of Topeka, 309 Kan. 145, Syl. ¶ 1, 432 P.3d 647 (2019).

"The fundamental rule of statutory interpretation to which all other rules are
subordinate is that the intent of the legislature governs if that intent can be ascertained. Its
intent is to be derived in the first place from the words used. When statutory language is
plain and unambiguous, there is no need to resort to statutory construction. An appellate
court merely interprets the language as it appears; it is not free to speculate and cannot
read into the statute language not readily found there." State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, Syl. ¶ 4, 367 P.3d 282 (2016).

The Kansas Legislature amended the Protection from Stalking Act in 2017 to
include protection from sexual assault orders, and the Act became the Protection from
Stalking or Sexual Assault Act. See K.S.A. 2017 Supp. 60-31a01(a); L. 2017, ch. 66, § 3.
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Effective July 1, 2018, the Legislature amended the Act to include orders for protection
from human trafficking, changing the name of the Act to the Protection from Stalking,
Sexual Assault, or Human Trafficking Act. See K.S.A. 2018 Supp. 60-31a01(a); L. 2018,
ch. 110, § 4. Because B.Y.'s petition covers allegations of stalking and sexual assault
before July 1, 2018, we will interpret her claims under the 2017 amendments to the Act.

The Act defines a sexual assault as: "(1) A nonconsensual sexual act; or (2) an
attempted sexual act against another by force, threat of force, duress or when the person
is incapable of giving consent." K.S.A. 2017 Supp. 60-31a02(a)(1)-(2). The Act defines
stalking with three interrelated definitions of stalking, harassment, and course of conduct.
See C.M. v. McKee, 54 Kan. App. 2d 318, 321, 398 P.3d 228 (2017). K.S.A. 2017 Supp.
60-31a02 states in relevant part:

"(b) 'Stalking' means an intentional harassment of another person that places the
other person in reasonable fear for that person's safety.
"(c) 'Harassment' means a knowing and intentional course of conduct directed at
a specific person that seriously alarms, annoys, torments or terrorizes the person, and that
serves no legitimate purpose. . . .
"(d) 'Course of conduct' means conduct consisting of two or more separate acts
over a period of time, however short, evidencing a continuity of purpose which would
cause a reasonable person to suffer substantial emotional distress. Constitutionally
protected activity is not included within the meaning of 'course of conduct.'"

In dismissing B.Y.'s petition for protection from sexual assault, the district court
reasoned that while a crime may have been committed, the statute dealt with protection
from a continuing conduct and no evidence showed that B.Y. feared a future sexual
assault or that D.M. had engaged in a continuing course of sexual assault against B.Y.
This reasoning reflects that the district court erred in interpreting the definition of sexual
assault in K.S.A. 2017 Supp. 60-31a02(a). From the language in the statute, the
Legislature has defined a sexual assault as requiring proof of one sexual assault. The
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definition contains no language requiring a future fear or a course of conduct. Unlike the
stalking definition—that incorporates three terms into one definition—the definition of
sexual assault incorporates no other terms. Instead, K.S.A. 2017 Supp. 60-31a02(a)(1)-(2)
alone defines the elements of a sexual assault.

Thus, the district court erred in finding that B.Y. needed to show a fear of a future
sexual assault or that D.M. had engaged in a course of conduct of sexual assault against
her. The unambiguous language of K.S.A. 2017 Supp. 60-31a02(a) requires proof of one
act of sexual assault—a nonconsensual sexual act or an attempted sexual act against
another by force, threat of force, duress, or when the person is incapable of giving
consent. K.S.A. 2017 Supp. 60-31a02(a)(1)-(2); see K.S.A. 2017 Supp. 60-31a05.

B.Y. claims the district court erroneously dismissed her petition based solely on a
lack of evidence showing two or more instances of sexual assault, while D.M. argues that
B.Y. failed to present sufficient evidence to support even one instance of sexual assault.
This is an issue we cannot resolve on appeal without reweighing the evidence. There was
some evidence at the hearing to support D.M.'s assertion that B.Y. failed to present
sufficient evidence to support even one instance of sexual assault. For instance, B.Y.
confirmed that she went to a doctor three days after the February 24, 2018 incident, and
she did not tell the doctor about the assault. Likewise, B.Y. did not file a police report
until April 2018. It is not clear from the record whether the district court would have
granted B.Y.'s petition for protection from sexual assault against D.M. even if the district
court had applied the correct statutory definition of sexual assault.

Thus, we find that the district court erred in dismissing B.Y.'s petition for
protection from sexual assault for the reasons given by the district court at the hearing.
We reverse the district court's order denying the petition for protection from sexual
assault and remand with directions for the district court to reevaluate the evidence based
on the correct statutory definition of sexual assault in K.S.A. 2017 Supp. 60-31a02(a).
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DID THE DISTRICT COURT ERR IN DISMISSING THE PROTECTION
FROM STALKING PETITION?

B.Y. argues that she presented sufficient evidence that D.M. engaged in a course
of conduct to support her stalking allegation. As we have already discussed, the statutory
definition of a sexual assault does not require a course of conduct but the statutory
definition of stalking incorporates "harassment," which requires a course of conduct. See
K.S.A. 2017 Supp. 60-31a02(b), (c), (d).

After B.Y.'s direct examination, the district court dismissed the protection from
stalking petition, finding that B.Y. had not presented sufficient evidence to support an
order. A finding that a party did not meet its burden of proof is a negative factual finding.
In reviewing a negative factual finding, the appellate court must consider whether the
district court arbitrarily disregarded undisputed evidence or relied on some extrinsic
consideration such as bias, passion, or prejudice to reach its decision. Cresto v. Cresto,
302 Kan. 820, 845, 358 P.3d 831 (2015).

The district court did not make specific findings of fact in concluding that B.Y. did
not meet her burden of proving the stalking allegation. But B.Y. lodged no objection
below to the lack of factual findings. "Where no objection is made, this court will
presume the trial court found all facts necessary to support its judgment. However, this
court may still consider a remand if the lack of specific findings precludes meaningful
review." Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006).

B.Y. asserts that she established a course of conduct to prove stalking because, in
addition to her testimony about nonconsensual oral sex, she also alleged that
nonconsensual intercourse occurred on February 24, 2018. But we note that B.Y. did not
testify about the alleged nonconsensual intercourse until her cross-examination which
was after the district court had dismissed the protection from stalking petition. In any
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event, we find that one instance of sexual assault involving both nonconsensual oral sex
and nonconsensual intercourse does not constitute a "course of conduct" to establish
stalking within the meaning of K.S.A. 2017 Supp. 60-31a02(b), (c), and (d).

B.Y. also asserts that she established a course of conduct to support stalking based
on her testimony about workplace harassment and harassment within the CVMA together
with the alleged sexual assault. We agree with B.Y. that the allegation of workplace
harassment and harassment within the CVMA together with the allegation of the sexual
assault would constitute a course of conduct to support a stalking petition if the claims
were supported by sufficient evidence.

In Smith v. Martens, 279 Kan. 242, 251, 106 P.3d 28 (2005), our Supreme Court
interpreted the constitutionality of the stalking definition, including the definition of
harassment, and explained that the definition had two objective standards:

"[T]he determination that a person is seriously alarmed, annoyed, tormented, or terrorized
is not based solely upon the subjective conclusion of the victim and whether a reasonable
person would suffer substantial emotional distress, but also upon the additional objective
standard of whether a reasonable person would fear for his or her safety based upon the
intentional conduct."

B.Y. testified that D.M. sent emails to her work, so she contacted him and asked
him to stop. She also stated that she stopped attending the CVMA events as a result of
D.M.'s harassment. But the overall lack of evidence describing D.M.'s retaliation makes it
difficult to conclude that his harassment of B.Y. after the alleged sexual assault meets the
objective standards to satisfy the definition of stalking—that a reasonable person would
suffer substantial emotional distress and would fear for his or her safety based on D.M.'s
intentional conduct. See Martens, 279 Kan. at 251. And as we have already discussed, it
is not clear from the record whether the district court found that B.Y. presented sufficient
evidence to establish a sexual assault. The burden was on B.Y. to establish stalking by a
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preponderance of the evidence, and the district court found that B.Y. had not presented
sufficient evidence to support a protection order.

Finally, in one sentence of her brief, B.Y. asserts that because D.M. chose not to
testify and refute her testimony, the district court must construe the evidence against him.
B.Y. offers no legal authority to support this claim. A point raised incidentally in a brief
and not supported with any authority is deemed abandoned. Russell v. May, 306 Kan.
1058, 1089, 400 P.3d 647 (2017). We conclude that the fact that D.M. did not testify does
not affect our standard of review in this appeal.

To sum up, the district court dismissed the protection from stalking petition,
finding that B.Y. had not presented sufficient evidence to support an order. In making
this negative factual finding, the district court did not arbitrarily disregard undisputed
evidence and the court did not rely on some extrinsic consideration such as bias, passion,
or prejudice to reach its decision. See Cresto, 302 Kan. at 845. At the very least, we must
view the evidence in the light most favorable to D.M. as the prevailing party. See Kerry
G., 53 Kan. App. 2d at 221-22. Based on the evidence presented and our standard of
review, we cannot find that the district court erred in dismissing B.Y.'s protection from
stalking petition against D.M.

Affirmed in part, reversed in part, and remanded with directions.