                                                        In the
                                 Missouri Court of Appeals
                                             Western District
C.L.,                                                         )
                                                              )
                     Respondent,                              )   WD79007
                                                              )
v.                                                            )   OPINION FILED: August 9, 2016
                                                              )
KENNETH WAYNE HARTL,                                          )
                                                              )
                      Appellant.                              )

                  Appeal from the Circuit Court of Jackson County, Missouri
                           The Honorable S. Margene Burnett, Judge

 Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                             and Gary D. Witt, Judge


        Appellant, Kenneth Wayne Hartl ("Hartl"), appeals from the judgment of the

Circuit Court of Jackson Country granting a full order of protection to Respondent, C.L.

("C.L.")1. In his sole point on appeal, Hartl argues that the circuit court erred in granting

the order because C.L. failed to prove, by a preponderance of the evidence, that Hartl's

actions constituted domestic violence or stalking. We affirm.




        1
            Pursuant to section 566.226, we refer to respondent by initials to protect her identity.
                                     Factual and Procedural History2

         After dating since 2011, C.L. moved out of her shared residence with Hartl on

March 7, 2015. A few weeks later, on April 17, C.L. informed Hartl, in person, that she

was "done" with their relationship, and blocked his number on her phone. Three days

later, on April 20, Hartl showed up at C.L.'s house, parked in her driveway, blocked her

car in so she could not leave, and insisted they talk. For the next month, C.L. and Hartl

tried, and failed, to make the relationship work by attending counseling together. C.L.

once again told Hartl that she did not want to have any contact with him. After that, on

May 22, C.L. opened the door to her home to let her dog in, at which time Hartl "lunge[d]

around, pulled the door open, force[d] his way in and grabbed my hand up." She was

able to get away from his grasp and out onto the deck. She told him to get off her

property and that the relationship was done.

         The following incidents occurred in the subsequent two months:

              May 22 - 28: C.L. parked behind a neighbor's house, climbed over the back

                 fence, and snuck in and out of her back door to make it appear that she was

                 not home.

              Neighbors reported that they saw Hartl's car drive by C.L.'s residence

                 multiple times.




         2
            On appeal from a bench trial, an appellate court views the facts in the light most favorable to the trial
court's judgment. Sauvain v. Acceptance Indem. Ins. Co., 437 S.W.3d 296, 302 n2 (Mo. App. W.D. 2014).


                                                            2
 June 11: Hartl knocked on C.L.'s door for thirty minutes while talking loudly

   to her through the door. He called her twice leaving voicemails, and parked

   his car blocking her driveway prevented C.L. from leaving in her car.

 June 13: C.L. saw Hartl drive by her house "about ten times."

 June 15: Hartl called C.L. and left a voicemail.

 June 16: Hartl called C.L. and left a voicemail.

 June 18: Hartl showed up, uninvited, to the funeral and graveside services of

   C.L.'s mother, and continually asked C.L. to talk. Later that night, he drove

   by her house twice.

 June 19: C.L. received a three page letter from Hartl discussing "how [their]

   life could be together," as well has informing her that he bought them

   concert tickets together for a concert in July. Hartl also called C.L. and left

   a voicemail.

 June 20: Hartl drove in front of C.L.'s house.

 June 24: Hartl knocked on C.L.'s door for seven minutes. She introduced a

   time stamped photo of his car in the neighbor's driveway and a recording on

   her phone of him talking at her door, as well as a voicemail from that day.

 June 26: Hartl drove past C.L.'s home twice in the morning. He was later

   seen driving on a street parallel to a friend's house that C.L. was visiting.

   The street is not a main street through town.




                                   3
           June 27: Hartl forced his way into C.L.'s home, "pushing [her] back against

             the wall, grabbing [her] hands with one hand at [her] wrist."            As she

             attempted to run out of the back of the house, she tried to push the burglar

             button on her alarm system. The button did not work so she called the

             police, who took a report.

           June 28: C.L. received a phone call from a neighbor informing her that Hartl

             had driven by her house twice in the morning. C.L. also saw Hartl drive by

             her house later that night.

       On June 30, 2015, C.L. filed a petition seeking an Order of Protection against

Hartl in the Circuit Court of Jackson County. An ex parte order of protection was issued

pending a hearing. A bench trial occurred on August 12, 2015. The circuit court granted

C.L. the full order of protection, stating that "[d]espite the fact there has not been verbal

threats, there has been enough physical contact and repeated physical contact to the

petitioner that her fear is a reasonable fear." Hartl appeals.

                                    Standard of Review

       "The appellate court will sustain the trial court’s order unless it is not supported by

substantial evidence, it is against the weight of the evidence, or it erroneously declares or

applies the law." Wallace v. Van Pelt, 969 S.W.2d 380, 382 (Mo. App. W.D. 1998).

This court gives deference to the circuit court's findings of credibility, and only considers

those facts and reasonable inferences therefrom supporting the decision. Id. at 383.

"Because the trial judge is in the best position to gauge the credibility of the witnesses, in



                                              4
cases under the Adult Abuse Act, the discretion of the trial court should not often be

superseded." Id.

                                                  Discussion

       In his sole point on appeal, Hartl argues that an order of protection cannot be

granted because C.L. "failed to prove by a preponderance of the evidence that [Hartl's]

actions constituted domestic violence . . . or 'stalking.'. . . because [she] testified that

[Hartl] never abused her or placed her in fear for her safety and she was not actually in

fear for her safety."

       "Any person who has been subject to domestic violence by a present or former

family or household member, or who has been the victim of stalking or sexual assault,

may seek relief . . . by filing a verified petition alleging such domestic violence, stalking

or sexual assault by the respondent." Section 455.020.13. "[I]f the petitioner has proved

the allegation of domestic violence, stalking, or sexual assault by a preponderance of the

evidence, and the respondent cannot show that his or her actions alleged to constitute

abuse were otherwise justified under the law, the court shall issue a full order of

protection [ . . . .]" Section 455.040 (emphasis added). "'Preponderance of the evidence'

is defined as that degree of evidence that 'is of greater weight or more convincing than the

evidence which is offered in opposition to it; that is, evidence which as a whole shows

the fact to be proved to be more probable than not.'" Suhr v. Okorn, 83 S.W.3d 119, 121

(Mo. App. W.D. 2002) (quoting State Bd. Of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo.

App. W.D. 2000)).

       3
           All statutory references are to RSMo 2000 cumulative as currently supplemented, unless otherwise noted.

                                                         5
         There are multiple ways to obtain an order of protection under the Adult Abuse

Act. According to the statute, "domestic violence" occurs when "abuse or stalking [is]

committed by a family or household member [ . . . . ]" Section 455.010.5.4 A number of

actions constitute the term "abuse," which includes, but is not limited to: assault and

harassment. Section 455.010.1. "Assault" is defined as "purposely or knowingly placing

or attempting to place another in fear of physical harm."                              Section 455.010.1(a).

"Stalking" is defined by statute as "when any person purposely engages in an unwanted

course of conduct that causes alarm to another person . . . [and] when it is reasonable in

that person’s situation to have been alarmed by the conduct." Section 455.010.14. The

term "alarm" is defined as to "cause fear of danger of physical harm."                                     Section

455.010.14(a). Unlike harassment, the petitioner does not have to be personally alarmed,

and only needs to show that a reasonable person would be alarmed.                                          Section

455.101(1)(d); See Patterson v. Pilot, 399 S.W.3d 889, 895 (Mo. App. S.D. 2013). The

unwanted behavior must be repeated "over a period of time, however short, [and] serves

no legitimate purpose." Section 455.010(14)(b). "For conduct to have 'no legitimate

purpose,' it must be found to be not sanctioned by law or custom, to be unlawful, or not

allowed." Lawyer v. Fino, 459 S.W.3d 528, 533 (Mo. App. S.D. 2015) (citation omitted).

         In his sole point on appeal, Hartl argues that the order of protection should not

have been granted because C.L. failed to prove she was in fear for her physical safety.

Assault and stalking both require a fear of physical safety.                           Hartl bases his entire

         4
          A "household member" is considered, among other things, a person or persons "who are presently residing
together or have resided together in the past, any person who is or has been in a continuing social relationship of a
romantic or intimate nature with the victim." Section 455.010.7.

                                                         6
argument on a single statement made by C.L. during her testimony. When asked about

the June 11 incident,5 C.L. stated that "[she] felt safe herself, but [she] was just mad."

Therefore, Hartl claims that this proves C.L. was not in fear for her physical safety.

       We disagree. C.L. presented sufficient evidence from which the trial court could

find by a preponderance of the evidence that she was a victim of stalking.                            C.L.'s

statement that she "felt safe" is limited because it references only one incident during

which no physical contact occurred. Further, right before testifying that she felt safe and

was mad on that particular occasion, C.L. testified that this was because her alarm was set

and her dog was next to her; therefore, the statement is even further limited. These

preventive actions suggest that C.L. was actually fearful about the situation, and acted in

a way that a reasonable person would to attempt to protect herself from such a threat.

Moreover, this was not the first time Hartl had tried to enter C.L.'s home without

permission. On May 22, Hartl lunged into her home without warning or permission as he

grabbed her hand. The fact that she was taking precautionary measures to prevent

another break in does not equate to the conclusion that she was not in fear or that a

reasonable person would not be in fear.

       Following the June 11 incident, on June 27, Hartl forced his way into her home

again while grabbing her wrist, where she "started to run out the back of the house

knowing [she] couldn't get [her] phone or anything." On her way out she tried to push

the burglar alarm button to alert the police. However, she did not push hard enough and,

when Hartl left, she called the police and made a police report. These incidents, coupled

       5
           On June 11, Hartl knocked on C.L.'s door for thirty minutes while trying to talk to her.

                                                           7
with the repeated unwanted calls, voicemails, drivebys, and the unexpected appearance at

her mom's funeral, are sufficient evidence from which the trial court could find that

Hartl's actions caused C.L. to fear physical harm and that a reasonable person would have

experienced such fear. We find that Hartl's actions amounted to stalking. Further, the

same actions also establish that Hartl was guilty of "abuse" of the victim, as he assaulted

her by grabbing her arm on at least two occasions and unlawfully entering her home.

Therefore, we find that the trial court did not error in granting C.L. a full order of

protection.6

         The point is denied.7

                                                           Conclusion

         The judgment of the Circuit Court is affirmed.




                                                         __________________________________
                                                         Gary D. Witt, Judge
All concur




         6
            Hartl's action would also fall within the statutory definition of "harassment," which is "engaging in a
purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult
or child and serves no legitimate purpose." Section 455.010.1(d). However, we do not need to reach this issue
based upon the discussion above.
          7
            The fact that Hartl fails to even recognize the fear that he placed C.L. in as a result of his actions is further
proof of the need for the Adult Abuse Act.

                                                             8
