VALENTINE (GREGORY) VS. HORAN (KRISTIN)
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RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002010-ME
GREGORY VALENTINE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 02-D-500838
KRISTIN HORAN
APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
LAMBERT, JUDGE: Greg Valentine appeals the entry of an emergency
protective order (EPO) entered by the Jefferson Circuit Court on July 30, 2007, and
a domestic violence order (DVO) entered on August 13, 2007. After careful
review, we affirm.
On March 7, 2002, Greg was arrested and charged with kidnapping,
rape in the first degree, assault in the second degree, terroristic threatening in the
third degree, unlawful imprisonment, sexual abuse in the first degree, assault in the
fourth degree, assault in the fourth degree/third or subsequent offense, and
tampering with physical evidence. These charges were based on events that took
place on the previous day, March 6, 2002, with his then live-in girlfriend, Kristin
Horan. Apparently Greg and Kristin fought about financial matters, family
problems, and problems within their relationship.
Ultimately, Greg was convicted of assault in the fourth degree and of
two counts of sexual abuse in the first degree. At the conclusion of his trial, Greg
filed a motion to vacate, in which he raised issues of Kristin’s psychiatric treatment
and emotional instability. Greg’s motion was subsequently denied, and he is
currently appealing his sentence via a Kentucky Rules of Criminal Procedure
(RCr) 11.42 motion. Greg claims that he is investigating evidentiary matters
associated with his trial and conviction and that accordingly, he filed an open
records request with the Educational Professional Standards Board (EPSB)
concerning Kristin. When Kristin found out about that request, she filed for the
emergency protective orders at issue in this appeal.
A transcript of the hearing regarding the protective orders held on
August 13, 2007, reflects that Kristin was afraid that Greg was trying to find out
personal information about her due to his impending parole and/or the expiration
of his eight-year sentence. She expressed fear that Greg would find out her current
address and married name and fear that after approximately six years in prison, he
would take some action to harm her once he was released. Based on the fact that
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the criminal charges against Greg arose from domestic violence, the judge signed
the order of protection prohibiting Greg from gathering or attempting to gather any
information regarding Kristin’s address, employment, or personal data and from
coming within 1000 feet of her. Greg now appeals the emergency protective order
entered on July 30, 2007, and the protective order entered on August 13, 2007.
Kentucky Revised Statutes (KRS) 403.740 provides that if a court
determines from a petition for an emergency order of protection that an immediate
and present danger of domestic violence exists, the court shall issue, even ex parte,
an emergency protective order. KRS 403.750 provides that a court may issue a
domestic violence order, effective for up to three years, if after a hearing it finds
“from a preponderance of the evidence that an act or acts of domestic violence and
abuse have occurred and may again occur[.]” KRS 403.720 defines domestic
violence and abuse as including “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.” The preponderance of
the evidence standard is met when sufficient evidence establishes that the alleged
victim “was more likely than not to have been a victim of domestic violence.”
Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996).
Given that the trial and subsequent conviction of assault and sexual
abuse arose from domestic violence, we find the standards under KRS 403.740,
KRS 403.750, and Anderson to be met. Kristin suffered physical injury and sexual
abuse at the hands of Greg Valentine, and the evidence shows that she was more
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likely than not to have been a victim of domestic violence. The standard in a
criminal case is more stringent than the preponderance of the evidence standard set
forth in Anderson. Because Greg was found guilty beyond a reasonable doubt, we
find that the evidence also shows Kristin more likely than not was the victim of
domestic violence. Given that Greg will be out of prison shortly and is inquiring
about Kristin after all these years, it is possible that domestic violence may again
occur. Thus, the domestic violence protective order was appropriately entered.
Greg argues that KRS 403.740 requires that an adverse party be
personally served and requires a full hearing. KRS 403.740(4) requires that a
hearing take place before the expiration of the EPO. In the case at bar, a hearing
was held on August 13, 2007, and both parties were afforded the opportunity to be
heard. The record reflects transcripts of a hearing with Kristin and a separate
telephonic hearing with Greg. Thus, KRS 403.740(4) is met. Assuming that
Greg’s assertions that he was not served with the petition and EPO are correct, we
find the issue of notice and service to be moot, given the expiration of the EPO
within fourteen days of its entry. On August 13, 2007, the trial court entered the
DVO under KRS 403.750, which does not have the notice and service requirement
set forth in KRS 403.740. Thus, any fault with the EPO and the alleged lack of
service is additionally rendered moot by the subsequent DVO entered.
Accordingly, for the foregoing reasons, the Jefferson Circuit Court’s
entry of the DVO is hereby affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Gregory Valentine, Pro Se
Beatyville, Kentucky
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