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IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Submitted on Briefs September 20, 2022

KYNDRA N. ABERNATHY v.ICKER DEREK BARILE

Appeal from the Circuit Court for Knox County

No. 153134 Gregory S. McMillan, Judge

No. E2022-00081-COA-R3-CV

Kyndra Abernathy (“Petitioner”) petitioned the trial court for an order of protection against 

Icker Derek Barile (“Respondent”), alleging that he sexually assaulted her. After a hearing 

at which each party proceeded pro se, the trial court issued a one-year protective order, 

finding that Respondent engaged in sexual penetration without Petitioner’s consent and 

continued after she told him to stop. Respondent appeals, arguing that the trial court erred 

by considering irrelevant and inadmissible evidence and that its decision was against the 

weight of the evidence. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

KRISTI M. DAVIS,J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and 

THOMAS R. FRIERSON, II, JJ., joined.

Ursula Bailey, Knoxville, Tennessee, for the appellant, Icker Derek Barile.

No appellate brief filed on behalf of appellee, Kyndra N. Abernathy.

I. BACKGROUND

Petitioner alleged that Respondent sexually assaulted her after a night of drinking 

on November 27, 2021. Respondent shares an apartment with Petitioner’s boyfriend and 

at least one other person. The petition alleges:

After getting back from drinking with my boyfriend and [Respondent], my 

boyfriend fell alseep on the couch and I went to my boyfriend[’s] room. A 

few minutes later [Respondent] came into the room and started taking off my 

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clothes and started sexually assaulting me. He left the room and came back 

again wearing a robe, and continued sexually assaulting me.

The trial court issued a temporary ex parte order of protection on December 10, 

2021. The hearing took place on December 22, 2021. Neither party was represented by 

legal counsel. The trial court heard testimony from the parties and Petitioner’s boyfriend 

Ben Smith. Petitioner testified as follows:

so, when he came into the room, he got on top of me and started having sex 

with me. I asked him to please get off and he didn’t, and a lot of it is worry 

because I had been drinking so that makes it even harder.

And then, again, he left the room, and I thought like it was done and over, 

and then for some reason, he came back in. And I guess he put on a robe to 

make it easier for him. I am not really sure. And that’s when it happened

again. And like, a lot of it, I just feel like I just like blacked out. I just wanted 

it to stop.

THE COURT: Okay.

[Petitioner]: And I kept asking if he was done, and he just kept saying “No.”

That’s – that’s all I know.

Respondent did not cross-examine Petitioner. He testified that there was mutual consent 

for the sexual contact and that Petitioner initiated and invited it. Respondent’s testimony 

regarding what happened is as follows:

We did come back that night after drinking, all three of us. With the help of 

Kyndra that night, I carried Ben back to the apartment. We both tried to 

sober him up and get him up and go to bed. He wouldn’t do it, he just kept 

saying that he wanted to pass out and sleep on the couch.

After a while of doing that, Kyndra went down to Ben’s room. I stayed with 

Ben for a little while trying to get him to drink some water. Then after a 

while, I just left and went back to my room. I changed, went back into the 

kitchen to get more water for myself.

And when I turned the corner, I saw Kyndra naked in the hallway just leaning 

on the brick wall. When I approached her, I asked her if she was okay, and 

what she was doing. She asked me if I would get her some water. I did. I 

went back into the kitchen, got her some water, and when I came back, she 

was still naked in the hallway waiting for me.
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When I gave her the water, she took a couple sips then placed the water down 

on the banister that we have in the hallway, and approached me to kiss me. 

I pushed her off and told her that this couldn’t happen, that Ben was in the

living room.

I tried to usher her into the bathroom that was in the hallway to cover her up. 

she pulled back and grabbed me by the wrists and tried to pull me into Ben’s 

room. I refused and I kept telling her that she needed to go to bed, and she 

just kept wanting to kiss me, and throw herself at me, basically.

After a while, she ended up getting me into the room. I tried to put her down 

on the bed without – without anything happening, and she still just kept 

wanting to kiss me. I eventually told her that it couldn’t happen, whatsoever, 

that Ben was in the room.

Also, my roommates were in the next room. We have a third roommate. He 

was in the next room right next to Ben’s bedroom. And he was there with 

his girlfriend that night. They didn’t hear anything. None of what she is

saying is true. I didn’t sexually assault her, rape her, any of that.

* * *

BY THE COURT: So is it your testimony, sir, that there was no activity other 

than her kissing you in the hallway?

A. No. There was definitely sexual activity between two adults.

Q. Okay.

A. But it was consensual. I had the “yes” from her. I asked multiple times 

if she was okay with doing this and she agreed.

The trial court entered a one-year order of protection after the hearing, finding as 

follows:

The court finds and has specifically set out that on November 27th, 2021, 

Petitioner, Respondent, and Petitioner’s boyfriend went out for drinks. 

Petitioner was “highly intoxicated” and there was sexual activity between 

Petitioner and Respondent to which Petitioner could not consent, and 

Respondent testified that he knew she was intoxicated and that it was not 

right to engage in sexual activity as Petitioner “was enticing” him to do. 
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Once sexual penetration occurred, Petitioner told Respondent to stop and he 

did not and resumed having sex with Petitioner.

Respondent timely filed a notice of appeal.

II. ISSUES PRESENTED

Respondent raises the following issues:

1. Whether the trial court erred in considering irrelevant and/or inadmissible evidence in 

granting the order of protection to Petitioner.

2. Whether the decision of the trial court was against the weight of the evidence.

III. STANDARD OF REVIEW

As stated by our Supreme Court,

In a non-jury case such as this one, appellate courts review the trial court’s 

factual findings de novo upon the record, accompanied by a presumption of 

the correctness of the findings, unless the preponderance of the evidence is 

otherwise. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 

685, 692 (Tenn. 2013). We review the trial court’s resolution of questions 

of law de novo, with no presumption of correctness.

Kelly v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 2014). The trial court’s determinations 

regarding witness credibility are entitled to great weight on appeal and shall not be 

disturbed absent clear and convincing evidence to the contrary. See Morrison v. Allen, 338 

S.W.3d 417, 426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). This 

is “[b]ecause the trial court is in the best position to judge the parties’ credibility during 

live testimony at trial.” Larsen-Ball v. Ball, No. E2020-00297-COA-R3-CV, 2021 WL 

3854802, at *12 (Tenn. Ct. App. Aug. 30, 2021).

With respect to issues regarding the admission or exclusion of evidence, appellate 

courts review the trial court’s determinations under an abuse of discretion standard. Brown 

v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005); Mercer v. Vanderbilt Univ., 

Inc., 134 S.W.3d 121, 131 (Tenn. 2004). As we have previously explained:

Under this standard, we are required to uphold the trial court’s ruling “as long 

as reasonable minds could disagree about its correctness.” Caldwell v. Hill, 

250 S.W.3d 865, 869 (Tenn. Ct. App. 2007). So, “we are not permitted to 

substitute our judgment for that of the trial court.” Id. An appellate court 
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“will set aside a discretionary decision only when the trial court has 

misconstrued or misapplied the controlling legal principles or has acted 

inconsistently with the substantial weight of the evidence.” White v. 

Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). We review a 

trial court’s discretionary decision to determine: “(1) whether the factual 

basis for the decision is supported by the evidence, (2) whether the trial court 

identified and applied the applicable legal principles, and (3) whether the trial 

court’s decision is within the range of acceptable alternatives.” Id.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *2 (Tenn. 

Ct. App. Aug. 12, 2011).

IV. ANALYSIS

Tennessee Code Annotated section 36-3-602(a) states in pertinent part that “[a]ny . 

. . sexual assault victim who has been subjected to, threatened with, or placed in fear of, . . 

. sexual assault . . . may seek relief under this part by filing a sworn petition” seeking an 

order of protection. Our statutory scheme further provides as follows:

(a) Upon the filing of a petition under this part, the courts may immediately, 

for good cause shown, issue an ex parte order of protection. An immediate 

and present danger of abuse to the petitioner shall constitute good cause for 

purposes of this section.

(b) Within fifteen (15) days of service of such order on the respondent under 

this part, a hearing must be held, at which time the court shall either dissolve 

any ex parte order that has been issued, or shall, if the petitioner has proved 

the allegation of domestic abuse, stalking, sexual exploitation of a minor, 

sexual assault, or a human trafficking offense by a preponderance of the 

evidence, extend the order of protection for a definite period of time, not to 

exceed one (1) year[.]

Tenn. Code Ann. § 36-5-605. “Sexual assault victim” is defined at Tenn. Code Ann. § 36-

5-601 as “any person, regardless of the relationship with the perpetrator, who has been 

subjected to, threatened with, or placed in fear of any form of rape, as defined in § 39-13-

502, § 39-13-503, § 39-13-506 or § 39-13-522, or sexual battery, as defined in § 39-13-

504, § 39-13-505, or § 39-13-527[.]” The crime of rape is defined as “unlawful sexual 

penetration of a victim by the defendant . . . accompanied by any of the following 

circumstances: . . . (2) The sexual penetration is accomplished without the consent of the 

victim and the defendant knows or has reason to know at the time of the penetration that 

the victim did not consent.” Tenn. Code Ann. § 39-13-503(a). 
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In this case, Petitioner argues that the trial court erred by considering a photograph 

on Petitioner’s cell phone that she alleged to show bruises on her legs resulting from the 

sexual assaults. The entire discussion at trial regarding the photograph is as follows:

[Petitioner]: [T]he next day I had bruises on my legs, which I have a picture 

of the bruises. (Petitioner places a cell phone on the projector and a

photograph is reviewed.)

* * *

THE COURT: All right. Ma’am, you need to lay a foundation and 

authenticate this picture, please.

[Petitioner]: I’m sorry. What was –

THE COURT: Ma’am, you need to lay a foundation and authenticate this 

picture, please.

[Petitioner]: I don’t know –

THE COURT: There are – you know things about this picture, ma’am. You 

know them because for various reasons, you know them. You have to lay a 

foundation and authenticate them so I know why you say this photo is what

you say it is.

[Petitioner]: It was the day after. I took it, and it is on my leg right here and 

you can see it is finger prints, like hand, from his hand.

THE COURT: And how do I know that is the day after, ma’am?

[Petitioner]: It should – it’s on here, the day that I took it, November the 29th.

THE COURT: Okay. And again, ma’am, you have testified twice that he 

sexually assaulted you. That word has a specific meaning with required 

elements –

[Petitioner]: Okay.

THE COURT: – and without proof of each and every element, I cannot 

decide in your favor. And I hate to request and point that out. But you are 

asking the Court for relief and it is necessary for the requisite proof to be

placed into evidence and established in order for me to rule in your favor.
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Respondent did not make any objection regarding the photograph. He now argues on 

appeal that the picture was not properly authenticated nor admitted into evidence, so it 

“should not have been considered by the trial court in making its decision.” 

The trial court, faced with the challenging situation of dealing with two pro se 

opponent parties, properly explained that the photograph would have to be authenticated 

in order to be considered by the court. Contrary to Respondent’s argument on appeal, there 

is no indication that the trial court placed any significant weight on the photograph in 

making its decision. The trial court, in making comments during the course of the hearing, 

did refer to the fact that the crime of aggravated rape requires a showing that “the defendant 

cause[d] bodily injury to the victim.” Tenn. Code Ann. § 39-13-502(a)(2). But ultimately, 

in its written order, the trial court did not find that Respondent caused Petitioner bodily 

injury, nor did the court make any reference to the photograph. Such a finding was not 

required in order to establish the elements of sexual assault or rape, which in turn justifies 

the issuance of a protective order.

Respondent also argues that the trial court erred in allowing the testimony of 

Petitioner’s boyfriend Ben Smith. Mr. Smith said that Respondent had “a track record of 

being dishonest and using that dishonesty toward his advantage.” His testimony was quite 

brief, amounting to less than a page and a half in the transcript. Mr. Smith recounted 

several incidents that he said reflected negatively on Respondent’s character. These 

included an allegation that Respondent stole nude photographs from a friend’s phone and 

was once very pushy with another friend and “wanted to give her a massage and instructed 

her to take her clothes off.” 

Respondent now argues that Mr. Smith’s testimony should have been excluded 

under Tenn. R. Evid. 404(b), which applies to “[e]vidence of other crimes, wrongs, or acts.” 

Respondent made no such objection at the hearing, however. In fairness to Respondent, 

we recognize that at an earlier point in the hearing, he did argue that alleged evidence of 

prior “shady and nasty things” he had done “six years ago” was not relevant. But he did 

not ever invoke Rule 404(b), nor did he lodge any objection during or after Mr. Smith’s 

testimony. In Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003), this Court, 

observing that “[p]ro se litigants should not be permitted to shift the burden of the litigation 

to the courts or to their adversaries,” stated:

Parties who decide to represent themselves are entitled to fair and equal 

treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 

(Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 971 

S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take into account 

that many pro se litigants have no legal training and little familiarity with the 

judicial system. Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct.

App. 1988). However, the courts must also be mindful of the boundary 
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between fairness to a pro se litigant and unfairness to the pro se litigant’s 

adversary. Thus, the courts must not excuse pro se litigants from complying 

with the same substantive and procedural rules that represented parties are 

expected to observe. Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct.

App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n. 4 (Tenn. Ct. App.

1995).

Id. at 903. An appellate court will generally not fault a trial court for not interposing and 

applying a rule that was never timely cited or invoked by the party later asserting error. 

See, e.g., State v. Thompson, No. M2009-01714-CCA-R3-CD, 2011 WL 4954057, at *18 

(Tenn. Crim. App. Oct. 19, 2011) (“Our supreme court has said that ‘Failure to raise a 

contemporaneous objection to . . . testimony as being a prior bad act effectively waives this 

issue.’”) (quoting State v. Thacker, 164 S.W.3d 208, 239 (Tenn. 2005)).

The written findings in the trial court’s order of protection indicate that it correctly 

focused on the determinative facts of this case, namely that the sexual penetration by 

Respondent was done without Petitioner’s consent, and that he knew it or had reason to 

know it at the time. The findings were necessarily driven by the trial court’s observation 

of the demeanor of the witnesses and its respective assessments of credibility. See generally 

L.A.S. v. C.W.H., No. E2021-00504-COA-R3-JV, 2022 WL 17480100 at *4 (Tenn. Ct. 

App. Dec. 7, 2022) (recognizing that an issue resting “upon a he said/she said dichotomy . 

. . hinges upon an assessment of witness credibility”) (quoting Higdon v. Higdon, No. 

M2019-02281-COA-R3-CV, 2020 WL 6336151, at *7 (Tenn. Ct. App. Oct. 29, 2020)). 

“We will not second-guess the trial court’s credibility determinations absent clear and 

convincing evidence to the contrary.” Wininger v. Wininger, No. E2021-01296-COA-R3-

CV, 2022 WL 4231947, at *6 (Tenn. Ct. App. Sept. 14, 2022) (citing Morrison v. Allen, 

338 S.W.3d 417, 426 (Tenn. 2011)). Here, the evidence does not preponderate against the 

trial court’s findings, and the court did not misapply the controlling legal principles. 

V. CONCLUSION

The judgment of the trial court is affirmed. Costs on appeal are assessed to the 

appellant, Icker Derek Barile, for which execution may enter if necessary. 

_______________________________

KRISTI M. DAVIS, JUDGE