9148D-05142015-N002257 Redacted

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
------------------------------X
:
BRETT KIMBERLIN, :
:
Appellant/Plaintiff,:
:
v. : Case No. 9148D
:
WILLIAM HOGE III, :
:
Appellee/Defendant. :
:
------------------------------X
TRIAL DE NOVO
Rockville, Maryland May 14, 2015
DEPOSITION SERVICES, INC.

12321 Middlebrook Road, Suite 210
Germantown, Maryland 20874
(301) 881-3344
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
------------------------------X
:
BRETT KIMBERLIN, :
:
Appellant/Plaintiff,:
:
v. : Case No. 9148D
:
WILLIAM HOGE III, :
:
Appellee/Defendant. :
:
------------------------------X
Rockville, Maryland
May 14, 2015
WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE: THE HONORABLE AUDREY A. CREIGHTON, JUDGE
APPEARANCES:
FOR THE APPELLANT/PLAINTIFF:
BRETT KIMBERLIN, Pro se
FOR THE APPELLEE/DEFENDANT:
F. PATRICK OSTRONIC, Esq.

932 Hungerford Drive
Suite 28A
Rockville, Maryland 20850
I N D E X
Page
WITNESSES DIRECT CROSS REDIRECT RECROSS
For the Appellant/Plaintiff:
Tetyana Kimberlin 31 41 42 43
(Judge) (Judge)
Kelsey Kimberlin 45 59 68/70/91 69

(Judge) (Judge)
For the Appellee/Defendant:
William Hoge III 79 85 87 --

(Judge)
EXHIBITS MARKED RECEIVED
For the Appellant/Plaintiff:
Exhibit No. 1 38 39
Exhibit No. 2 47 --
Exhibit No. 3 52 --
Exhibit No. 4 74 --
For the Appellee/Defendant:
Exhibit No. 1 83 84
Closing Arguments:
F. Patrick Ostronic, Esq. 88

For the Defendant
Judge's Ruling 93
4
1 P R O C E E D I N G S
2 THE BAILIFF: -- now in session, the Honorable Audrey
3 A. Creighton presiding.
4 THE COURT: Good morning.
5 MR. KIMBERLIN: Morning.
6 MR. OSTRONIC: Good morning, Your Honor.
7 THE COURT: Please be seated.
8 THE CLERK: Calling DCA No. 9148D, Brett Kimberlin
9 versus William Hoge III.
10 THE COURT: Will the parties please identify
11 themselves?
12 MR. KIMBERLIN: Brett Kimberlin.
13 THE COURT: All right. Good morning, Mr. Kimberlin.
14 MR. KIMBERLIN: Yes.
15 MR. OSTRONIC: Morning, Your Honor. Patrick Ostronic
16 on behalf of Mr. Hoge. And may I make a correction? I believe
17 it's Brett Kimberlin on behalf of his daughter, the case is,
18 not Brett Kimberlin himself.
19 THE COURT: Okay. And your client is?
20 MR. OSTRONIC: Mr. John Hoge.
21 THE COURT: And he's present?
22 MR. OSTRONIC: Yes, Your Honor.
23 THE COURT: Okay. All right. The case before me is
24 an appeal from the District Court denial of Mr. Kimberlin's
25 application for a final peace order on behalf of his daughter,

5
1 Kelsey Kimberlin, temporary peace order having been issued, it
2 looks like it was Judge Simmons on March 6, 2015. Then the
3 matter came before Judge Barry, and the final was denied.
5 THE COURT: Okay. This is an appeal de novo, and
6 I'll hear from Mr. Kimberlin to --
7 MR. OSTRONIC: Your Honor, can we have --
8 THE COURT: Yes.
9 MR. OSTRONIC: -- some preliminaries first?
10 THE COURT: Oh, okay.
11 MR. OSTRONIC: Thank you, Your Honor. Two matters.
12 First, Mr. Kimberlin is not an attorney, and I'm wondering
13 propriety of him representing his daughter even though he's not
14 an attorney.
15 THE COURT: He can't represent his daughter, but my
16 understanding is that she is a minor --
17 MR. OSTRONIC: Right.
18 THE COURT: -- 15 years old, so she can't bring this
19 petition herself.
20 MR. OSTRONIC: Right. So he can bring it on behalf
21 of her, but he should also arrange for his own, for
22 representation for her. He can't act as the attorney on this
23 matter, can he?
24 THE COURT: Not as the attorney, no.
25 MR. OSTRONIC: Well, that's what he's going to be

6
1 doing, I believe, Your Honor.
2 THE COURT: Okay. Well, let's wait and see if he
3 does.
4 MR. OSTRONIC: Okay, Your Honor, and the -- okay.
5 And the second thing --
6 THE COURT: And there's --
7 MR. OSTRONIC: -- that matters, does Mr. Kimberlin
8 intend to testify?
9 THE COURT: Do you intend to testify?
10 MR. KIMBERLIN: Yes.
11 MR. OSTRONIC: Your Honor, then I'll object to that.
12 THE COURT: For reasons?
13 MR. OSTRONIC: 9-104, Your Honor, convicted perjurers
14 may not testify.
15 THE COURT: Do you have any proof of that?
16 MR. OSTRONIC: Do I have any proof of that, Your
17 Honor?
18 THE COURT: Yes.
19 MR. OSTRONIC: Actually, I do, Your Honor.
20 THE COURT: All right. Well, let me see what you
21 have.
22 MR. OSTRONIC: I have it right here, so, a whole slew
23 of these.
24 THE COURT: Do you have a certified copy of a
25 conviction?
7
1 MR. OSTRONIC: No, Your Honor. I do have court
2 records that indicate that, where it's --
3 MR. KIMBERLIN: I object.
4 MR. OSTRONIC: -- it's alluded to.
5 MR. KIMBERLIN: I object.
6 MR. OSTRONIC: Well, Your Honor, I mean, I'm bringing
7 it before the Court. I'm telling that he's a convicted
8 perjurer. We have court records that show that, you know --
9 THE COURT: What jurisdiction are they from?
10 MR. OSTRONIC: They're at the federal courts. I have
11 federal courts.
12 THE COURT: Federal court?
13 MR. OSTRONIC: It's a convicted, I mean, that it --
14 THE COURT: I'm surprised you didn't get a certified
15 copy of the conviction.
16 MR. OSTRONIC: Well, Your Honor, I didn't think it
17 would be necessary, just to say that --
18 THE COURT: Well, Mr. Hoge is very familiar with Mr.
19 Kimberlin.
20 MR. OSTRONIC: Right, and I'm familiar with him too,
21 also, Your Honor. And in --
22 THE COURT: Okay.
23 MR. OSTRONIC: -- we've had prior cases where he, we
24 brought this up before, and it has been allowed that he, not
25 allowed him to testify. And in other cases, they have allowed

8
1 him to testify. He was not allowed to testify in the matter at
2 the District Court level that we're bringing up because of the
3 conviction of perjury.
4 MR. KIMBERLIN: That's, that --
5 MR. OSTRONIC: You can just ask him, Your Honor. I'm
6 telling, I'm bringing it before -- as an officer of the court,
7 I have to bring it before the Court.
8 THE COURT: I understand. My question, I'm just
9 surprised you don't have a certified copy of the conviction.
10 Why don't you show Mr. Kimberlin what it is that you have, and
11 I'll look at it. I understand Mr. Kimberlin is objecting to
12 it.
13 MR. OSTRONIC: That's what I have here too. I have
14 that.
15 MR. KIMBERLIN: Your Honor --
16 MR. OSTRONIC: I have --
17 MR. KIMBERLIN: Your Honor, that's not evidence.
18 It's a, it's just a court, it's not even a court decision.
19 It's --
20 MR. OSTRONIC: It's an entry --
21 MR. KIMBERLIN: It's an entry.
22 MR. OSTRONIC: -- from 1979. I have numerous --
23 MR. KIMBERLIN: And it's, it's not the conviction.
24 And the, you know, I think you and I have been through this
25 before where something that happened when I was a juvenile --

9
1 MR. HOGE: You weren't at --
2 THE COURT: Okay. Just to make it clear for the
3 record, I did preside over a hearing, I believe, you were -- I
4 don't know if it was the same gentleman here.
5 MR. OSTRONIC: I was here, Your Honor.
6 THE COURT: Oh, okay. I thought it was in District
7 Court --
8 MR. OSTRONIC: No, it was Circuit Court --
9 THE COURT: -- but counsel --
10 MR. OSTRONIC: -- last year.
11 THE COURT: Okay. Don't remember really,
12 specifically the case.
13 MR. OSTRONIC: It was on a motion.
14 THE COURT: Okay. All right.
15 MR. OSTRONIC: A motion hearing.
16 THE COURT: So I apologize. And so I would just
17 caution both sides not to make references --
18 MR. KIMBERLIN: All right.
19 THE COURT: -- of what happened before, because a
20 lot's happened since.
21 MR. OSTRONIC: Right, Your Honor.
22 MR. KIMBERLIN: Of course.
23 THE COURT: And I don't particularly remember --
24 MR. KIMBERLIN: I understand.
25 THE COURT: -- what we did in this case, so I

10
1 apologize for that. But I've had a lot of cases since then,
2 and I don't quite remember. So all right, let me see.
3 MR. OSTRONIC: Here's --
4 THE COURT: Okay.
5 MR. OSTRONIC: -- one.
6 THE COURT: All right. So this looks like a --
7 MR. OSTRONIC: I also have then a footnote
8 referencing that.
9 THE COURT: Okay. This is not with respect to a
10 perjury conviction.
11 MR. OSTRONIC: Your Honor, if you go to the --
12 THE COURT: Oh, there's more?
13 MR. OSTRONIC: There's a, the note --
14 THE COURT: Okay.
15 MR. OSTRONIC: -- the note they reference, he was,
16 says that's why he was --
17 THE COURT: Oh, okay. Thank you. Okay.
18 MR. OSTRONIC: And here's another one.
19 THE COURT: So are these different cases, or is this
20 all the same case?
21 MR. OSTRONIC: No, different cases, Your Honor --
22 THE COURT: Okay.
23 MR. OSTRONIC: -- that they made reference to it.
24 THE COURT: Okay.
25 MR. OSTRONIC: And then I have that reference.

11
1 THE COURT: Okay. The objection really is as to
2 hearsay. Anything that's not a court-certified copy of a
3 conviction is technically hearsay, but what counsel's presented
4 me with is opinions by other courts, and opinions by other
5 judges.
6 There's an opinion here by Federal District Court
7 Judge Nolan from the United States District Court, Southern
8 District of Indiana, which does state here, it's part of the
9 court's opinion that defendant, in 1974, was previously
10 convicted on a charge of perjury in the Southern District of
11 Indiana. Give that one back to you.
12 And then this one is 1998 decision from the United
13 States District Court, District of Maryland, and this is
14 District Judge Williams's decision. And on page 9, there's a
15 footnote that indicates there was a 1973 felony conviction for
16 perjury.
17 So I'm going to rely on these previous decisions and
18 findings by federal court judges.
19 MR. KIMBERLIN: May I, may I speak?
20 THE COURT: Yes.
21 MR. KIMBERLIN: The statute --
22 THE COURT: Let me just put one more on, okay,
23 because there's one, a third case here that counsel's provided,
24 and this is a 1992 opinion, U.S. District Court of Tennessee.
25 And in this opinion, at page 9, there is reference to, just

12
1 after, I believe it's Mr. Kimberlin's 18th birthday, conviction
2 for perjury. So let me just put the citations for these cases
3 on the record.
4 MR. OSTRONIC: You want to keep the copies, Your
5 Honor? I can leave the copies with you if you like.
6 THE COURT: No, I'll give them back. I just want to
7 put the citations on here in case somebody wants to research
8 these. Okay.
9 The first one, first case I talked about, or the
10 second case I talked about is Brett Kimberlin v. Stephen
11 DeWalt, Warden FCI-Petersburg. All right. I don't see the
12 formal citation here, but the informal citation is 12 F.Supp.2d
13 487 (USDC Md. 1998).
14 And then the third case provided by counsel also has
15 an informal citation here, Kimberlin v. White, cited at 798
16 F.Supp. 472, W.D. Tennessee, 1992. Okay.
17 MR. OSTRONIC: Thank you, Your Honor.
18 THE COURT: I'll give those back. You're welcome.
19 Okay. Yes, Mr. Kimberlin?
20 MR. KIMBERLIN: The rule that they're relying on does
21 not use the mandatory language "shall." It uses the word
22 "may." May is discretionary. I ask the Court to exercise its
23 discretion in allowing me to testify.
24 Many judges, over the last couple years, have dealt
25 with these issues, have allowed me to testify, and Judge Jordan

13
1 even stated that he believes this statute is unconstitutional.
2 And in fact, I have this very issue before the Court
3 of Appeals, the Maryland Court of Special Appeals, whether this
4 rule, which is basically only Maryland, I think, is the only
5 state in the whole country that has this rule that prohibits
6 people that have been convicted of perjury from testifying.
7 And it seems to be an absolute denial of due process
8 and equal protection, especially in a case like this where you
9 have a victim of, of, a peace order violation. And that victim
10 cannot testify.
11 I mean, if I was assaulted and had a stab wound, you
12 know, these guys would be up saying I can't testify against the
13 guy that stabbed me. I mean, this is how absurd this statute
14 is. And therefore, I ask you to exercise your judicial
15 discretion and allow me to testify.
16 MR. OSTRONIC: Your Honor, could I just address one
17 point there?
18 THE COURT: Yes.
19 MR. OSTRONIC: In Rule 1-201, "When a rule, by the
20 word "shall" or otherwise, mandates or prohibits conduct, the
21 consequences of noncompliance are those prescribed by these
22 rules or by statute." The idea is that "may" or, should all
23 be, say the same thing. It's all the, it's not a discretionary
24 thing.
25 THE COURT: Where are you reading?

14
1 MR. OSTRONIC: I was looking at the Rule 201.
2 THE COURT: Where in --
3 MR. OSTRONIC: I'm sorry. Rule 1-201, on
4 construction.
5 THE COURT: Okay. (a), (b), (c), (d), or (e)?
6 MR. OSTRONIC: I'm sorry. (a), first line of that,
7 Your Honor.
8 THE COURT: Okay.
9 MR. OSTRONIC: "'Shall' or otherwise, when a rule, by
10 the word "shall" or otherwise, mandates or --
11 THE COURT: Right. "'Shall' or otherwise mandates or
12 prohibits," but Mr. Kimberlin's correct. It says "may." It
13 doesn't mandate anything. It says "may." Permissive language.
14 MR. OSTRONIC: It says "may not testify," Your Honor.
15 It's not a, I don't believe it's discretionary. I mean, if
16 this, if all our laws were this simple, you would have a much
17 easier job in the courtroom. I mean, it's like --
18 THE COURT: Well, the Rules Committee and the
19 legislature thinks really hard with respect to what words
20 they're going to use, "may" or "shall."
21 MR. OSTRONIC: Oh, and this is statutory, Your Honor.
22 This is not a rule. This is statutory.
23 THE COURT: Well, I'm going to --
24 MR. OSTRONIC: I'm sorry.
25 THE COURT: -- look at it. See if I can figure out

15
1 if they mean "may" or not when they say that.
2 Has anybody done any research with respect to these
3 annotations?
4 MR. OSTRONIC: I've done research in respect to the
5 constitutionality of the permissiveness of 104. 9-104. In
6 other words, it is constitutional. There's no doubt about
7 that. It's a statutory right, not a constitutional right.
8 That, I'm fairly, I'm --
9 MR. KIMBERLIN: Uh --
10 MR. OSTRONIC: This has been around since common law.
11 MR. KIMBERLIN: Well, I mean, the reasons to exercise
12 your discretion, something that happened, what, 40-some years
13 ago, when --
14 THE COURT: This was when you were 18? I read that
15 in one of the cases.
16 MR. KIMBERLIN: Yeah, when I was a juvenile. I
17 mean --
18 THE COURT: Right. After you were 18?
19 MR. OSTRONIC: Your Honor, he was not a juvenile.
20 THE COURT: Right after your 18th birthday?
21 MR. KIMBERLIN: Yeah. And --
22 THE COURT: Teenager --
23 MR. KIMBERLIN: And I --
24 THE COURT: -- but not --
25 MR. KIMBERLIN: I --
16
1 THE COURT: -- but not technically a juvenile --
2 MR. KIMBERLIN: And --
3 THE COURT: -- is that what you're saying? Okay.
4 MR. KIMBERLIN: And I was called in front of a
5 federal grand jury. I was, I had no, no lawyer present. I
6 went to a trial under the Youth Corrections Act, which was, I
7 was supposed to have been sentenced under the Youth Corrections
8 Act --
9 THE COURT: How old are you now?
10 MR. KIMBERLIN: 61.
11 THE COURT: Okay.
12 MR. KIMBERLIN: Okay. So under the Youth Corrections
13 Act, at 21, the, the conviction is supposed to be expunged. My
14 judge made a mistake and didn't make a specific finding under
15 the Youth Corrections Act, which the Supreme Court addressed in
16 a case called Dorszynski v. U.S., and the Supreme Court ruled
17 that, that the judge has to make a specific no benefit finding
18 to, to make a determination that you will not benefit under the
19 Youth Corrections Act.
20 The judge, in my case, made a mistake. The problem
21 was, when I went back to court to say, "Judge, I'm 21, I
22 shouldn't have this conviction, Dorszynski says that this thing
23 should be off my record," and by a fluke of the federal rules,
24 that, that's, that Dorszynski decision --
25 THE COURT: Is Dorszynski the judge?

17
1 MR. KIMBERLIN: No.
2 MR. OSTRONIC: No, Your Honor.
3 MR. KIMBERLIN: Dorszynski was a Supreme Court
4 decision.
5 THE COURT: With respect to your case?
6 MR. KIMBERLIN: No. It was a --
7 THE COURT: Oh.
8 MR. KIMBERLIN: It was on the Youth Corrections
9 Act --
10 THE COURT: Oh, okay.
11 MR. KIMBERLIN: -- the same thing that I was --
12 THE COURT: Okay.
13 MR. KIMBERLIN: -- sentenced, supposed to be
14 sentenced under.
15 But it's, it's a complicated issue, but the bottom
16 line is, had the court applied, be able to apply Dorszynski
17 retroactively, this conviction wouldn't even be here. But
18 because the judge made a mistake, and the time for going back
19 and, and asking this to be corrected had passed, and so I just
20 got stuck with this conviction that I never should have had
21 because I successfully completed my probation and all that
22 other stuff.
23 And that's another reason why you should exercise
24 your discretion. Something that happened 40 years ago, when I
25 was 18, you know, shouldn't preclude me from protecting my

18
1 daughter 40 years later.
2 THE COURT: And did Judge Jordan allow you to testify
3 in the Circuit Court for Montgomery County?
4 MR. KIMBERLIN: Oh, yeah, and that, I mean, there's
5 been like, Judge Jordan allowed me to testify, Judge McGann
6 allowed me to testify, Judge Burrell allowed me to testify --
7 MR. OSTRONIC: No, she didn't.
8 MR. KIMBERLIN: -- and I believe you allowed me to
9 testify.
10 And there's been one or two cases where the judges
11 have said, "Well, maybe not," and I, you know, in, in the lower
12 court, he says I was prohibited from testifying. That's not,
13 that's not the case. I said I wasn't going to testify. My
14 daughter testified. And so she's here today right there.
15 You know, we can get away with me not testifying, but
16 I want to protect my daughter.
17 THE COURT: Okay.
18 MR. KIMBERLIN: I think the Court needs to have --
19 THE COURT: All right. Let's not get into the
20 merits --
21 MR. KIMBERLIN: Okay.
22 THE COURT: -- of why we're here.
23 MR. OSTRONIC: Your Honor, I'll --
24 THE COURT: I'm going to think about this --
25 MR. OSTRONIC: I will say that --

19
1 THE COURT: -- conviction.
2 MR. OSTRONIC: -- on the underlying case at the
3 District Court level, the judge there did rule that Mr.
4 Kimberlin could not testify. He did --
5 THE COURT: Which one? Which judge? Simmons or
6 Williams?
7 MR. OSTRONIC: Judge Williams.
8 THE COURT: Okay.
9 MR. OSTRONIC: The one that we're, he's appealing the
10 de novo for.
11 THE COURT: Barry Williams.
12 MR. KIMBERLIN: And Judge Simmons --
13 MR. OSTRONIC: That one, he did not allow him to
14 testify.
15 MR. KIMBERLIN: Simmons did allow me to testify, by
16 the way.
17 THE COURT: Okay. All right. I'm going to look at
18 some of these cases, and take a recess, and make a decision on
19 that.
20 THE BAILIFF: All rise.
21 THE CLERK: Court stands in recess.
22 (Recess)
23 THE COURT: Thank you. Please be seated.
24 THE CLERK: Recalling DCA No. 9148D, Brett Kimberlin

20
1 THE COURT: All right. Back on the record in this
2 case. Counsel and the appellant, and appellee are present, for
3 the record. You may be seated.
4 All right. Well, I've read the cases, which really
5 are in conflict with the statute. That doesn't help very much.
6 Colkley v. State, cited at 204 Md. App. 593, 2012
7 decision, cites back to the Florentine case. Colkley's
8 overruled by Fields v. State, 432 Md. 650, 2013 case, but it's
9 reversed on other grounds, not with respect to whether a
10 convicted perjurer may testify, cites back to Florentine.
11 And the Florentine decision, it's a very old decision
12 by the Maryland Court of Appeals, a 1945 decision, talks about
13 the difference between someone that's just accused of
14 committing perjury, but not convicted of perjury, making a
15 distinction that someone can't merely be accused or suspected
16 of committing perjury.
17 I mean, they can be, but if that's the circumstances,
18 that person is not going to be precluded from testifying. But
19 then if they are subsequently convicted of perjury, that person
20 shall not be permitted to testify. That's in direct
21 contravention to the statute, because 9-104 is talking about
22 convictions, and then says, a person convicted of perjury may
23 not testify, which is permissive language.
24 So they contradict each other. And I didn't see any
25 clarification in Maryland, and 49 Md. App. 605, 1981 decision,

21
1 by the Court of Special Appeals, it's Erman v. State, or Myers
2 v. State, 1985 decision, 303 Md. 639.
3 Mr. Kimberlin, I know, is not testifying because he's
4 not been placed under oath here, but has proffered to the Court
5 that I made a decision a year ago or so that he could testify;
6 that the statute with permissive language -- I don't remember
7 making that decision, but --
8 MR. OSTRONIC: Your Honor, you did not --
9 THE COURT: No, I did not allow him to.
10 MR. OSTRONIC: You didn't --
11 THE COURT: Oh.
12 MR. OSTRONIC: It didn't come up because he didn't
13 testify in that matter.
14 THE COURT: Oh, it didn't come up. Oh. Okay.
15 MR. OSTRONIC: That's all.
16 THE COURT: Then he's -- okay, sorry. I
17 misunderstood what --
18 MR. OSTRONIC: That --
19 MR. KIMBERLIN: I said Judge --
20 THE COURT: Because he, you can tell --
21 MR. KIMBERLIN: Judge --
22 THE COURT: -- I have no memory really directly of
23 that hearing, but I think you suggested that other judges of
24 the bench here on the Circuit Court and in the District Court
25 have made conflicting decisions with respect to how to

22
1 interpret the statute. So --
2 MR. OSTRONIC: Your Honor, could I just ask --
3 THE COURT: Yes.
4 MR. OSTRONIC: I'll wait for you to rule, and then
5 I'll --
6 THE COURT: Okay. I can understand that. Yes, I'm
7 still kind of deciding.
8 MR. OSTRONIC: Well, Your Honor, then I'll just throw
9 out that --
10 THE COURT: Okay.
11 MR. OSTRONIC: -- for the statute to say "may not
12 testify," it would mean, if it was permissive, then it would
13 not serve any purpose to have the thing there at all. I mean,
14 it just wouldn't have any purpose at all. Because you can
15 always, the right to testify, the statutory right is not a
16 constitutional right, as we discussed.
17 And I mean, I can cite some case law that's, where
18 they, for instance, in Horry v. State (phonetic sp.), that no
19 case may be -- what'd he say -- okay. But I was going to say
20 like, and Your Honor, there's a case, Horry v. State, a
21 convicted perjurer is incompetent as a witness in Maryland if
22 qualification as a witness is generally deemed to serve the
23 collateral purpose of barring evidence of, thought not to be
24 entitled to credence. It is not looked upon as an additional
25 penalty imposed upon the perjurer himself.

23
1 And that's Horry v. State, which was a 1969 -- no, it
2 was, I believe, later than that actually, so -- it was 1980 --
3 I'm sorry -- it was a 1982 decision, Horry v. State.
4 MR. KIMBERLIN: Your Honor, could I say one thing?
5 THE COURT: Yes.
6 MR. KIMBERLIN: You know, this rule or statute was
7 enacted 100 or more years ago. There's been a lot of changes
8 in Maryland statute since then, including the peace order
9 statute. And the peace order statute obviously envisions
10 having someone testify about something that happened that would
11 get you a peace order.
12 And you know, if, like I said a minute ago, if
13 somebody attacked me, I couldn't testify that they attacked me?
14 The peace order statute allows me to testify. And so, you
15 know, where's the precedence? Some arcane rule that was
16 enacted 150 years ago, or something, that no other state in the
17 country has, or some modern peace order statute that allows
18 people to testify when there's circumstances that warrant it.
19 And that's why Judge Jordan specifically said, right
20 on the record, he says, "This statute's unconstitutional." He
21 says, "I would find it unconstitutional."
22 And I have that exact issue on appeal in the Court of
23 Appeals, Special Court of Appeals, right now, asking the Court
24 to find this statute unconstitutional because it conflicts with
25 due process and equal protection, and the statutory rights that
24
1 every person in Maryland is given.
2 You can't, you can't take a class of people and treat
3 them differently. That's not, it's not the way the law works
4 anymore. Maybe 150 years ago, you could do that. You know,
5 150 years ago, a lot of people weren't allowed to testify. But
6 right now, people are. And that's why you should allow it.
7 MR. OSTRONIC: Your Honor, he's right, I mean, the
8 rules have changed over the years, and we've, we allow people
9 now to testify, but the one thing that has not changed since
10 the common law was, which we adopted right at our founding here
11 in the State of Maryland, was the, was that convicted perjurers
12 cannot testify, and that had not changed. Even though the
13 court, our legislature has adopted other rules, the one thing
14 that has not changed is perjury.
15 MR. KIMBERLIN: And you know, one other point, I
16 noted that the Attorney General has asked the legislature to
17 overturn this statute, to pass a legislation to overturn it,
18 because they say exactly what I just said. If you're a victim
19 of violence, a woman who's beaten by her boyfriend, who's just,
20 had been convicted of perjury 16 years ago, or whatever, if she
21 had been convicted, then, then the Attorney General has said,
22 "Victims have a right to testify."
23 MR. OSTRONIC: Mr. Kimberlin is not the victim here,
24 Your Honor. He, he's not.
25 THE COURT: All right. Well, this is what I'm going

25
1 to do. I think the cases really conflict with the statute, but
2 the cases, there's more than one case, and the most recent one,
3 as I said, is this Colkley decision, which is 2012, reversed on
4 other grounds by Fields.
5 MR. OSTRONIC: That Colkley L-E-Y, Your Honor?
6 THE COURT: C-L, Colkley, C-O-L-K-L-E-Y v. State --
7 MR. OSTRONIC: C-O-L-K-L-E-Y --
8 THE COURT: -- 204 Md. App. 593.
9 MR. OSTRONIC: That's 212 -- okay.
10 THE COURT: 212 -- it's basically citing back to the
11 Florentine case. And the Florentine case talks about one sort
12 of a suspected or accused of perjury as being different than --
13 MR. OSTRONIC: Your Honor, I remember reading that
14 case.
15 THE COURT: -- convicted after that. Okay. So, and
16 then there are other cases that follow that line of analysis,
17 and also talks about a judge's opinion as to whether or not
18 someone's testimony is truthful is not the determining factor.
19 It's whether or not there's an actual conviction.
20 So it does conflict with 9-104, as I see, as I read
21 it, which is permissive language. Mr. Kimberlin has raised a
22 really good point with respect to victims of crime, serious
23 crime, that they wouldn't be able to testify; however, it's
24 really not up to me to change the statutes, and I'm going to go
25 with the case law.

26
1 Sorry, Mr. Kimberlin. I think that since it's
2 permissive language in the statute "may or may not," and then
3 the cases say "shall not" if there's been a conviction, I'm not
4 going to allow you to testify. And I would be very pleased to
5 see a decision from one of the appellate courts clarifying what
6 I think is really a conflict here between the case law and the
7 statute.
8 So I understand it was a long time ago, but I don't
9 really have the authority to ignore the case law.
11 THE COURT: Okay?
12 MR. KIMBERLIN: Can I make an opening statement then,
13 and --
14 THE COURT: You really can't because then you'd be
15 acting as an attorney, which you're not an attorney either, if
16 I recall correctly. I think maybe your dad --
17 MR. KIMBERLIN: But I mean, I'm --
18 THE COURT: -- is or something like that. I remember
19 that.
20 MR. KIMBERLIN: I'm the father of the victim. I
21 mean --
22 THE COURT: Right.
23 MR. KIMBERLIN: -- and I have to --
24 THE COURT: She's 15, right? So she can tell us what
25 happened.
27
1 MR. KIMBERLIN: Yeah, but somebody has to present the
2 case. I have all the evidence. I have all the documents, you
3 know, and --
4 THE COURT: Okay. But you could have hired an
5 attorney for your daughter.
6 MR. KIMBERLIN: I could have hired an attorney, I
7 guess, but I haven't had, I didn't do that in the District
8 Court, and the District Court let me present all the evidence
9 that I'm going to present here. And you know, I mean, how can
10 you -- a father has a right to, to come in and present his case
11 for the daughter. I mean, it', that's elementary. It's, I
12 mean, she, she can't do it herself.
13 THE COURT: You know, I don't know. You do have a
14 problem here which, if you had hired an attorney, you wouldn't
15 have the problem.
16 So I'm not going to allow you to act as a lawyer.
17 You're not barred in the State of Maryland. You really can't
18 act as an attorney for your daughter. And I think the cases
19 make -- as I said, conflict with the statute, but they make you
20 incompetent to testify, so I don't know in what capacity you'd
21 be filling me in on what your daughter's case is.
22 Can't be a lawyer, since you're not barred. Can't be
23 a witness. So --
24 MR. KIMBERLIN: So, so my daughter's a victim. I'm
25 a --
28
1 THE COURT: Your daughter is 15. I left --
2 MR. KIMBERLIN: I'm a victim too.
3 THE COURT: Would you get the file? I left it on
4 my --
5 MR. KIMBERLIN: I'm a victim too, you know, it is
6 Brett Kimberlin on behalf of his daughter, you know, and so --
7 THE COURT: Is it on behalf of yourself as well?
8 MR. KIMBERLIN: Well, you, the --
9 THE COURT: Did you -- I left the file on my desk.
10 My law clerk's getting it. Sorry.
11 MR. OSTRONIC: No, Your Honor. It's just Brett
12 Kimberlin on behalf of Kelsey Kimberlin, the way it's --
13 MR. KIMBERLIN: And Brett Kimberlin on behalf of, I
14 mean, I'm on behalf of her. What, what more is it? You know,
15 I'm her father. I'm, you know, just as any father could, could
16 come in and be on his child's behalf. How can you work
17 otherwise?
18 THE COURT: Right. No, I understand that part. I
19 was just asking if it was Brett Kimberlin versus William Hoge,
20 and Brett Kimberlin, on behalf of your daughter, versus the
21 respondent. But it's not. It's just one.
22 MR. KIMBERLIN: Well, I mean, but are you, but are
23 you saying that, I mean, that I wouldn't be able to testify
24 even if it was me and my daughter? I mean --
25 THE COURT: In this particular case? Yes. I mean,

29
1 if the Court of Appeals or Court of Special Appeals tells us
2 something else after they decide your case that's up there,
3 then maybe in the future, if there's another case that you
4 bring, it might be different, but that's how I interpret the
5 law right now.
6 So would your daughter like to testify?
7 MR. KIMBERLIN: Well, what, is she just going to get
8 up there and talk without any evidence? I mean, we're here
9 under Grace's Law, basically. Grace's Law, you know, prohibits
10 people from harassing minors online. That's what we're here
11 about.
12 THE COURT: All right. Your daughter can tell me
13 what's going on with Mr. Hoge -- I'm sorry, is it, say it
14 again.
15 MR. OSTRONIC: Hoge.
16 MR. HOGE: Hoge, hard G.
17 MR. OSTRONIC: Hard G. Hoge.
18 MR. HOGE: Hoge.
19 THE COURT: Hoge.
20 MR. OSTRONIC: Sorry.
21 THE COURT: Hoge. Okay. All right. So let me have
22 you step --
23 MR. KIMBERLIN: Can I consult, can I consult with her
24 a second?
25 THE COURT: Sure.

30
1 (Discussion off the record.)
2 MR. KIMBERLIN: I mean, you see what's, what I'm
3 dealing with?
4 THE COURT: I do.
6 THE COURT: And is her mother here today?
7 MR. KIMBERLIN: Yes, her mother's right here.
8 THE COURT: Would her mother like to --
9 MR. KIMBERLIN: Her mother's right here.
10 THE COURT: Call someone else as a witness. Her
11 mother could be a witness.
12 MR. KIMBERLIN: Okay. All right. I'm going to
13 call --
14 MS. TETYANA KIMBERLIN: I can, I can go for a
15 witness, or whatever, just testify, whatever you want me to do.
16 THE COURT: Are you the mother?
17 MS. TETYANA KIMBERLIN: Yes, I am the mother.
18 THE COURT: All right. Come on up.
19 MS. KELSEY KIMBERLIN: I don't know how to do this
20 kind of stuff. What I'm supposed to do? I'm not doing this.
21 MR. KIMBERLIN: Shush. Don't, Kelsey, don't
22 (unintelligible).
24 THE COURT: All right. Please have a seat.
25 TETYANA KIMBERLIN
31
1 called as a witness on behalf of the appellant/plaintiff,
2 having been first duly sworn, was examined and testified as
3 follows:
4 DIRECT EXAMINATION
5 BY THE COURT:
6 Q All right. Thank you.
7 A Tetyana Kimberlin.
8 Q All right, Ms. Kimberlin. All right. And do you
9 have any children?
10 A Yes. I have two.
11 Q Okay. And what are their names and how old are they?
12 A Carina's (phonetic sp.) 11 and Kelsey, 15.
13 Q Okay. And what is it that's bringing you to court
14 today?
15 A The problem is, the gentleman on the right, Mr.
16 Hoge -- I can't pronounce his name, sorry -- but --
17 Q Yes.
18 A -- is being harassing my daughter online, which is
19 15-year-old Kelsey Kimberlin. And it gets to the point that
20 she gets frustrated in being teased at school by the kids.
21 And the whole story started, Your Honor, with my
22 husband and Mr. Hoge, they had some kind of problems with each
23 other. But for some reason, Mr. Hoge has to put my minor
24 daughter in the middle of this.
25 Q Which one?
32
1 A And --
2 Q Which one is being put in the middle?
3 A Kelsey, the 15-year-old.
4 Q The 15-year-old? Okay.
5 A She's 16 now. Sorry.
6 Q 16. Okay. All right.
7 A Yes. And it's not fair for me, as a mother, to see
8 that, that my child going through this. I asked Mr. Hoge,
9 myself, personally, to leave my daughter alone. You know,
10 don't put her in the middle of growing-ups, whatever's going
11 on, in between it.
12 But for some reason, my child gets involved in that,
13 and it's getting out of the hand, because it's online, you
14 know. And honestly, Your Honor, I haven't read those things,
15 because I can't handle it, the reading online, whatever they
16 post. Because you know, they talking about sexuality about my
17 child --
18 MR. OSTRONIC: Objection, Your Honor. She hasn't
19 read it. She can't tell what it's about.
20 THE COURT: Okay. Sustained.
21 THE WITNESS: Well, I heard of it.
22 BY THE COURT:
23 Q All right. Have you seen how it's affected your
24 daughter, Kelsey?
25 A Yes, I do, because she comes home, sometimes her

33
1 friends, and go and search right now is Google, everything out
2 there, Twitters, Facebook, everything out there. And they know
3 about her father's past, and, and they put Kelsey in the middle
4 of that, that, that she is the daughter of Brett Kimberlin,
5 that they putting her down. And I don't want my daughter's
6 life to be ruined because of that gentleman, Mr. Hoge, or
7 anybody else who's out there.
8 If you have a problems with my husband, deal with
9 that.
10 MR. OSTRONIC: Objection, Your Honor.
11 THE WITNESS: Do not put my children in that --
13 THE WITNESS: -- in the middle.
14 THE COURT: Sustained. All right. Sustained.
15 BY THE COURT:
16 Q How have you seen that affecting your daughter? What
17 have you observed?
18 A She is being stressed out. She needed therapy to go
19 to. She is, she is being crying. She's, you know, because of
20 the kids talking about it, the kids at school talking about
21 it --
22 MR. OSTRONIC: Objection, Your Honor. Hearsay.
23 BY THE COURT:
24 Q All right. You've --
25 THE COURT: Sustained.

34
1 BY THE COURT:
2 Q You've seen her crying?
3 A Yes.
4 Q You put her in therapy?
5 A Yes.
6 Q What else have you personally observed?
7 A Well, she's being emotionally distressed a little bit
8 because of all these things happening. And they put her in
9 that position, that she's end up in the middle of the fight of
10 growing-ups.
11 Q Now, what have you seen? What have you seen with
12 your own two eyes about her that leads you to believe that
13 she's distressed?
14 A Well, she is --
15 Q You've seen crying. What else?
16 A She's ashamed. She's, she got shy. She doesn't want
17 to go to school because kids talking about it, you know. And
18 plus, she has to face the teachers because teachers knows
19 everything too.
20 Q And when did this start?
21 A About, I don't know, a year, two, I don't know. It's
22 been for, you know -- Your Honor, I just want, don't want my
23 daughter being in the middle of this. She is 16. She has a
24 life ahead of her. She is going to have a marriage and kids,
25 and I do not want my daughter being putting down on the web

35
1 pages, or Googles, or Twitter. I --
2 MR. OSTRONIC: Objection, Your Honor. She --
3 THE WITNESS: I do not like to see that.
4 MR. OSTRONIC: She hasn't read any of this, so --
5 THE COURT: All right. All right. Sustained.
6 BY THE COURT:
7 Q Okay. Now, you indicated that you had a conversation
8 with Mr. Hoge about this?
9 A Yes.
10 Q When was that conversation?
11 A Yes.
12 Q When was it?
13 A That was 2000 and, I believe, 13, or so, or 12. I'm
14 not sure exactly, Your Honor. I don't keep those records
15 because I don't deal with those people. You know, I dealt with
16 them a little bit, but I figured out what kind of people are
17 they, and they going after my, I asked them not to go after my
18 babies.
19 Whatever they have or deal with my husband, they can
20 deal with it. But to leave my kids alone, my children, who
21 have a life ahead of them, alone. I don't care what's going on
22 between growing-ups. But kids has nothing to do with that.
23 So my daughter should be not there online on Google,
24 and putting down that, that whatever my husband has something
25 to do, that's not part of my daughter's life, Your Honor. Do

36
1 you understand?
2 Q Now, when you talked to Mr. Hoge, was it in person,
3 or over the phone, or some other way?
4 A I do not remember, Your Honor.
5 Q Okay.
6 A But I remember I send him some e-mails. I might have
7 them, but I'm not sure if I have them or deleted them.
8 Q Do you have them with you?
9 A I don't know. It's maybe on my phone. I'm not sure.
10 I'm not sure. But I, I specifically, I ask, the other, the
11 group gentleman in them --
12 MR. KIMBERLIN: Objection, Your Honor.
13 THE WITNESS: Whatever.
14 MR. OSTRONIC: Other party that has nothing to do
15 with this.
16 THE COURT: Okay. I'm going to sustain that
17 objection. All right. Let me see.
18 BY THE COURT:
19 Q Okay. And if you'll just step down for a minute and
20 go see what Mr. Kimberlin's holding up. What --
21 MR. KIMBERLIN: Tania. Tania.
22 THE WITNESS: Okay.
23 BY THE COURT:
24 Q Wait, wait, wait, right there.
25 A Oh. Oh.
37
1 Q I just want you to look at that paper.
2 A Right here. Oh.
3 MR. KIMBERLIN: This was your e-mail --
4 BY THE COURT:
5 Q Is that your e-mail that you --
6 THE COURT: No, Mr. Kimberlin. Mr. Kimberlin.
7 MR. KIMBERLIN: -- that you sent to him where you
8 were telling him to --
9 THE COURT: Mr. Kimberlin.
10 MR. KIMBERLIN: Yes, ma'am?
11 THE COURT: Please don't help her. Okay?
12 BY THE COURT:
13 Q Ms. Kimberlin, is that the e-mail you were talking
14 about, or something else?
15 A Well but, this one is -- yes, it is.
16 Q All right.
17 A It's my e-mail.
18 Q Please do me --
19 A Oh, I'm sorry.
20 Q Well, just hand it to my clerk, if you would --
21 MR. OSTRONIC: Can I look at it, Your Honor?
22 BY THE COURT:
23 Q -- and you can come back up here.
24 THE COURT: Yes, I'm --
25 MR. OSTRONIC: Your Honor, can I look at it?

38
1 THE COURT: Yes.
2 MR. OSTRONIC: Thank you.
3 MR. HOGE: Yeah, that's mine. I'm authenticating it.
4 MR. OSTRONIC: Okay.
5 THE COURT: All right. Let's have that marked as
6 Petitioner's, or Appellant's 1.
7 (The document referred to was
8 marked as Appellant/Plaintiff's
9 Exhibit No. 1 for
10 identification.)
11 THE COURT: I'll take it up here. Thank you.
12 BY THE COURT:
13 Q All right. Now, Ms. Kimberlin, that document has
14 been marked as Appellant's Exhibit No. 1. What is that? What
15 is it?
16 A What, what is what?
17 Q That document you're holding in your hand.
18 A This is an e-mail exchange between me and Mr. Hoge.
19 Q Okay. What's the date on there?
20 A The date is on here, August 16, 2013.
21 Q Is that an e-mail that you wrote to him?
22 A And, and -- I don't know, it's confusing. The other
23 one says August 26 --
24 Q I want to know about that -- is there, are there two
25 on there? Are there two different e-mails on there?

39
1 A No, from me to him is August 16th.
2 Q On that document?
3 A Yes. But I seen --
4 Q Okay.
5 A I e-mailed back to him August 16, 2013, yes. To him.
6 Q Okay. All right. So that's not, that's an e-mail
7 that you wrote to him --
8 A Yes.
9 Q -- and, okay, and you received back from him?
10 A Yes. I did receive in here, yes --
11 Q Okay. All right.
12 A -- from him to me.
13 Q I'll take that. Let me see that. All right.
14 THE COURT: The Court's going to receive this
15 document into evidence.
16 (The document marked for
17 identification as
18 Appellant/Plaintiff's Exhibit No.
19 1 was received in evidence.)
20 BY THE COURT:
21 Q Okay. All right. And is there anything else you'd
22 like to tell me about why your daughter's seeking a peace
23 order?
24 A Because they have to stop writing, writing stories
25 about my 16-year-old daughter. For a gentleman, Mr. Hoge age,

40
1 this is so unappropriate to trash my daughter anyhow --
2 MR. OSTRONIC: Objection, Your Honor. She said she
3 hasn't read --
4 THE WITNESS: -- in any matters --
5 MR. OSTRONIC: -- so she can't possibly know if it's
6 correct.
7 THE WITNESS: Even talk about, he has not right --
9 THE WITNESS: -- to talk about her. And
10 specifically, I ask to leave my family alone.
11 BY THE COURT:
12 Q Okay. All right. Anything else you'd like to tell
13 me about this?
14 A I don't know. I mean, I just, I just want him to
15 stop harassing my daughter.
16 Q All right.
17 A That's all.
18 THE COURT: Would you like to ask --
19 THE WITNESS: That's all.
20 THE COURT: -- questions?
21 MR. OSTRONIC: Yes, Your Honor. May I see the e-
22 mail?
23 THE COURT: Yes.
24 He's going to ask you some questions, okay? And then
25 after that, you can tell me anything else.

41
1 CROSS-EXAMINATION
2 BY MR. OSTRONIC:
3 Q Ms. Kimberlin, you sent the e-mail to Mr. Hoge on, it
4 looks like, August 16th, and you said that you were leaving in
5 two weeks?
6 A Yes.
7 Q Okay. And you asked him to remove all the posts, et
8 cetera, I don't want my name going -- and it was about you.
9 And why was Mr. Hoge raising money for you?
10 A Well, because he offered me his help when I had a
11 problems with my husband.
12 Q Okay. And so he raised money to do what?
13 A To help me with the lawyer.
14 Q And did he, in fact, provide a lawyer for you?
15 A He did, but I refused all the donations and the
16 lawyer then. I signed all the papers too.
17 Q Okay. So then did you pay the lawyer yourself?
18 A No.
19 Q Okay. So then how did the lawyer get paid?
20 A I don't know how he, she did got paid.
21 Q Okay. And there's nothing in here that -- Mr. Hoge
22 wasn't writing about you or your daughter --
23 A I said family specifically on it, sir. I said leave
24 my family alone. Family is my kids and me, and of course, my
25 husband, since --
42
1 Q The posting --
2 A -- I'm married to him, yes.
3 Q I don't -- okay. You asked to remove things, but
4 that's not, in and of itself, indicated that there's any
5 derogatory things in this.
6 A Family is family, sir.
7 Q I'm just asking --
8 A If you don't have family, I'm sorry you don't
9 understand what family means.
10 MR. OSTRONIC: Your Honor, I just wanted to point
11 that out. That's all I have, Your Honor.
12 THE COURT: Okay. Thank you.
13 REDIRECT EXAMINATION
14 BY THE COURT:
15 Q All right. And Ms. Kimberlin --
16 A Yes.
17 Q -- since the appellee's counsel brought this up, what
18 was the lawyer for?
19 A The lawyer was to get me a divorce --
20 Q Are you divorced now?
21 A -- from Mr. Kimberlin. No, we're not divorced. We
22 settled, we were going to separate, but we getting along, and
23 you know, we, we together and talking out each other, so --
24 Q Did you file for divorce?
25 A No, I didn't file for divorce. I don't -- no. We

43
1 was going to, but then I, I refused to continue with it, and I
2 refused the lawyer's -- I forgot the words, I'm
3 sorry -- representation.
5 MR. OSTRONIC: Your Honor, can I just have one, on
6 that matter --
7 RECROSS EXAMINATION
8 BY MR. OSTRONIC:
9 Q It wasn't a divorce that you were going for. That
10 was dueling protective orders, is that not right? It wasn't
11 divorce; it was a protective order and --
12 A No, but she was going to help me with it.
13 Q Later on, maybe, that that --
14 A Yes.
15 Q -- the instance that we are talking about right there
16 was actually --
17 A Yeah, but sir, you have to understand --
18 Q -- for a protective order?
19 A -- I don't understand the law.
20 Q Okay. I'm not asking --
21 A So whatever was it, yes, it was, it was part of the,
22 yes, we had a, that Mr. Kimberlin got the order against me, and
23 I got the order against him --
24 Q Correct.
25 A -- and it was going back and forward. But that's not

44
1 the point. The point is, I refused a lawyer after, you know --
2 Q You stopped using her, but she was there to help you
3 in that one instance, correct?
4 A Yeah, just the one --
5 Q Okay.
6 A Yes.
7 Q Okay. That's all we're saying.
8 A Just once, yes.
9 Q So the issue here is that you --
10 A Yes. Yeah, she did.
11 Q -- had the help of an attorney that Mr. Hoge helped
12 you arrange. Thank you.
13 MR. OSTRONIC: That's all. Thank you, Your Honor.
14 THE COURT: Okay. All right. Thank you. You may
15 step down.
16 (Witness excused.)
17 THE COURT: All right. Kelsey? Kelsey?
18 MS. KELSEY KIMBERLIN: (Unintelligible).
19 THE COURT: It's going to be all right.
20 MS. KELSEY KIMBERLIN: (Unintelligible).
21 THE COURT: It's going to be all right.
22 MS. KELSEY KIMBERLIN: How do you ask for
23 (unintelligible)?
24 THE COURT: It's going to be all right. Just raise
25 your right hand. I want to hear from you. It's going to be

45
1 all right.
2 THE COURT: All right. Thank you. All right. Have
3 a seat.
4 KELSEY KIMBERLIN
7 follows:
9 BY THE COURT:
10 Q All right. I know that you don't like this, but I
11 want to hear about --
12 A Well, it's not going --
13 Q -- what's going on.
14 A It's not going the right way --
15 Q Well --
16 A -- so I think we need an extension because I cannot
17 do this --
18 Q All right.
19 A -- by myself. So I need, I can't.
20 Q All right. Kelsey, we're not going to do an
21 extension. You're here. I want to hear about what's going on.
22 Tell me your -- it's going to be all right -- tell me your full
23 name.
24 A Kelsey Angela Kimberlin.
25 Q Okay. How old are you, Kelsey?

46
1 A I'm 16 now.
2 Q 16.
3 A Everyone keeps forgetting.
4 Q Okay.
5 A Long story short, for the longest time, these people
6 have been harassing our family, and since middle school. I
7 left my middle school because I got bullied out of there
8 because the people would talk about my dad going to jail, and
9 about all the Tweets they would see about my family, and they
10 would see about me on Twitter, or see online about my family.
11 They would mention everything that was said and make fun of me
12 for it, so I left my middle school because of that reason.
13 I went to my high school. The Tweeting started
14 again. Everyone found out again. I moved to a different high
15 school this year. Again, I'm at a different high school now.
16 And long story short, people found out again at the beginning
17 of the year.
18 And what, and the main reason right now that we're
19 focused on on Grace's Law is that there was a post about me,
20 about watching me at a basketball game, inappropriately, and
21 have been talking about how I'm turning 16 soon, and how it's
22 like an opportunity.
23 And if I can go find the paper, I can come show you
24 the evidence of it.
25 Q Okay. Go find the paper. I want to see it.

47
1 A But it's the fact that --
2 Q I want to see it.
3 A This is what --
4 Q Here, bring it on up here. You can have a seat.
5 Have a seat there. Just give me a minute.
6 THE COURT: And I'm going to have the clerk show it
7 to the other side. That's Megan, the other, my law clerk.
8 It's been marked as Appellee's Exhibit 2.
11 Exhibit No. 2 for
12 identification.)
13 MR. HOGE: Give it back to the Judge or --
14 MR. OSTRONIC: Is that the -- oh, here, you're fine.
15 Thank you. Sorry. I thought it was something. You're good.
16 MR. HOGE: No.
17 BY THE COURT:
18 Q All right. Why don't you take that back. I'm going
19 to ask you a couple questions before I take a look at it. All
20 right. And that, look, take a look --
21 A Do I have to take it back to --
22 Q No. Just right there. Right in front of you. Take
23 a look there, Kelsey, at what's marked as Plaintiff's Exhibit
24 2.
25 A Uh-huh.
48
1 Q Do you recognize that document?
2 A I don't recognize this, but I know this document.
3 Q Okay. I can't see what you're pointing to.
4 A Oh, I'm sorry. I have never seen that.
5 Q Yes, you've never seen the green sticker, but aside
6 from the green sticker, do you recognize the document?
7 A Yeah.
8 Q Okay. What is that?
9 A Well, it was, it was, I don't know where it was
10 posted, but my dad showed me it, and I know that I read the
11 comment before when I was here testifying about it before.
12 Q Okay. All right. Well, let me take a look at that.
13 A And I'll say that.
14 Q Okay. All right. This is -- let's see what the date
15 is on here -- March 11th, 2015. Is that about when you saw
16 this? This year, this March?
17 A Yeah.
18 Q Okay. Okay. So --
19 MR. HOGE: Not March 11th.
20 MR. OSTRONIC: It can't be March 11th, Your Honor.
21 THE WITNESS: Wait, now, what date, what's the date
22 today?
23 THE COURT: Or maybe that's when it was printed out.
24 MR. OSTRONIC: It might have been when it was printed
25 out, Your Honor. It can't be March 11.

49
1 THE COURT: Oh. Posted March 3rd, 2015.
2 MR. OSTRONIC: Okay. That makes more, it makes
3 more -- I'm just getting for the record --
4 THE COURT: Okay. Yes, it must have been printed out
5 March 11, 2015.
6 THE WITNESS: (Unintelligible.)
7 BY THE COURT:
8 Q Okay. I'm sorry. Go ahead. So then what else, why
9 else are you here? You said that you've been getting, there's
10 been a lot on the Internet. Is that to you directly?
11 A On the Internet --
12 Q Yes.
13 A -- each and single, every single one of these people
14 are here.
15 MR. OSTRONIC: Your Honor, objection.
16 THE WITNESS: -- and --
17 MR. OSTRONIC: Every one of these people --
18 THE COURT: Overruled.
19 THE WITNESS: They --
20 BY THE COURT:
21 Q When you're saying "these people," you're pointing to
22 different people in the courtroom. Do you know who they are?
23 A Well, Hoge, that's Hoge, that's Walker.
24 Q Okay. Which one is Walker?
25 A That one.
50
1 Q In the white shirt raising his hand?
2 A Yeah, with the glasses.
3 Q Okay. And --
4 A And that is Hoge.
5 Q And that's Hoge there. I know that. Yes.
6 Actually --
7 A So --
8 Q Okay.
9 A -- them two both have pages on Twitter. And every
10 single day, they're -- well, at least, I think, right now, they
11 have not been Tweeting because we are in the middle of a court
12 case, and they don't want to get in more trouble.
13 But their entire Twitter pages are about my whole
14 entire life of my family, and every time I go to court with my
15 dad, or if I go anywhere, they say that my dad is like a
16 pedophile, that, pedophilic towards me and my friends, that he
17 watches us, when he really doesn't do any of that stuff.
18 He's --
19 MR. OSTRONIC: Objection, Your Honor. This is all
20 hearsay.
21 THE WITNESS: All that kind of stuff --
22 MR. OSTRONIC: If she has the Tweets, we'll be like,
23 I can see them, but she just can't testify to this as --
24 THE WITNESS: Am I allowed to get my phone to go on
25 Twitter?
51
1 BY THE COURT:
2 Q Sure.
3 A To go to his --
4 Q Sure.
5 A -- Twitter page to find every single --
6 Q Sure.
7 A All right. Look at the --
8 THE COURT: I'll sustain the objection.
9 THE WITNESS: (Unintelligible) at the
10 (unintelligible) make sure I get to --
11 MR. KIMBERLIN: Here. Just take that.
12 THE WITNESS: And if this isn't enough, I could go in
13 my phone and find it but it might take some time.
14 BY THE COURT:
15 Q Why don't you just grab your phone and bring it up
16 with you. Just bring it on up here.
17 MR. HOGE: I think we want to see those and --
18 MR. OSTRONIC: I know. They'll take it.
19 THE WITNESS: Long story short is just they talk,
20 just (unintelligible).
21 BY THE COURT:
22 Q Okay.
23 A They just nonstop talk about everything that we do,
24 and everything I do, and --
25 Q All right. All right.

52
1 A -- comment.
2 THE COURT: Let's, I guess we'll go ahead and mark
3 these as a group, Appellant's Exhibit --
4 THE CLERK: This is all one exhibit, Your Honor?
5 THE COURT: 3. Yes.
6 THE CLERK: Okay.
9 Exhibit No. 3 for
10 identification.)
11 MR. HOGE: This stuff down here. Yeah, that's the
12 forged stuff.
13 MR. OSTRONIC: This is forged?
14 MR. HOGE: Yeah. Can't authenticate it. Let me see
15 these. Those are, I can't, those are just cut off. I don't
16 know that they're authentic. Okay. Good. That's not
17 authenticated.
18 MR. OSTRONIC: Your Honor, I'm going to object only
19 because they can't be authenticated as coming from Mr. Hoge.
20 And I will proffer that if Mr. Hoge was asked about this, he
21 would not authenticate those. We've seen those before.
22 THE COURT: I'm going to overrule the objection.
23 They come from WJJHoge@WJJHoge, and they have his photograph on
24 here, so I'm going to --
25 MR. OSTRONIC: You're right, Your Honor, but they,

53
1 that, those are photo shopped on there. That's what we're
2 going to say. I'm just telling, I'm just proffering, Your
3 Honor, that's what the --
4 THE COURT: Okay.
5 MR. OSTRONIC: So Mr. Hoge, I've gone over it with
6 Mr. Hoge. We had this in a prior case. And then when we got
7 out, we looked it up. But that, those are not coming from Mr.
8 Hoge directly.
9 THE WITNESS: Yes, they are.
10 THE COURT: Okay. All right.
11 MR. OSTRONIC: Those are not written by Mr. Hoge.
12 That's what I'm saying.
13 THE COURT: Okay. I hear you and I overrule your
14 objection.
16 THE COURT: Okay.
17 BY THE COURT:
18 Q So now showing you what's been marked as a
19 group -- here, go ahead and take this from me
20 again -- Plaintiff's Exhibit No. 3, do you recognize those
21 documents?
22 A I would have to reread these Tweets again, but I know
23 of them.
24 Q Okay. Do you recognize them?
25 A Yeah.
54
1 Q And what are they?
2 A Well, they're Tweets from Hoge about me --
3 Q Where, how did you --
4 A -- and my dad.
5 Q How did you come into possession of those Tweets?
6 A Well, long story short, there was, I was friends with
7 this girl named Cecile and Marley Hinkley (phonetic sp.), and
8 Marley Hinkley's parents were talking with Marley because a
9 bunch of people came over to Marley's house and told them about
10 my dad's criminal record because of online stuff.
11 Marley's parents researched my father heavily and
12 found every single thing about him, found all the Twitter
13 things, called all my friends' parents and told them --
15 THE WITNESS: -- not to come over --
16 MR. OSTRONIC: Hearsay.
17 THE WITNESS: -- and make sure I couldn't have
18 friends over because they saw that my dad was --
20 THE WITNESS: -- a pedophile on these websites, and
21 saw this guy's, they made this pedo bear of my dad, and so
22 people were not allowed at my house. Some people are friends
23 of mine are still not allowed at my house because they think my
24 dad is a pedophile, or they think that they're going to get
25 raped by my dad, or that I'm getting raped by my dad, because

55
1 these people -- that's one of the things I'm trying to do.
2 I'm just trying to get them to stop writing about me,
3 so my name's not associated with any of this online, to make
4 sure they're not going to be talking about me, or going and
5 attacking my articles.
6 Like I have, I have YouTube on YouTube. I got
7 Tweeted by Taylor Swift, and then it got written in the Gazette
8 about me. And they wrote on the article about me, and said
9 that I was the daughter of a terrorist and a rapist, and that
10 they should not be listening to her music and stuff. And
11 that's the main thing.
12 All I am trying to do --
13 MR. OSTRONIC: Your Honor, I object. She keeps
14 saying "they," and there's only one person here, and it has to
15 be specifically with him, if even if it's all applicable. This
16 is --
17 THE WITNESS: Well, okay. Then let's say Hoge.
18 THE COURT: Right.
19 THE WITNESS: But he also --
20 MR. OSTRONIC: I'm trying to tread lightly here, Your
21 Honor --
23 MR. OSTRONIC: -- but I have a client to worry about,
24 and --
25 THE COURT: All right. Sustained.

56
1 BY THE COURT:
2 Q All right.
3 A Hoge.
4 Q So Mr. Hoge is doing this?
5 A Hoge is doing it, but there is also Walker, but that
6 is a different case for another time. But I guess if we're, if
7 I have to say one name, I'm going to say Hoge for now, because
8 he is one of the people who has been doing this continuously
9 for years --
10 Q All right.
11 A -- and years.
12 Q Let me see that stack right there that you have in
13 front of you.
14 A And I'm, I'm 16 years old. Like what is the point?
15 Like you are like a, he's like a 60-year-old man, or something.
16 He's trying to go and talk about a 16-year-old girl online.
17 What -- I'm 16 years old. We are from different generations.
18 You are older.
19 You have your own family, your own life, and you're
20 online, Tweeting constantly about someone else's personal life.
21 Throughout your, like what do you do with your life that you
22 have to stay on a computer constantly, 24/7, going, updating
23 someone, when you live in a different state, constantly writing
24 about them, Tweeting about them online? What is the point?
25 He comes down here constantly to court to, because we

57
1 have to keep on getting peace orders, or something, to keep
2 them away, to stop writing about our family and our life.
3 Literally, every single time, he has to drive down here. It's
4 ridiculous. How much effort he's willing to put into this just
5 to come here to write about it on Twitter.
6 Every single time he comes to one, these judges
7 thinks, and we come to go to court, and we talk about
8 everything that has happened; or if we win a case, he'll be in
9 the next room, one of, Hoge will be in the next room, and will
10 be Tweeting about everything that is happening in court, or
11 Tweet about everything that happened. If I, if I start crying,
12 Kelsey's, daughter started crying today on the stand.
13 Q And for the record, just to make clear, because it's
14 being transcribed, you are crying now, right?
15 A Yeah, I am crying now.
16 Q All right.
17 A But like it's still a fact is that the ridiculous
18 that they, they, they're like, they're older men that are,
19 they've lived half their life, and they're wasting their time,
20 focusing on a man's 16-year-old daughter. And a fricking, I
21 have a sister who's only 11, and focusing on two, just their,
22 their children in general because they're obsessed with, they
23 have an obsession and a fascination with my dad and his life?
24 This is something that happened like years and years
25 ago. Like --
58
1 Q Do you consider this harassment?
2 A I consider it as harassment. It's been harassment
3 since the day one. It's been happening for years and years,
4 and nothing has been put to stop. Someone needs to come into
5 this thing, and we need to get, and this needs to stop. They
6 need to stop all their harassing me, stop Tweeting about my
7 family, they need to stop Tweeting about me, that need to stop.
8 I have had to move schools already three times
9 because of these people, and it needs to stop. And that's all
10 I'm asking. I am asking for him to stop Tweeting about me,
11 especially, to leave me alone, to leave my videos alone, to
12 leave the newspapers that write articles about me.
13 I am trying to work out just a future for myself, and
14 he keeps interfering with that future of my thing. People are
15 not going to write articles about my music anymore because
16 these people go and attack the people that write the articles
17 about, about me.
18 One of the judges that ruled in my, in our favor
19 once, they went and attacked him online, and called him names,
20 for winning our favor. They will not stop at anyone that goes
21 and rejects them.
22 MR. OSTRONIC: Objection, Your Honor, to the word
23 "they." Please --
24 THE WITNESS: Hoge. Hoge. God. And it's just, the
25 matter, matter of fact is that under Grace's Law, that if a

59
1 person, if a minor is being harassed by people online,
2 especially them, I think I have proven, I've moved schools
3 three times already. I've literally have not had people
4 allowed to come over or talk to me because of this.
5 I have had, I have had my music, and that I have
6 literally, like actually, like have been putting a thing too,
7 being attacked and people will not come and talk to me or write
8 articles because they will go and attack the people that do
9 anything to do, and to have anything to do with my family.
10 They want to like isolate us from the entire world
11 because they think we're the worst people in the world when, in
12 reality, they don't even have the right facts.
13 Q All right.
14 THE COURT: Would you like to ask any questions?
15 MR. OSTRONIC: Just a few, Your Honor.
16 CROSS-EXAMINATION
17 BY MR. OSTRONIC:
18 Q Ms. Kimberlin, the last time you saw Mr. Hoge in
19 person was where?
20 A Huh?
21 Q When was the last time you saw, before today, when
22 was the last time you saw Mr. Hoge?
23 A In that courtroom.
24 Q The court, two months ago, with the --
25 A I don't --
60
1 Q -- peace order?
2 A I don't know what day it was.
3 Q Okay. But the --
4 A And --
5 Q -- the last court hearing --
6 A Yeah.
7 Q -- we had on this case, correct? That was over
8 there. And the time before that, when was the last time you
9 saw him before that?
10 A I don't know.
11 Q Was it last August when your father's lawsuit against
12 Mr. Hoge was being heard?
13 A See, I don't know any of the dates or when I see you
14 guys, because I end up seeing you guys every other month or so,
15 so --
16 Q And where else would -- have you ever seen Mr.
17 Hoge --
18 A -- I don't know.
19 Q -- outside of a courthouse setting? Outside of a
20 courthouse setting, have you ever seen Mr. Hoge?
21 A Not since he went to go talk to my mom.
22 Q Okay. That was --
23 A During my parents' sort of a divorce. That's not
24 even happening.
25 Q Okay. So that was several years ago?

61
1 A Yeah.
2 Q So you have not personally, outside of a courthouse
3 setting, you have not personally been in the same company with
4 Mr. Hoge, correct?
5 A Correct.
6 Q Mr. Hoge ever called you?
7 A No.
8 Q Has he ever sent you an e-mail?
9 A No.
10 Q Has he ever Tweeted directly to you?
11 A No, but he has Tweeted --
12 Q No --
13 A -- about me as --
14 Q No. Has he ever Tweeted directly to you?
15 A No --
16 Q Has he ever --
17 A -- but he has --
18 Q Has he -- no.
19 A -- requested to follow me on Twitter.
20 Q Well, did he?
21 A And then I blocked him.
22 Q Okay. Do you --
23 THE COURT: When was that?
24 THE WITNESS: It was --
25 Dad, do you have --

62
1 I need to look through the papers, but it was a few
2 months ago, but I don't know. I don't know dates at all.
3 THE COURT: Okay.
4 THE WITNESS: All right, here. Can I, am I allowed
5 to --
6 THE COURT: Sure.
7 MR. OSTRONIC: Was it a few months ago? When was it?
8 MR. HOGE: It would have been like last August, but
9 yeah, something like that, may have been.
10 MR. OSTRONIC: You didn't have, it was an accident,
11 right?
12 MR. HOGE: Yeah.
13 MR. OSTRONIC: I mean, you didn't try to follow
14 (unintelligible).
15 MR. HOGE: No.
16 MR. KIMBERLIN: Kelsey, I don't have the one from
17 Hoge. I have the one from Walker (unintelligible) on Facebook
18 right now.
19 MR. HOGE: Oh, yeah, it's all about (unintelligible)
20 brush on the phone.
21 MR. OSTRONIC: Huh?
22 THE WITNESS: Yeah, but I don't think we have any --
23 MR. KIMBERLIN: Right.
24 THE WITNESS: Because that's from a long time ago.
25 MR. HOGE: Yeah, on the phone, you could just brush

63
1 it out.
2 MR. OSTRONIC: I know that.
3 MR. KIMBERLIN: No (unintelligible) that.
4 THE WITNESS: No.
5 MR. KIMBERLIN: Oh, you might take this one, but --
6 THE WITNESS: Yeah -- no.
7 MR. KIMBERLIN: No, that's the thing. I don't know
8 if we have --
9 THE WITNESS: No.
10 MR. KIMBERLIN: No, because that, I don't that.
11 MR. OSTRONIC: Your Honor --
12 THE WITNESS: Wrong person.
13 MR. KIMBERLIN: That's it. I don't have --
14 THE WITNESS: The, he doesn't have it. The only one
15 we do have is of his friend, Walker. There's that.
17 THE WITNESS: All right. That doesn't concern him.
18 THE COURT: Okay.
19 MR. HOGE: I don't, I've never tried to call him.
20 MR. OSTRONIC: I don't think, yes, I don't think you
21 would have ever tried to call. That --
22 BY MR. OSTRONIC:
23 Q And to be clear, the only instance of anything about
24 you in the last -- well, the subject of the peace order request
25 was -- how did you find out? Did you read Mr., do you read the
64
1 blogs? How did you find out about it?
2 A I don't read the blogs anymore because they're not
3 worth my time, but my dad told me about it, and the fact that
4 this is happening, and I've had friends tell me about it, is
5 that to the point where it needs to be brought up, and it needs
6 to be stopped.
7 Q So how many -- and all, the whole summation, say the
8 last two years, how many times has Mr. Hoge written anything
9 about you particular? Mr. Hoge, not somebody, Mr. Hoge
10 directly.
11 A Well, he was associated with --
12 Q Okay.
13 A -- that, the, the watching the basketball game, and
14 he commented on it, and it had to do with me.
15 Q What was his --
16 A He might not have Tweeted --
17 Q What was his comment? What was his comment?
18 A He said I will be turning 16 in April soon.
19 Q Okay. And --
20 A And it doesn't matter --
21 Q Let me ask you this. Let me ask you this then. Can
22 anybody find out that information from other sources?
23 A Anyone can see it. It's online.
24 Q Right. Well, also, where would they have learned the
25 date? Do you have a blog? Do you have your own personal blog?
65
1 A I have my own website, but it doesn't --
2 Q And what's --
3 A It doesn't meet -- no, no, no, no, no. If I have my
4 own website and it has my age on it, and it has when my, like
5 my age --
6 Q Birthday, yes, right.
7 A -- and my birthday in April, that, it's still weird
8 that he has gone to --
9 Q It could --
10 A -- my website to find it out, and that he would write
11 on a website that someone is talking about watching me at a
12 basketball game; that he would even comment my age back to that
13 comment.
14 Q Okay. That's one --
15 A That is still harassing --
16 Q That's one mention in the last, what --
17 A It doesn't matter.
18 Q -- year?
19 A It's the fact that he will do it after this court
20 case, because he has not been Tweeting online because he, it's
21 a federal, it's, it's an interest of this Court. After this
22 court is done, and after we are done with these things, and if
23 we don't have a peace order, he's going to go online, he's
24 going to talk about it.
25 Q Did he --
66
1 A And we all know that's going to happen.
2 Q Did he go on -- wait.
3 A And that we're going to have --
4 Q Excuse me. Excuse me. Did he go on --
5 A That's the only reason --
6 Q Did he --
7 A -- you're talking about it right now --
8 Q Did he go on --
9 A -- is because he's in the clear.
10 Q Please. Did he go online after you lost the case at
11 the District Court level?
12 A I don't check that.
13 Q Then --
14 A I didn't, and I'm, it's just, it's the matter of
15 fact, and do we -- can I go?
16 Q In other words, you have no, we have nothing here,
17 nothing here that mentions -- we have one mention, and all he
18 said in that one was, the month, all he said was she'll turn 16
19 in a month. He was not part, it was, he was not the original
20 poster, or anything like that, right? It was just the one
21 mention? And on base of that, we're going to go harassment?
22 A We're going to go on harassment from the many of
23 years that this has caused, and the matter of fact that he
24 went, he went to go find a different site, talking about me,
25 about, somehow he was involved.

67
1 Because how would have he, how would he find a site
2 talking about someone watching me at a basketball game,
3 watching me, every single move? How would he find that? He
4 was personally, had to go to my website to find out my birthday
5 and age.
6 Q No.
7 A He would personally have to find this article, or
8 would have known about it, to comment on something like that.
9 The fact that he is a 60-year-old man, commenting on somebody
10 talking about watching a 16-year-old girl, under age, at a
11 basketball game, watching their every move --
12 Q Ms. Kimberlin --
13 A -- in a way up to --
14 Q Ms. Kimberlin --
15 A -- and writing their age back about being 16 is
16 disgusting.
17 Q Ms. Kimberlin, you heard your mother's testimony
18 earlier, right?
19 A I heard my mother's testimony.
20 Q Right. And that she was involved in a court case
21 that Mr. Hoge was helping her on.
22 A Oh, and --
23 Q And wait. And in the filing of that, it disclosed
24 the names and, of children and their dates of birth, et cetera,
25 so --
68
1 A Uh-huh.
2 Q -- it's not the matter of going online. That's shear
3 conjecture on your part.
4 A It's the matter that he found --
5 Q It's conjecture on your part.
6 A -- that one thing talking about me --
7 THE COURT: Is this a question, counsel?
8 THE WITNESS: -- under age.
9 MR. OSTRONIC: I'm just trying to, I'm just asking if
10 there's other --
11 THE COURT: You have to ask questions --
13 THE COURT: -- not make statements.
15 THE COURT: You're not testifying.
16 MR. OSTRONIC: Mea culpa. Mea culpa. I have nothing
17 else.
18 THE COURT: All right.
20 BY THE COURT:
21 Q When did you -- I'm showing you Plaintiff's Exhibit
22 3 -- when did you get that?
23 A I don't, I don't even know. This has been in past
24 court cases constantly, every single thing, because there's
25 been a bunch of papers. These have been brought up many of

69
1 times to judges, like this is, this is all, I've seen all of
2 this from the past court cases. I've had to go through this
3 year after year. I spent an entire summer in court with these
4 people. I've already seen probably every single document that
5 has been here, and I don't remember when, because we've been in
6 court every, all, so many times.
7 Q Was that in, was that this year?
8 A Well, no. It says two years ago to on there.
9 Q Oh, okay.
10 A It is just still the fact is that it needs to be
11 stopped. And he keeps trying to justify that he was talking,
12 he's going on a different website to find out about me.
13 That's, I don't think anyone else doesn't think that's creepy.
14 MR. OSTRONIC: Your Honor, could I just have one more
15 question, please?
16 THE COURT: Okay.
17 RECROSS EXAMINATION
18 BY MR. OSTRONIC:
19 Q Ms. Kimberlin, have you, when was the last time you
20 were in court and you saw Mr. Hoge, whereby Mr. Hoge is the one
21 that initiated the court proceedings?
22 THE COURT: Oh, come on.
23 MR. OSTRONIC: I'm just saying, Your Honor, she
24 keeps, she's trying to tell --
25 THE COURT: Do you know the answer to that question?

70
1 THE WITNESS: I don't know the answer to that.
2 MR. OSTRONIC: The only reason I'm bringing it up,
3 Your Honor, is that she says that it's all these court cases,
4 but the court cases are initiated by their family, Mr.
5 Kimberlin. It's not, that's all my point is, Your Honor, that
6 it's not --
7 THE COURT: Right. Well, that's no surprise.
8 THE WITNESS: We wouldn't have to be there if --
9 MR. OSTRONIC: I'm just, I know, but that goes to why
10 he's there, but if you're, if he's suing Mr. Hoge, then there's
11 a reason Mr. Hoge is there. It's not because he's just --
12 THE WITNESS: Because this needs to be stopped. We
13 wouldn't be here if it wasn't for Mr. Hoge going constantly and
14 Tweeting, and harassing, and bullying, for no reason. That's
15 the exact same thing. That's the thing. What have I done to
16 Hoge in the fact that he needs to go and attack my article?
17 MR. OSTRONIC: Your Honor, please.
18 THE WITNESS: What have I done? That's my question.
19 FURTHER REDIRECT EXAMINATION
20 BY THE COURT:
21 Q When did Mr. Hoge go to your house?
22 A I don't know.
23 Q Was it this year? Approximately when?
24 A I know that a long time ago -- I don't know about
25 that instant -- but I know a long time ago, that we had

71
1 somebody waiting outside our house in this car once, and that I
2 remember that a long time ago, we had to go to court because
3 there were e-mails being exchanged by a bunch of people because
4 this person said they were going to come down and kill my dad
5 with a gun and my family.
6 MR. HOGE: (Unintelligible) the case.
7 THE WITNESS: And --
8 MR. OSTRONIC: Your Honor, there's no testimony
9 there, and Mr. Hoge never showed up then. I don't -- and I
10 will say, I'll proffer that he never (unintelligible) the
11 house.
12 THE WITNESS: So I don't know --
13 THE COURT: All right. Well, there's testimony to
14 that effect now.
15 THE WITNESS: -- if it was personally him, but I know
16 that there are people who talk --
18 THE WITNESS: -- to him and talk about my dad online.
19 And there have been people who, that have showed up to my
20 house, because our address has been (unintelligible). And
21 that's, that's --
22 BY THE COURT:
23 Q All right. Now, you testified that you blocked him
24 from your Twitter account, right?
25 A From -- to be honest, I am pretty sure -- from, from

72
1 now on, I think I have gotten my facts mixed up, because if, I
2 should have had the thing, and I think I got Walker and Hoge
3 mixed up -- but I'm pretty sure, in the past, I have gotten a
4 thing on Facebook, because if I -- oh, my God --
5 Q A thing?
6 A I wish I still had --
7 Q A request to friend?
8 A -- this evidence.
9 Q Or what kind of thing? You have to be really
10 specific with me because I don't know much about Facebook.
11 A I think a lot -- this is, this is like probably
12 fourth grade -- I don't, when I had a Facebook for the very
13 first time -- I remember receiving a message, and I -- I really
14 think it was from him, but I'm not sure -- and I'm so sorry, so
15 I don't know.
16 Q Okay. Did you get anything this year?
17 A Not this year. I have blocked every single thing on
18 Facebook that I could, and then I've blocked my social medias.
19 But I remember in fourth grade, I did get a message on
20 Facebook, saying, "Hey, you know your dad's a terrorist, he
21 bombed up a bunch of places, you should be careful, young one,"
22 or something like that. And I was only in fourth grade. You
23 don't know about it.
24 Q What grade are you in now?
25 A I'm in tenth. I'm going to (unintelligible)

73
1 sophomore.
2 Q Right. Other than him requesting to follow you on
3 Twitter this year, which you blocked --
4 MR. OSTRONIC: Well, Your Honor, I think she just
5 corrected that, didn't she?
6 THE COURT: No.
7 THE WITNESS: Yeah.
8 THE COURT: She's talking about Facebook.
9 THE WITNESS: I was --
10 BY THE COURT:
11 Q Any other things that happened with Mr. Hoge?
12 A He has not directly talked to me, but it's just the
13 matter of fact that he has talked about me online, that he has
14 attacked my articles, and he has, because of him, I have been
15 pulled out of three schools, and --
16 Q Did he attack your, an article of yours this year?
17 A It was an article written in the Gazette about me
18 because of my need to --
19 Q All right. Let me see that.
20 MR. KIMBERLIN: That's the article.
21 THE WITNESS: Do you have the comments? These are
22 not comments.
23 MR. KIMBERLIN: No, I don't have the comments.
24 THE WITNESS: How do you not have the comments?
25 MR. KIMBERLIN: No, I don't have the comments.

74
1 THE WITNESS: How do you not have the comments?
2 MR. KIMBERLIN: But -- show that.
3 THE WITNESS: All right. So --
4 BY THE COURT:
5 Q Come on back up here.
6 A -- I don't have the, I have the Gazette article --
7 Q Okay.
8 A -- but I don't have the comments. And we do have,
9 apparently, the, where he's, he's been suspended because he
10 found, violated the Twitter rules of --
12 BY THE COURT:
13 Q All right. Let me see that.
14 A -- target, targeted abuse. This stated.
15 Q All right. Let's have this marked as a group,
16 Plaintiff's Exhibit, or Appellant's Exhibit 4 -- Plaintiff's,
17 Appellant, slash, Plaintiff's Exhibit 4.
21 identification.)
22 MR. OSTRONIC: Your Honor, I have no problem with
23 that coming in. The other article has nothing to do with this
24 case at all, the other thing about Twitter, nothing to do with
25 this case at all. There's nothing at all regarding the --

75
1 THE COURT: I haven't looked at it yet, so I'll --
2 MR. OSTRONIC: Okay. Well, I'm just saying I --
3 THE COURT: Okay.
4 MR. OSTRONIC: It's two different things. There's an
5 article involved says some things about Twitter, none of which
6 are related to each other. I have no problems with the
7 article, but the --
8 THE WITNESS: Never said they were.
9 MR. OSTRONIC: -- Twitter thing has nothing to do
10 with this case at all.
11 THE WITNESS: I said that it was the article, no
12 comments, and then I said that there was a Twitter thing
13 saying --
14 BY THE COURT:
15 Q Okay. Wait a, hang on one second. All right. Tell
16 me what -- I'm handing you Plaintiff's Exhibit 4 -- tell me
17 what those documents are, if you -- well, first of all, do you
18 recognize those documents?
19 A I recognize my article, but this was just a thing to
20 just show what I mean by the way he's been talking on Twitter,
21 that he, I was just trying to show that it does prove that he
22 does have like abusive language and the way he talks about
23 people is, like Twitter is not going to suspend you if you're
24 not, if you're actually not causing harm.
25 And then this is just the article of, about me, about
76
1 like (unintelligible) and writing about this girl, because it's
2 like a song about two girls that got killed.
3 Q Okay. I'll take a look at that. And the article is
4 about something that you wrote?
5 A Yeah. It was a, I had a YouTube video on YouTube,
6 and it got, it was about two girls that, the girls who got
7 killed with the coal from the train in Ellicott City, and the,
8 the Gazette wrote an article on it. And then it got attacked
9 on the comments, but he forgot the comments. I don't know how
10 you did that.
11 Q Are the comments in your phone?
12 A I would have to look up the article. I don't even
13 know if it's still up. Can I, am I allowed to ask my --
14 Q Pardon me?
15 A Did the article get taken down?
16 Q No, I can't have you ask your dad any questions. He
17 can't help you with your testimony.
18 A Can I just --
19 Q You can just take a minute to see if it's in there
20 and then let me know.
21 A Here it is. All the comments have been deleted. It
22 says number of comments is zero.
23 Q Did you read the comments that were on there?
24 A I've seen them and we've had a piece of paper, I read
25 them so long ago, so I would not know them heart by heart. And
77
1 why are all the comments gone? Oh, my gosh.
2 Q Do you remember who the comments were from or what
3 they said?
4 A All, all, the gist of it, like I said, and all it,
5 all it really mentioned was just, it was just a bunch of
6 blabble, and then basically, child of a, of a bomber, child of
7 a terrorist. Why would you write an article about this girl if
8 she's the child of Brett Kimberlin? Do you know who she is?
9 That's the kind of comments that were on there, and that
10 was -- and I wish I had the comments.
11 MR. OSTRONIC: Objection, Your Honor. It's not Mr.
12 Hoge that made the comments, so the --
13 THE WITNESS: But that -- I wish I cannot
14 (unintelligible) --
15 BY THE COURT:
16 Q Are you saying that Mr. Hoge made the comments?
17 A I need my dad to (unintelligible) --
18 Q Well, he can't testify, so you're going to -- you're
19 doing fine.
20 A I don't know how to, I don't know how to tell you,
21 how to like prove it because there was a way to prove it, but
22 like I can't prove because they found out through my dad, and
23 my dad found out there's, there's a way to find it, and I don't
24 know how he did it. So I can't say it.
25 Q Okay.
78
1 A So I thought my dad could testify for half of these
2 things in court. And I'm trying the best I can.
3 Q Okay.
4 THE COURT: All right. Do you have any more
5 questions?
7 THE COURT: All right. You may step down. Feel free
8 to grab one of those tissues. I know it's hard. There's some
9 right there. You can grab some of those over there. No?
10 Okay.
12 THE COURT: Okay. And that's -- I don't know. Are
13 there any more witnesses on behalf of Kelsey Kimberlin, other
14 than that I know her father wants to, but is not being
15 permitted to testify? Anyone else?
16 Okay. And the appellant's going to rest.
17 MR. OSTRONIC: Your Honor, I would just say that
18 you've heard nothing today that indicates any course of conduct
19 or any incidents that happened within the 30 days beforehand
20 that would support a peace order.
21 It's the same thing the District Court found that I,
22 we've heard no, we've heard absolutely nothing that would
23 indicate an ongoing set of harassment directly against Ms.
24 Kimberlin, by Mr. Hoge or, in fact, anybody, quite frankly. So
25 there would be nothing to support a peace order in this

79
1 instance. I would just --
2 THE COURT: I'm going to deny your motion.
4 THE COURT: You putting on a case?
5 MR. OSTRONIC: I have no choice now.
6 THE COURT: Okay.
7 MR. OSTRONIC: Mr. Hoge, go up there.
8 THE COURT: Thank you. You may be seated.
9 Counsel may inquire. Wait, hang on. Go ahead.
10 WILLIAM HOGE III
11 the appellee/defendant, having been first duly sworn, was
12 examined and testified as follows:
14 BY MR. OSTRONIC:
15 Q Mr. Hoge, you've heard the testimony today from Ms.
16 Kimberlin and Ms. Kimberlin. Right now, there's a peace order
17 against you, a peace order request against you for harassment
18 of Ms. Kelsey Kimberlin. How many times within the last year
19 would you say you've communicated with Ms. Kimberlin directly?
20 A Never.
21 Q Okay. How many times have you tried to Tweet her in
22 the last year?
23 A Never.
24 Q How many times have you written about her on a
25 Facebook or tried to contact her in Facebook?

80
1 A Never.
2 Q How many times have you gone to her house?
3 A Never.
4 Q Ever gone to her schools?
5 A Never.
6 Q Never. Ever seen her outside a courthouse setting?
7 A The sidewalk in front of the courthouse, and that
8 would be it.
9 Q That's as close as you come. Very good. We have the
10 one message, we have the one little mention about her birth
11 month in that, embedded in one little, in one web posting.
12 Outside of that, when was the last time you had any kind of
13 mention of Ms. Kimberlin online or anyplace?
14 A Beforehand? Never mentioned her directly.
15 Q Okay. Never, ever?
16 A I mentioned the fact that her, for example, that she,
17 that her, she might have been present during a hearing where
18 she testified, or something like that, but never mentioned her
19 by name.
20 Q Okay. In addition to this, and this is brought on
21 behalf of her father, in addition to this, how many other court
22 cases are you involved with right now with Mr. Kimberlin?
23 A Let me sort of start at the beginning and go
24 through --
25 THE COURT: No. Just answer the question.

81
1 THE WITNESS: Well, there are four that I'm aware of.
2 BY MR. OSTRONIC:
3 Q All right. And --
4 A Yes, four.
5 Q Four ongoing?
6 A Yes.
7 Q Okay. And these were all initiated by Mr. Kimberlin
8 against you and others, is that correct?
9 A Yes.
10 Q Okay. And this is in federal and state court, is
11 that correct?
12 A Yes.
13 Q Okay. In your personal opinion, do you believe this
14 was initiated --
15 THE COURT: Counsel --
17 THE COURT: No --
19 THE COURT: His personal opinion is not relevant.
20 MR. OSTRONIC: All right.
21 BY MR. OSTRONIC:
22 Q Is there anything else you'd like to add about what's
23 going on here today?
24 THE COURT: Counsel --
25 MR. OSTRONIC: I'm sorry, Your Honor. I'm just

82
1 trying to --
2 THE COURT: Let's stick to the issues.
3 MR. OSTRONIC: I mean, he's -- okay. I have nothing
4 else. Nothing else of this witness then.
5 THE COURT: All right. Let me see if I have any
6 questions.
7 MR. OSTRONIC: Your Honor, if I may, one more thing.
8 THE COURT: Okay.
9 MR. OSTRONIC: Could I have, can I have some of those
10 exhibits, one of those exhibits?
11 THE COURT: I have, I think I have everything. 1,
12 2 --
13 THE CLERK: Got --
14 THE COURT: Oh, okay. 3 and 4. Okay.
15 BY MR. OSTRONIC:
16 Q I want to show what's been marked as Plaintiff's
17 Exhibit 3, which appellant proffered as coming from you. Can
18 you authenticate that? Do you --
19 A No, I cannot.
20 Q And why is that?
21 A Well, because I, these are not my Tweets. For
22 example, the first one was originated by Lee Stranahan. The
23 second one, I believe, may have been by Patrick Frey. I'd have
24 to look.
25 THE COURT: Counsel, if you don't mind, just leaving

83
1 the exhibits up here with the clerk so we don't lose track of
2 them.
3 MR. OSTRONIC: Oh, I'm sorry. I'm sorry, Your Honor.
4 My fault.
5 THE COURT: Just right there on the ledge is good.
6 Thanks.
7 MR. OSTRONIC: Your Honor, I'm going to introduce --
8 THE COURT: Okay. Let's have it marked, whatever you
9 have there.
10 MR. OSTRONIC: Have it marked.
12 marked as Appellee/Defendant's
14 identification.)
15 THE COURT: Go ahead and lay a foundation.
16 MR. OSTRONIC: I'm sorry. I'm sorry.
17 THE COURT: I don't know what it is. There's no one
18 here to object --
20 THE COURT: No. Through your witness.
21 MR. OSTRONIC: I am, I'm going to, Your Honor, I'm
22 going to do it --
23 BY MR. OSTRONIC:
24 Q Mr. Hoge, I'm going to show you a photo shop from
25 (unintelligible) --
84
1 A No, no. This is, this is a screen, this is a screen
2 cap of --
3 THE COURT: No. Ask him what it is. Not you.
4 MR. OSTRONIC: I'm sorry. That's what I was asking.
5 BY MR. OSTRONIC:
6 Q What is it?
7 A It's a, it's a screen capture of a Tweet done by Lee
8 Stranahan, which I re-Tweeted to let more people know what he
9 had said, and then Mr. --
10 Q (Unintelligible) --
11 A No. During the, the --
12 THE COURT: Counsel.
13 MR. OSTRONIC: Oh, I'm sorry.
14 THE WITNESS: During the, during the trial at the
15 District level, Mr. Kimberlin offered this in evidence as
16 something that I had Tweeted, and in fact, it isn't. It's
17 something that Lee Stranahan Tweeted. And you can compare the
18 two and look.
19 MR. OSTRONIC: Okay, Your Honor.
20 THE COURT: All right. I'll receive it.
21 (The document marked for
22 identification as
23 Appellee/Defendant's Exhibit No.
24 1 was received in evidence.)
25 THE COURT: Okay. Anything else?

85
2 CROSS-EXAMINATION
3 BY THE COURT:
4 Q All right. Couple questions for you --
5 A Yes, Your Honor.
6 Q -- Mr. Hoge. All right. Just showing you here
7 what's been marked as Plaintiff's 3 --
8 A Yes.
9 Q -- the top.
10 A Yes.
11 Q So that's your re-Tweet to somebody else?
12 A Yes. In other words, Lee Stranahan Tweeted that, and
13 I thought it was something that other people ought to see, so I
14 re-Tweeted it. And --
15 Q And what about the one under it?
16 A That's a, these are, that's another re-Tweet by
17 someone, by, who blogs under the handle Patterico, whose name
18 is Patrick Frey.
19 Q Why is it under your name?
20 A There is a service on the Internet called Toxie that
21 allows people to look and see anything that's been connected
22 between any Tweeter account, Twitter account, and so if you had
23 searched that Tweet, and say, did WJJHoge have anything to do
24 with this, it would return that.
25 As a matter of fact, I have, I, when, after this came

86
1 up, I, I did a blog demonstrating how, post demonstrating how
2 this was developed. And there's a, there's a copy of the blog
3 post over there if you'd like to see it, Your Honor.
4 Q And then underneath this, who's RT@HOLS, number 1,
5 that says, "Oh, Hoge, why'd you have to --
6 A I believe that that --
7 Q -- go and mention BK's --
8 A I believe that is Mr. --
9 Q -- daughter for?"
10 A I believe that is Mr. Kimberlin.
11 Q That his name for.
12 A I believe that's --
13 Q So you don't --
14 A I believe that's --
15 Q -- know who it is?
16 A On information and belief, it's Mr. Kimberlin.
17 Q But you don't know?
18 A I can't prove it.
19 Q Yes. How long has this Internet war been going on
20 with Mr. Kimberlin?
21 A I began --
22 Q Since Mr. Kimberlin was 18?
23 A No. I, one of the subjects of my blog is First
24 Amendment issues, and in 2012, he was involved in getting an
25 unconstitutional gag order against another blogger, and I've

87
1 been following the case since then.
2 Q Okay.
3 THE COURT: Any other questions in light of the
4 Court's questions?
5 MR. OSTRONIC: And just to follow up on that one.
7 BY MR. OSTRONIC:
8 Q That was, did you ever comment on the Gazette
9 article?
10 A Which article are you --
11 Q The article that was in the Gazette that Ms.
12 Kimberlin brought in earlier?
13 THE COURT: Where are the other exhibits?
14 THE WITNESS: Oh.
15 MR. OSTRONIC: They're right there, Your Honor, right
16 there.
17 BY MR. OSTRONIC:
18 Q Did you ever comment on that, on that Gazette --
19 A No, I didn't. The, the, it, the person who
20 commented was Lee Stranahan.
21 Q Lee Stranahan. But you, yourself, never went on the
22 site and commented that.
23 A I never commented on that article.
24 MR. OSTRONIC: So that's all, I just wanted to
25 establish that.
88
1 THE COURT: All right. Thank you, sir. You may step
2 down.
3 THE WITNESS: Thank you, Your Honor.
5 THE COURT: I mean --
6 MR. OSTRONIC: That's all we have, Your Honor.
7 THE COURT: Okay. I'm going to deliberate in
8 chambers on this. Is there anything you want to say in
9 closing?
10 You can have a seat there, sir.
11 MR. OSTRONIC: I'll just reiterate, Your Honor, I
12 think, as you personally have seen in the past year, and as
13 I've alluded to here, this is, is not, this does not involve
14 Kelsey. This is obviously a battle at a higher level in
15 court --
16 THE COURT: You mean when I previously presided over
17 the case?
18 MR. OSTRONIC: Yes, Your Honor. No, I, no, but my
19 point --
20 THE COURT: I'm sorry. I don't remember.
21 MR. OSTRONIC: -- my point is, you're, we're all
22 aware that this is not necessarily Mr. Hoge versus Ms.
23 Kimberlin; this is obviously the higher level where the, Mr.
24 Kimberlin and Mr. Hoge and a host of others have differences
25 that they're battling out in the courtroom.

89
1 And a peace order would be very inappropriate in this
2 matter right now, and for the reasons we stated before, Your
3 Honor. There's no course of conduct, there's no ongoing
4 conduct, and there's only, and that one instance, Ms. Kimberlin
5 never would have found out about that had her father not showed
6 it to her.
7 So on those, Your Honor, I'm just saying, there's,
8 but it's not directed at --
9 THE COURT: Or her friends' parents, or you know, I'm
10 going to deliberate over this, but I'll tell you, before I
11 render my decision, that I'm just so sad that innocent children
12 are being dragged into this. It just breaks my heart.
13 MR. OSTRONIC: Your Honor, I'm not, I'm --
14 THE COURT: And at some point, people that are
15 responsible for this mean, vicious blogging may find themselves
16 in Criminal Court and subsequently behind bars.
17 MR. OSTRONIC: I --
18 THE COURT: This is completely --
19 MR. HOGE: Absolutely.
20 THE COURT: -- unacceptable --
21 MR. OSTRONIC: I agree, Your Honor.
22 THE COURT: -- child abuse --
23 MR. OSTRONIC: I --
24 MR. HOGE: Absolutely.
25 THE COURT: -- of sorts.

90
1 MR. OSTRONIC: Not, the --
2 THE COURT: And we all know that mean blogging and
3 bullying can result in terrible, terrible consequences for
4 children when they are subjected to this type of bullying,
5 which is brutal --
6 MR. OSTRONIC: I'm not --
7 THE COURT: -- when it's conveyed among their
8 friends, and it's really something that no child should have to
9 tolerate. So that being said --
10 MR. OSTRONIC: I'm not arguing, Your Honor.
11 THE COURT: -- I'm going to deliberate over the
12 evidence.
13 MR. OSTRONIC: Thank you, Your Honor.
16 (Recess)
17 THE COURT: Thank you. Please be seated.
18 THE CLERK: Recalling DCA No. 9148D, Brett Kimberlin
20 THE COURT: Okay. All right. Before I can actually
21 issue any kind of order either way, we have to get certain
22 technology set up in my courtroom, which we don't have yet.
23 But I wanted to actually get a little more clarification on
24 some of the testimony anyway, so I figured we can do that while
25 we're waiting to get set up.

91
2 THE COURT: Okay. And I'm really sorry, Kelsey, but
3 I'm going to need you up here one more time. And you are still
4 under oath, so please come over to the chair. Okay.
5 KELSEY KIMBERLIN
8 follows:
9 FURTHER DIRECT EXAMINATION
10 BY THE COURT:
11 Q I need some clarification on your testimony about, at
12 one point, I thought you said that Mr. Hoge requested to follow
13 you on Twitter and you blocked him.
14 A Oh --
15 Q So I need clarification that?
16 A I brought it up. I don't know if, I think, I think I
17 just got, when I said, like got mixed up because after that, I
18 was like, I think I got it wrong, and I think it was Walker,
19 and I think that I got the situation --
20 Q So you think it was Walker that did that, and not Mr.
21 Hoge?
22 A Yeah, I think I got it mixed up because there has
23 been incidents, but I can't prove incidents, so I got it mixed
24 up.
25 Q Okay. All right. So you don't think that was Mr.

92
1 Hoge, is that right?
2 A No. So --
3 Q Okay.
4 A But I said that earlier, but I don't think it was
5 clear.
6 Q Yes. I was not clear. That's why --
7 A Yeah.
8 Q -- you said something like that, and I just wanted to
9 make sure I was understanding what you were trying to clarify.
10 A Yeah.
12 THE COURT: Any questions in light of the Court's
13 questions?
15 THE COURT: Thank you very much.
16 THE WITNESS: Thank you. Sorry.
17 THE COURT: You can have a seat. That's okay.
19 THE COURT: All right. Now, we're still waiting,
20 we're still waiting to get the actual paperwork that will
21 reflect my decision, but I am ready to give a decision. So
22 I'll orally give the decision, and then we'll recess if you
23 folks want to take lunch and then come back.
24 JUDGE'S RULING
25 In order to make a finding for a peace order for

93
1 harassment, the Court needs to, first, find harassment. And
2 under the criminal statute, in order for the Court to make a
3 finding of harassment, there has to be a continuing course of
4 conduct. So there would have to be more than one instance.
5 So in the case before me, I've got some reservations
6 about the proof, and I am not convinced that there is
7 sufficient proof. There has to be clear and convincing
8 evidence that within the 30-day period before the application
9 of the peace order is taken out, that there was harassment, so
10 there would have to be more than one act, there would have to
11 be multiple acts.
12 So the time period before the Court for the Court to
13 consider would be, the date of the application, the date of the
14 petition itself is March 6, 2015, so I would have to look at
15 the proof that's specifically refers to the 30-day period, so
16 that would be March -- I mean, sorry -- February 6, 2015
17 through March 6, 2015. So during that 30-day window, I'd have
18 to find that harassment occurred by Mr. Hoge.
19 So in order for me to make that finding, there would
20 have to be more than one instance that, in the Court's view,
21 would be considered harassment against Kelsey Kimberlin.
22 So Kelsey's just clarified -- and I appreciate that
23 she is trying to be as truthful as she can, which is very
24 important -- she's just clarified that she was trying to
25 explain to me earlier that she made a mistake with respect to

94
1 the request to follow on Twitter. So that was not, when she
2 thought about it some more, it was not Mr. Hoge.
3 So the rest of the evidence that I have in front of
4 me to consider with respect to the 30 days, a lot of the
5 exhibits here are outside of the 30 days, and so they're not
6 properly anything that I can consider for the peace order.
7 Like for example, these responses or re-Tweeting back
8 by Mr. Hoge -- I'm referring to Plaintiff's Exhibit 3 -- they
9 say two years ago on them, so I can't consider them. Two years
10 ago.
11 And then I have, the only other thing that falls
12 within the timeframe is Plaintiff's Exhibit 2. There's Mr.
13 Hoge's picture and his name, and she will turn 16 in April, and
14 that's in response to a discussion about the ages of Mr.
15 Kimberlin's children. There's a previous comment by Gus
16 Bailey, saying, "On our information and belief, the elder
17 daughter's approximately 14 years old," so it seems as though
18 Mr. Hoge then chimes in to correct that by saying she will turn
19 16.
20 And that's in response to this post, and I'll read,
21 "In those rare moments when I get upset about life times, when
22 I get cranky because I haven't had a tasty brain, I have this
23 one lovely thought that always seems to calm me down.
24 Somewhere in a park eating ice cream, or at the mall food court
25 munching a soft pretzel, or eight rows up in the bleachers at a

95
1 middle school basketball game, there's a skeezy 35-year-old
2 dude in a ratty, Motley Crew tee shirt giving Brett Kimberlin's
3 daughter the same kind of hungry eyes that he used to give
4 Sandy Bart's daughter, and Brett Kimberlin knows it."
5 So what it appears to me is that this is an attempted
6 character assassination, if you will, of Kelsey's father, Brett
7 Kimberlin, but really, by virtue of the fact that she is his
8 daughter, and that this is on the Internet, reference to her by
9 name, or focusing in on which one she is by age, necessarily
10 brings, as I said before, innocent children into this really
11 ugly fight.
12 Notwithstanding that, whether or not chiming into
13 this ugly discussion by Mr. Hoge, saying she'll turn 16 in
14 April, whether or not clarifying her age, is clear and
15 convincing evidence of harassment of Kelsey, in and of itself,
16 I think, is insufficient evidence.
17 And there's nothing else within the timeframe that we
18 have here that would show a continuing course of conduct in the
19 30 days before the date the petition is applied for, which is
20 what I have to find, statutorily, to issue the peace order. So
21 I'm going to deny the peace order because there's insufficient
22 evidence. The law does require clear and convincing evidence.
23 So I stand behind my remarks that I made earlier
24 about how it's breaking my heart that these innocent children
25 are being victimized by rants and hate mail over the Internet
96
1 that have to do with their father, that have to do with things
2 that happened a long time for, time ago; things that he was
3 sentenced, and he served his sentence out as far as I know.
4 It's really inexcusable to bring children into this,
5 whoever's doing it. And as I said, at some point in time, if
6 there's sufficient evidence, and if it rises to the level of
7 criminal conduct, and that can be proven in a court of law by
8 the prosecutor's office, and whoever's doing this will be in a
9 lot of trouble, and possibly behind bars.
10 But as far as this case is concerned, as far as the
11 petition for a peace order against Mr. Hoge, there's
12 insufficient evidence before the Court, and I'm going to deny
13 the petition.
14 So I think you're a brave little girl, Kelsey, and I
15 think you did a fantastic job, but the Court has to follow
16 standards of proof. So I hope you explain my explanation, and
17 I don't know what to tell you to do with respect to these
18 blogs. It is just so hateful and so ugly, and I am so sorry
19 that you're suffering the way you are. I appreciate the amount
20 of suffering that you are going through. Very sorry.
21 Okay. So you're welcome to stick around for the
22 paperwork, which I'll issue later.
23 We're ready. Sorry. We're ready. Okay. We've got
24 it working.
25 That's it? Can you just put "Esquire" after

97
1 "Ostronic"? Does it allow you to do that?
2 THE CLERK: Should be able to do that.
3 THE COURT: E-S-Q? Won't let you do it?
4 THE CLERK: No.
5 THE COURT: Okay.
6 THE CLERK: He's listed as the attorney for the
7 defendant in the system --
8 THE COURT: No, I know.
9 THE CLERK: -- as E-S-Q.
10 THE COURT: I know. Do you always put the name of
11 the attorney on these?
12 THE CLERK: It's a different, well, that's
13 (unintelligible) here. Yes, it would be in the system. You
14 have to check all of those.
15 THE COURT: Okay. In District Court, they don't do
16 that, that I remember.
17 THE CLERK: Oh, yeah, we (unintelligible).
18 THE COURT: Okay. All right. And do we retain the
19 exhibits? Yes. Okay.
20 THE CLERK: I'll file them.
21 THE COURT: All right. Why don't we do this. I'd
22 like to suggest staggered exits from the courtroom.
23 MR. OSTRONIC: They can leave first, Your Honor.
24 THE COURT: Okay.
25 MR. OSTRONIC: I agree. I agree.

98
1 THE COURT: Okay. And so what we'll do is, I guess,
2 15, we'll give it at least 15 minutes before the --
3 We're just going to do this, just to make sure --
4 MR. OSTRONIC: I have no --
5 THE COURT: I mean, I know people are, have some
6 emotions over this case, so for everyone's safety, we're going
7 to do staggered exits. And we'll have the Kimberlin family --
8 They, did they get their copies? Okay. All right.
9 You're excused at this time. And we're going to, the
10 appellees --
11 MS. TETYANA KIMBERLIN: Thank you.
12 THE COURT: -- have agreed to wait. You're welcome.
13 MR. KIMBERLIN: I'm going to guess you've got to file
14 criminal charges now.
16 THE COURT: All right. So the time's about,
17 according to this clock, two minutes after 1:00, so if you
18 don't mind waiting --
19 MR. OSTRONIC: 20 after?
20 THE COURT: -- until like 20 after --
21 MR. OSTRONIC: Yes, ma'am.
22 THE COURT: -- I'd really appreciate it. I just want
23 to avoid any --
24 MR. OSTRONIC: No problem, Your Honor.
25 MR. HOGE: Your Honor, I'd like to ask your

99
1 permission to quote what you said about the children being
2 involved, because there are people --
3 THE COURT: Okay. Let me just stop you. Anything
4 that I've said in this courtroom is a matter of public record.
5 MR. HOGE: Sure.
6 THE COURT: But I don't want to have any ex parte
7 communication, okay --
8 MR. HOGE: Okay.
9 THE COURT: -- without the Kimberlins here.
10 MR. OSTRONIC: I agree.
11 MR. HOGE: Okay.
13 THE COURT: All right. Thank you.
15 THE COURT: Have a good day.
16 (The proceedings were concluded.)
17
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100
√ Digitally signed by Kimberly L. Chwirut
DIGITALLY SIGNED CERTIFICATE
DEPOSITION SERVICES, INC. hereby certifies that the
attached pages represent an accurate transcript of the
electronic sound recording of the proceedings in the Circuit
Court for Montgomery County in the matter of:
Case No. 9148D
BRETT KIMBERLIN
v.
WILLIAM HOGE III
By:
_________________________
KIMBERLY L. CHWIRUT
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IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

Rockville, Maryland May 14, 2015

DEPOSITION SERVICES, INC.

May 14, 2015

WHEREUPON, the proceedings in the above-entitled

BEFORE: THE HONORABLE AUDREY A. CREIGHTON, JUDGE

FOR THE APPELLANT/PLAINTIFF:

BRETT KIMBERLIN, Pro se

FOR THE APPELLEE/DEFENDANT:

F. PATRICK OSTRONIC, Esq.

WITNESSES DIRECT CROSS REDIRECT RECROSS

For the Appellant/Plaintiff:

Kelsey Kimberlin 45 59 68/70/91 69

For the Appellee/Defendant:

William Hoge III 79 85 87 --

EXHIBITS MARKED RECEIVED

For the Appellant/Plaintiff:

For the Appellee/Defendant:

F. Patrick Ostronic, Esq. 88

2 THE BAILIFF: -- now in session, the Honorable Audrey

4 THE COURT: Good morning.

5 MR. KIMBERLIN: Morning.

6 MR. OSTRONIC: Good morning, Your Honor.

7 THE COURT: Please be seated.

8 THE CLERK: Calling DCA No. 9148D, Brett Kimberlin

9 versus William Hoge III.

10 THE COURT: Will the parties please identify

12 MR. KIMBERLIN: Brett Kimberlin.

13 THE COURT: All right. Good morning, Mr. Kimberlin.

14 MR. KIMBERLIN: Yes.

15 MR. OSTRONIC: Morning, Your Honor. Patrick Ostronic

16 on behalf of Mr. Hoge. And may I make a correction? I believe

17 it's Brett Kimberlin on behalf of his daughter, the case is,

18 not Brett Kimberlin himself.

19 THE COURT: Okay. And your client is?

20 MR. OSTRONIC: Mr. John Hoge.

21 THE COURT: And he's present?

22 MR. OSTRONIC: Yes, Your Honor.

23 THE COURT: Okay. All right. The case before me is

24 an appeal from the District Court denial of Mr. Kimberlin's

25 application for a final peace order on behalf of his daughter,

1 Kelsey Kimberlin, temporary peace order having been issued, it

2 looks like it was Judge Simmons on March 6, 2015. Then the

4 MR. OSTRONIC: Yes, Your Honor.

5 THE COURT: Okay. This is an appeal de novo, and

6 I'll hear from Mr. Kimberlin to --

7 MR. OSTRONIC: Your Honor, can we have --

8 THE COURT: Yes.

9 MR. OSTRONIC: -- some preliminaries first?

10 THE COURT: Oh, okay.

11 MR. OSTRONIC: Thank you, Your Honor. Two matters.

12 First, Mr. Kimberlin is not an attorney, and I'm wondering

13 propriety of him representing his daughter even though he's not

15 THE COURT: He can't represent his daughter, but my

16 understanding is that she is a minor --

17 MR. OSTRONIC: Right.

18 THE COURT: -- 15 years old, so she can't bring this

20 MR. OSTRONIC: Right. So he can bring it on behalf

21 of her, but he should also arrange for his own, for

22 representation for her. He can't act as the attorney on this

23 matter, can he?

24 THE COURT: Not as the attorney, no.

25 MR. OSTRONIC: Well, that's what he's going to be