Michaelson v. Garr , 234 Ariz. 542 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JULIE MICHAELSON, Plaintiff/Appellee,
v.
WILLIAM GARR, Defendant/Appellant.
No. 1 CA-CV 13-0302
FILED 5-6-2014
Appeal from the Superior Court in Maricopa County
No. FN2012-003403
The Honorable Lisa M. Roberts, Judge Pro Tempore
AFFIRMED
COUNSEL
William Garr, Scottsdale
Defendant/Appellant in Propria Persona
OPINION
Judge Maurice Portley delivered the Opinion of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
MICHAELSON v. GARR
Opinion of the Court
P O R T L E Y, Judge:
¶1 William Garr appeals the order of protection issued and
affirmed by the superior court in favor of his ex-fiancée, Julie Michaelson.
For the following reasons, we affirm.
FACTS 1 AND PROCEDURAL HISTORY
¶2 Michaelson ended her engagement to Garr in late September
2012. She sought and was granted an ex parte order of protection on
October 16, 2012. The order of protection prohibited Garr from having
any contact with Michaelson; from committing crimes against her; and
from possessing, receiving, or purchasing any firearms or ammunition.
The order was served on Garr the following day.
¶3 Five months later, Garr requested a hearing and one was
scheduled. Both parties testified at the hearing, and the superior court
continued the order of protection. Garr then filed this appeal. 2
DISCUSSION
¶4 Garr contends that the superior court erred by continuing
the order of protection. In particular, he argues that there was no specific
allegation of domestic abuse and the court did not state a basis for
continuing the order. He also claims that the portion of the order
preventing him from possessing or using weapons violates federal law. 3
1 On appeal, we view the facts “in the light most favorable to upholding
the trial court’s ruling.” Mahar v. Acuna, 230 Ariz. 530, 532, ¶ 2, 287 P.3d
824, 826 (App. 2012).
2 Although the order of protection against Garr expired on October 13,
2013, pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-3602(K)
(West 2014), we do not consider his appeal to be moot because “expired
orders of protection have ongoing collateral legal consequences.” See
Cardoso v. Soldo, 230 Ariz. 614, 617-18, ¶¶ 9-10, 227 P.3d 811, 814-15 (App.
2012) (explaining that the collateral consequences exception allows this
court to review an otherwise expired order of protection).
3 Michaelson did not file an answering brief. In the exercise of our
discretion, we decline to treat her failure to file an answering brief as a
confession of error. See Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d
425, 425 (App. 1982) (“Although we may regard [the] failure to respond as
a confession of reversible error, we are not required to do so.”).
2
MICHAELSON v. GARR
Opinion of the Court
¶5 We review the decision of the superior court to continue an
order of protection for an abuse of discretion. Cardoso, 230 Ariz. at 619,
¶ 16, 277 P.3d at 816. The court abuses its discretion when it makes an
error of law in reaching a discretionary conclusion or “when the record,
viewed in the light most favorable to upholding the trial court’s decision,
is devoid of competent evidence to support the decision.” Mahar, 230
Ariz. at 534, ¶ 14, 287 P.3d at 828 (citation omitted) (internal quotation
marks omitted). We review any questions of law de novo. In re Marriage
of Pownall, 197 Ariz. 577, 580, ¶ 7, 5 P.3d 911, 914 (App. 2000).
¶6 An order of protection shall be continued by the court if the
plaintiff demonstrates by a preponderance of the evidence that “there is
reasonable cause to believe . . . [that] [t]he defendant may commit an act of
domestic violence.” A.R.S. § 13-3602(E)(1); 4 Ariz. R. Prot. Order P. 8(F). In
the context of a past or current romantic relationship, the term “domestic
violence” is broadly defined in § 13-3601(A) and includes a wide array of
criminal acts as well as harassment by “verbal, electronic, mechanical,
telegraphic, telephonic or written” communication. A.R.S. §§ 13-3601(A),
(A)(6), -2921(A)(1).
¶7 At the hearing, Michaelson never claimed that Garr
committed any acts of physical domestic violence. Instead, she testified
that Garr was harassing her. Specifically, she testified that on September
26, 2012, Garr sent her between 60-110 unwanted text messages, and on
October 4, 2012, he called her employer, identified himself as an attorney
and gained access to her work schedule, and then sent her a text stating
that he “had all the information he needed” and knew when she was at
work or at home. Michaelson also testified that on October 15, 2012, after
she declined to accept the flowers he attempted to send to her at work,
Garr sent her a text indicating that their relationship was brought together
by God and only God could separate them. After considering the
testimony of both parties and the other evidence, the court stated that “the
Plaintiff has established by a preponderance of the evidence that an act of
domestic violence has occurred. The order of protection is affirmed.”
¶8 Garr, however, contends that the court considered improper
evidence to reach its decision. First, he claims that the court considered
text messages he sent to Michaelson’s eighteen-year-old daughter. The
record belies the argument because the court stated the evidence was “not
4 We cite to the current version of the applicable statute absent any
changes material to this Opinion.
3
MICHAELSON v. GARR
Opinion of the Court
relevant for purposes of today’s hearing. The only thing that’s relevant is
what Mr. Garr did to [Michaelson] directly that constitutes an act of
domestic violence.” As a result, we reject the argument. 5
¶9 Garr next challenges the admission of an illegible email he
sent to Michaelson that she submitted to show the court that he contacted
her after being served with the order of protection. At the hearing, Garr
stated that the email “was not accurate” and that he did not “agree to that
at all.” Although the contents of the email were illegible, the email clearly
displayed his name, email address, and the date on which it was sent. As
a result, his argument goes to the weight and not the admissibility of the
evidence. See, e.g., State v. Lacy, 187 Ariz. 340, 349, 929 P.2d 1288, 1297
(1996) (“Lack of positive identification goes to the weight of evidence, not
to its admissibility.”); State v. Hatton, 116 Ariz. 142, 149, 568 P.2d 1040,
1047 (1977) (noting that evidence that was “not a conclusive link in the
case goes only to the weight and not the admissibility”). Because the
superior court was the trier of fact and had to determine whether an act of
domestic violence occurred, the court properly considered the email as
proof that Garr violated the order of protection. See Ariz. R. Prot. Order
5(A).
¶10 Garr also argues that the superior court erred by (1)
admitting evidence of text messages that had not been printed out and (2)
excluding testimony about Garr’s engagement and upcoming marriage.
Because Garr did not object to the admission of the unprinted text
messages 6 or to the preclusion of his then-current romantic situation, 7 he
waived any error and we will not review those rulings for the first time on
appeal. See State v. Lopez, 217 Ariz. 433, 435, ¶¶ 5-6, 175 P.3d 682, 684
(App. 2008) (noting that defendant’s failure to object to the introduction of
testimony on the grounds of hearsay waived the issue on appeal).
5 Similarly, we reject Garr’s claim that the order of protection was not
filed under the name of the party requesting protection. Because
Michaelson named herself as the plaintiff on the petition, the argument is
specious.
6 Before Michaelson submitted the evidence to the court, Garr had an
opportunity to review the text messages on Michaelson’s cell phone and
made no objection.
7 The court properly found that Garr’s anticipated marriage was not
relevant to determine whether the order, which had been issued five
months earlier, should be continued. See Ariz. R. Prot. Order 5(A).
4
MICHAELSON v. GARR
Opinion of the Court
¶11 Finally, Garr argues that the superior court erred by
continuing the portion of the order preventing him from possessing or
purchasing firearms or ammunition for the duration of the order of
protection. 8 We disagree.
¶12 A court issuing an order of protection can “prohibit the
defendant from possessing or purchasing a firearm for the duration of the
order” after determining that “the defendant is a credible threat to the
physical safety of the plaintiff.” A.R.S. § 13-3602(G)(4). Here, the superior
court reviewed the text messages on Michaelson’s cell phone, along with
the testimony, and determined that Garr was a credible threat to
Michaelson’s physical safety.
¶13 The superior court scrolled through the multiple text
messages between Garr and Michaelson contained on Michaelson’s phone
and read one message into the record. 9 The remaining text messages
reviewed by the court were not read into the record or otherwise
preserved in any form in the record and so are unavailable for our review.
See State v. Villegas-Rojas, 231 Ariz. 445, 446 & n.1, ¶ 4, 296 P.3d 981, 982 &
n.1 (App. 2012) (noting that where an officer’s probable cause statement
was before the superior court but not in the record on appeal, it was
unavailable for appellate review). As a result, “[i]n the absence of the
record, an appellate court will presume that the evidence at a trial was
sufficient to sustain a finding, the verdict, or a charge to the jury.” Bryant
v. Thunderbird Acad., 103 Ariz. 247, 249, 439 P.2d 818, 820 (1968); accord
Duckstein v. Wolf, 230 Ariz. 227, 233, ¶ 15, 282 P.3d 428, 434 (App. 2012).
Moreover, because Garr is challenging the ruling, it was his responsibility
to preserve the record and ensure that it contained the materials relevant
to his appeal. See Villegas-Rojas, 231 Ariz. at 446 n.1, ¶ 4, 296 P.3d at 982
n.1 (“It is [Appellant’s] responsibility to ensure the record ‘contains the
material to which he takes exception.’” (quoting State v. Wilson, 179 Ariz.
17, 19 n.1, 875 P.2d 1322, 1324 n.1 (App. 1993))). Accordingly, because we
presume the evidence supports the judgment, the superior court did not
8 Garr now challenges the firearm prohibition solely on federal grounds.
Specifically, he contends that because he did not meet the definition of an
“intimate partner” pursuant to 18 U.S.C. § 922(g)(8), the firearm
prohibition could not apply to him as a matter of law. Because we can
resolve the issue under state law, we do not address his argument.
9 The message read aloud was, “Bill, you are too much. I CAN’T TAKE IT
ANYMORE. It is time to stop now.”
5
MICHAELSON v. GARR
Opinion of the Court
err by continuing the firearm prohibition against Garr for the remainder of
the order of protection.
CONCLUSION
¶14 Based on the foregoing, we affirm.
:MJT
6