Noel Sakuda Schlegel, V. Bryan Michael Psimas ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NOEL SAKURA SCHLEGEL, No. 82647-6-I
Respondent, DIVISION ONE
v.
BRYAN MICHAEL PSIMAS, UNPUBLISHED OPINION
Appellant.
CHUN, J. — Noel Schlegel petitioned for an order for protection against
Bryan Psimas to stop him from stalking her. During a hearing on the matter, the
trial court gave Psimas the choice to proceed with oral testimony that day or to
continue the hearing for submission of written materials instead. Psimas chose
to proceed with oral testimony. After considering the evidence, the trial court
granted the petition. Psimas appeals, contending the court abused its discretion
because there was insufficient evidence of stalking and the court denied him the
opportunity to submit written evidence. For the reasons below, we affirm.
I. BACKGROUND
In March 2021, Schlegel petitioned for an order for protection against
Psimas in King County Superior Court. Schlegel asserted that Psimas was
stalking her and that she feared for her safety.
The trial court held a hearing on April 13, and both parties represented
themselves. The court asked Psimas if he was prepared to present oral
testimony and have the court decide the matter that day or if he wanted an
Citations and pin cites are based on the Westlaw online version of the cited material.
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opportunity to provide a written statement or evidence in his defense. Psimas
responded, “If the evidence shows that there is a justified case for issuing a
domestic violence order, then I would like to get a continuance and review
documents that my attorney provided, you know, submit the appropriate
evidence and statement behind it.” Then he said, “But, I mean, I can also
provide my verbal testimony. I’m pretty confident. . . . [I]t’s up to you. . . . If you
want a written statement from me I can do that, too.” The court replied:
I’m asking you how you want to proceed today. And let me
tell you one more time and then I’m going to have you tell me how
you want to proceed. You have the option to either proceed today
with oral testimony. I would take your testimony into consideration
and then I’d make my ruling; or, if you want to provide—this is up to
you—a written statement, then I would re-issue and put a deadline
as to when that statement is due.
It’s either a yes you want to go forward or a no you want to be
able to provide a written statement. So tell me, do you want to go
forward today, yes or no?
Psimas responded that he would proceed that day. The court again stated, “I’m
not going to then give you an option to later provide written statements in your
defense. It’s one or the other today.” And Psimas said, “Okay. I’ll go ahead and
provide oral testimony. That’s fine.”
The court then heard the parties’ oral testimonies. Schlegel’s testimony
and sworn statement in her petition set out the following: She and Psimas had
been in a romantic relationship and worked at the same nonprofit organization.
The relationship ended in September 2020. Afterward, Psimas “incessant[ly]”
telephoned her over the course of many hours on multiple days in October and
November. She blocked his phone number in November, and that day he arrived
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at her home and painted a heart on her fence. He then took a photo of the heart
and posted it on social media where she saw it. He also started trying to reach
her through social media, her personal and work emails, and a video chat phone
application. Later that month, Psimas attended an event at which Schlegel was
volunteering even though she asked him not to come. She yelled at him to stop
stalking and harassing her. He apologized and said it was “not a big deal.” He
returned to the event multiple times to try to talk to her and take photographs of
her. Schlegel blocked Psimas on Instagram and he created a “fake account”
from which to follow her. In December, the fake account viewed a post in which
Schlegel revealed her location at a park and then Psimas drove by the park.
When Schlegel used an old phone of hers, Psimas called her on that phone; she
answered and screamed at him to leave her alone and blocked his number
again. In January 2021, the nonprofit organization terminated Schlegel’s
employment. That month, she encountered Psimas on the street while walking
her dog and when she asked him why he was following her, he left without
responding. Also that month, he attended a virtual event at which he knew she
would be speaking. Concerned for her safety, Schlegel moved to a new home.
In March, Psimas went to her previous home, where her grandmother still lived,
and sat outside in his car for several minutes. Schlegel stated that she feared for
her safety and thought she was unsafe alone.
Psimas admitted to most of the alleged conduct such as calling Schlegel
repeatedly, going to her house and painting a heart, attending the two events,
creating a “fake” Instagram account, and driving by the park. But he contended
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that each action was for an innocuous reason. And he denied taking
photographs of her or going to her former home in March. Psimas testified that
Schlegel’s petition was retribution for her termination from the nonprofit and that
there was separate litigation against her for the circumstances surrounding that
employment matter.
The court determined that Schlegel met her burden of proof. It found
Schlegel credible and Psimas not credible. It concluded that Psimas committed
acts of domestic violence pursuant to chapter 26.50 RCW and granted the
petition for an order for protection.
Psimas appeals.
II. ANALYSIS
Psimas says the court abused its discretion by granting a protection order
because insufficient evidence supports a finding that he stalked Schlegel and the
court should not have denied him the opportunity to present written evidence.
Schlegel responds that the evidence she presented supports the court’s order
and that Psimas had the opportunity to present evidence in opposition to her
petition. We conclude the court acted within its discretion.
“We review the trial court’s decision to grant or deny a protection order for
abuse of discretion and determine if the decision is manifestly unreasonable or
exercised on untenable grounds.” Nelson v. Duvall, 197 Wn. App. 441, 451, 387
P.3d 1158 (2017). And “‘[t]rial judges have wide discretion to manage their
courtrooms and conduct trials fairly, expeditiously, and impartially.’” Bill &
Melinda Gates Found. v. Pierce, 15 Wn. App. 2d 419, 444, 475 P.3d 1011 (2020)
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(quoting In re Marriage of Zigler and Sidwell, 154 Wn. App. 803, 815, 226 P.3d
202 (2010), review denied, 197 Wn.2d 1006, 483 P.3d 785 (2021)). “‘A decision
is based on untenable grounds or for untenable reasons if the trial court applies
the wrong legal standard or relies on unsupported facts.’” Nelson, 197 Wn. App.
at 451 (quoting Salas v. Hi–Tech Erectors, 168 Wn.2d 664, 669, 230 P.3d 583(2010)). We review the record in the light most favorable to the prevailing party
to determine if “substantial evidence supports the [trial court’s] findings of fact
and, if so, whether the findings support the conclusions of law.” Perry v. Costco
Wholesale Inc., 123 Wn. App. 783, 792, 98 P.3d 1264 (2004). “Substantial
evidence is a quantum of evidence sufficient to persuade a rational and fair-
minded person that the premise is true.” Nguyen v. Seattle, 179 Wn. App. 155,
163, 317 P.3d 518 (2014). “[W]e defer to the trial court on the persuasiveness of
the evidence, witness credibility and conflicting testimony.” Nelson, 197 Wn.
App. at 451.
The Domestic Violence Prevention Act1 allows a person to petition for an
order for protection in cases of domestic violence. RCW 26.50.030. The Act
defines “domestic violence” as, “Physical harm, bodily injury, assault, or the
infliction of fear of imminent physical harm, bodily injury or assault, sexual
assault, or stalking as defined in RCW 9A.46.110 of one intimate partner by
another intimate partner.” RCW 26.50.010(3)(a) (emphasis added). “Intimate
partner” includes “persons sixteen years of age or older with whom a person
1 Ch. 26.50 RCW.
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sixteen years of age or older has or has had a dating relationship.”
RCW 26.50.010(7). RCW 9A.46.110 defines stalking as follows:
(1) A person commits the crime of stalking if, without lawful
authority . . .
(a) He or she intentionally and repeatedly harasses or
repeatedly follows another person; and
(b) The person being harassed or followed is placed in fear
that the stalker intends to injure the person, another person, or
property of the person or of another person. The feeling of fear must
be one that a reasonable person in the same situation would
experience under all the circumstances; and
(c) The stalker either:
(i) Intends to frighten, intimidate, or harass the person; or
(ii) Knows or reasonably should know that the person is afraid,
intimidated, or harassed even if the stalker did not intend to place the
person in fear or intimidate or harass the person.
“Attempts to contact or follow the person after being given actual notice that the
person does not want to be contacted or followed constitutes prima facie
evidence that the stalker intends to intimidate or harass the person.”
RCW 9A.46.110(4). “It is the combination of separate acts—none of which is
necessarily criminal in its own right—that must be ‘seriously alarm[ing],
annoy[ing], harass[ing], or detrimental’ to the victim in order for the perpetrator to
have committed the criminal offense of stalking.” State v. Haines, 151 Wn. App.
428, 435, 213 P.3d 602 (2009) (emphasis and alterations in original) (quoting
RCW 10.14.020(1)).
Psimas contends that no evidence shows (1) he intended to frighten,
intimidate, or harass Schlegel, and (2) Schlegel feared physical injury. But
evidence that Psimas attempted to contact or follow Schlegel after she gave him
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“actual notice” that she “does not want to be contacted or followed constitutes
prima facie evidence” that he intended to intimidate or harass her. RCW
9A.46.110(4). In November, Schlegel blocked Psimas’s calls and, when he
arrived at an event uninvited, yelled at him to stop stalking and harassing her.
His continued attempts to contact and follow Schlegel after she told him to stop
support a finding of intent to frighten, intimidate, or harass. And Schlegel testified
that she feared for her safety and feared being alone. This evidence is “sufficient
to persuade a rational and fair-minded person that” Schlegel feared physical
injury. Nguyen, 179 Wn. App. at 163. Psimas points to his testimony explaining
his innocuous reasons for attempting to contact Schlegel and being in her
vicinity, but the court found him not credible and we do not disturb credibility
determinations on appeal. Nelson, 197 Wn. App. at 451.
Next, Psimas says he did not understand that by choosing to proceed with
the hearing, he was waiving his opportunity to submit evidence. But the court
explained that Psimas could choose to proceed on oral testimony alone or
continue for the submission of written materials. When Psimas sought to
proceed that day while also preserving his ability to submit written materials, the
court repeated the choices and asked what Psimas wanted to do. When Psimas
responded that he wanted to proceed, the court stated, “I’m not going to then
give you an option to later provide written statements in your defense. It’s one or
the other today.” Psimas replied, “Okay. I’ll go ahead and provide oral
testimony. That’s fine.” Given the record, Psimas cannot claim that the choice
between proceeding that day on testimony alone or continuing the hearing for the
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submission of evidence was unclear. Psimas contends that, had the court given
him the opportunity, he would have presented evidence that Schlegel filed her
petition as retribution for termination of her employment and evidence of
separate litigation against her. He says this evidence would have been likely to
change the court’s decision. But he testified as to both, which allowed the court
to consider them in making its decision. The trial court acted within its discretion
in ruling on the matter at the hearing.
We affirm.
WE CONCUR:
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