Natasha Powell v. Tomasz Fraczek

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NATASHA MARIE POWELL,
DIVISION ONE
Appellant,
No. 81237-8-I
v.
UNPUBLISHED OPINION
THOMASZ MARK FRACZEK,
Respondent.
DWYER, J. — Natasha Powell appeals from the superior court’s order
denying her petition for a domestic violence protection order. Powell and amici
raise numerous arguments on appeal. These include allegations that the
superior court erred by (1) not making certain findings of fact that Powell claims
were supported by substantial evidence, (2) misapplying Washington law
regarding the requirements for when a domestic violence protection order shall
issue, (3) failing to make a finding as to whether Powell had the capacity to
consent, (4) considering evidence in violation of Washington’s “rape shield” laws,
(5) basing its decision on text messages that were unauthenticated, and (6)
considering text messages that merely served to humiliate and embarrass
Powell, denying her meaningful access to justice. Because Powell does not
establish an entitlement to relief on any of these claims, we affirm.
No. 81237-8-I/2
I
Natasha Powell and Thomasz Fraczek were graduate students at the
University of Washington. On April 3, 2019, Powell initiated a Title IX 1 complaint
through the university, alleging that Fraczek had sexually assaulted her on March
17, 2019. In an initial order dated June 17, 2019, a Title IX investigator
concluded that Fraczek did not sexually assault Powell. Powell requested
administrative review of the initial order and, on July 29, a Title IX panel affirmed
the order.
On September 23, 2019, Powell filed a petition for a domestic violence
protection order in the King County Superior Court. In the petition, Powell
alleged that Fraczek sexually assaulted her on three separate occasions. Powell
also requested a temporary order of protection to remain in effect until a hearing
was held on her petition. A court commissioner granted Powell’s ex parte
request for a temporary order of protection. On October 21, a court
commissioner conducted an adversarial hearing on the matter and granted
Powell’s petition for an order of protection. The order stated that it would remain
in effect “for at least” four years. Fraczek subsequently filed a motion for
revision.
On January 16, 2020, the superior court heard the motion for revision.
During the hearing, the superior court found that Fraczek had neither sexually
assaulted Powell nor inflicted upon Powell a fear of imminent physical harm. The
court’s oral ruling was followed by the entry of three separate written orders that
1 See 20 U.S.C. §§ 1681-1688.
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No. 81237-8-I/3
(1) granted Fraczek’s motion for revision, (2) rescinded the domestic violence
protection order that was entered by the commissioner, and (3) denied Powell’s
petition for a domestic violence protection order. On January 27, Powell filed a
motion for reconsideration. The superior court denied this motion.
Powell appeals.
II
A
Where, as here, “the superior court makes a decision on revision, ‘the
appeal is from the superior court’s decision, not the commissioner’s.’” State v.
Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004) (quoting State v. Hoffman, 115
Wn. App. 91, 101, 60 P.3d 1261 (2003)).
Chapter 26.50 RCW authorizes the issuance of a protection order if the
party seeking it alleges “the existence of domestic violence, and . . . [declares]
the specific facts and circumstances from which relief is sought.” RCW
26.50.030(1). Domestic violence is defined, in relevant part, as “[p]hysical harm,
bodily injury, assault, or the infliction of fear of imminent physical harm, bodily
injury or assault, sexual assault, or stalking . . . of one intimate partner by another
intimate partner.” RCW 26.50.010(3). Because an order of protection is a civil
remedy, the petitioner must establish its propriety by a preponderance of the
evidence. 2
2 See Reese v. Stroh, 128 Wn.2d 300, 312, 907 P.2d 282 (1995) (stating that, in civil
cases, the burden of proof is a preponderance of the evidence); City of Tacoma v. State, 117
Wn.2d 348, 351-52, 816 P.2d 7 (1991) (stating that chapter 26.50 RCW “created a civil remedy in
the form of a protection order”).
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No. 81237-8-I/4
The superior court’s “decision to grant or deny a domestic violence
protection order is reviewed for an abuse of discretion.” Maldonado v.
Maldonado, 197 Wn. App. 779, 789, 391 P.3d 546 (2017). “A trial court abuses
its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-
47, 940 P.2d 1362 (1997).
When a superior court makes findings of fact, those findings are “verities
on appeal” when they are “supported by substantial evidence.” Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992). “Substantial
evidence is evidence in sufficient quantum to persuade a fair-minded person of
the truth of the declared premise.” Holland v. Boeing Co., 90 Wn.2d 384, 390-91,
583 P.2d 621 (1978). “Where written findings of fact are incomplete, we may rely
on the trial court’s oral findings for purposes of review.” State v. Robertson, 88
Wn. App. 836, 843, 947 P.2d 765 (1997).
Moreover, “[w]here there is conflicting evidence, it is not the role of the
appellate court to weigh and evaluate the evidence.” Burnside v. Simpson Paper
Co., 66 Wn. App. 510, 526, 832 P.2d 537 (1992), aff’d, 123 Wn.2d 93, 864 P.2d
937 (1994). Rather, our “role is simply to determine whether substantial
evidence supports the findings of fact and, if so, ‘whether the findings in turn
support the trial court’s conclusions of law.’” Greene v. Greene, 97 Wn. App.
708, 714, 986 P.2d 144 (1999) (quoting Org. to Preserve Agric. Lands v. Adams
County, 128 Wn.2d 869, 882, 913 P.2d 793 (1996)). Moreover, “[q]uestions of
credibility are left to the trier of fact and will not be overturned on appeal.” State
4
No. 81237-8-I/5
v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998). “Although the trier of fact is
free to believe or disbelieve any evidence presented at trial, ‘[a]ppellate courts do
not hear or weigh evidence, find facts, or substitute their opinions for those of the
trier-of-fact.’” Yorkston v. Whatcom County, 11 Wn. App. 2d 815, 831, 461 P.3d
392 (alteration in original) (quoting Quinn v. Cherry Lane Auto Plaza, Inc., 153
Wn. App. 710, 717, 225 P.3d 266 (2009)), review denied, 195 Wn.2d 1020(2020). In conducting our review, we view the evidence in the light most
favorable to the prevailing party. Scott’s Excavating Vancouver, LLC v. Winlock
Props., LLC, 176 Wn. App. 335, 342, 308 P.3d 791 (2013).
B
The predicate of Powell’s petition for a domestic violence protection order
was that Fraczek engaged in one or more acts of domestic violence.
Specifically, Powell alleged that Fraczek sexually assaulted her on three
separate occasions: first on October 20, 2018, then on January 11, 2019, and
again on March 17, 2019. Additionally, Powell’s declaration asserted that
Fraczek “has demonstrated a lack of boundaries that leaves me fearful for what
he will do next. I am afraid for my life every time I am anywhere near the
University of Washington.”
By a written order entered on January 16, 2020, the superior court denied
Powell’s petition, concluding that “[a] preponderance of the evidence has not
established that there is domestic violence.” This conclusion of law was
supported by the superior court’s findings of fact, which were entered following
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No. 81237-8-I/6
the hearing on Fraczek’s motion for revision. In particular, the superior court
found that Fraczek did not sexually assault Powell:
I do not find that there was a sexual assault. I think that there was
consent. The two of you certainly did some drinking together.
Maybe you had more than he did. But the declarations that I
reviewed from folks that were with you, up to the point where you
were alone together and being intimate, do not support the
issuance of a protection order.
Furthermore, the superior court found that Fraczek did not inflict on Powell
a fear of imminent physical harm:
I do not find that your fear of . . . Mr. Fraczek is one that is based
upon a rational belief that he is going -- that you are in fear of
imminent physical harm. What I see is a man that probably does
not want to have contact with you. . . . I do not believe that he has
any interest in having anything, frankly, to do with you.
Because these findings of fact are supported by substantial evidence, we
consider them to be verities on appeal. 3
C
The superior court’s finding that Fraczek did not sexually assault Powell
on October 20, 2018, is supported by substantial evidence. On that day, Fraczek
and Powell attended a football game together at the University of Washington.
Before the game started, Fraczek and Powell purchased “a pack of Coors” and
drank “some of the beers.” After the game ended, Fraczek, Powell, and two
other individuals—Remy Margerum and Emily Brown—went to a bar to get food
and drinks.
3 Because Domestic Violence Protection Act petitions commence a “special proceeding,”
Scheib v. Crosby, 160 Wn. App. 345, 351-52, 249 P.3d 184 (2011), strict compliance with the CR
52 mandate concerning the entry and content of the findings of fact is not required. CR 81(a).
6
No. 81237-8-I/7
Fraczek’s declaration provided that, while the four were having dinner,
Powell put “her hand between [Fraczek’s] legs and had rubbed [his] penis till [he]
was hard.” The group then went to another bar where they consumed more
alcohol. At that bar, Powell “touch[ed] [Fraczek] under the table.” The group
ultimately decided to go to a different bar to dance. While there, Powell and
Fraczek “ma[de] out passionately.”
According to Fraczek, Powell told him “that she wanted Emily, Remy and
[Fraczek] to all come back to her place so [they] could have a foursome.” Powell
“claimed Emily had suggested the idea and she said she was super into it.” The
group went to Powell’s house where Remy and Brown “ma[de] out” and Powell
and Fraczek “ma[de] out.”
Powell and Fraczek subsequently went into Powell’s bedroom. According
to Margerum, Powell “appear[ed] to go willingly.” Fraczek recollected that, once
they were inside Powell’s bedroom, they started “making out, fondling, and giving
oral.” Additionally, Powell “kept saying things like ‘oh god I want to fuck you’ and
ask[ed] [Fraczek] to see if Remy or Emily had a condom.” Fraczek exited the
bedroom and asked Margerum and Brown whether either of them had a condom.
Neither Brown nor Margerum had a condom. Then, according to Fraczek, he
and Powell “ended up having unprotected sex” and he “tr[ied] to pull out only to
have her grab [him] with both her legs and arms and pull [him] in.”
After Fraczek and Powell woke up the next day, they “lay[ed] around in
bed for a while.” Fraczek eventually left Powell’s house and, around noon, went
to a pho restaurant with Margerum. Around 3:30 p.m., Powell sent a text
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No. 81237-8-I/8
message to Fraczek, inviting him to study at a coffee shop. Powell then sent two
text messages to Fraczek that stated, “Dude this is so off topic but do you think
you can get like hungover or have to come down from sex? Lol” and “Because
I’m like sad and just want more sex now hahaha fuck my life.”
In her petition for a domestic violence protection order, Powell alleged
that, on October 20, 2018, Fraczek engaged in sexual intercourse with her and
that she, as a result of consuming alcohol, did not recall having sex.
However, in light of the evidence summarized above, a fair-minded person
could be persuaded that Fraczek did not sexually assault Powell on October 20,
2018. Indeed, the text messages sent by Powell to Fraczek suggest that Powell
both remembered and consented to having sexual intercourse with Fraczek.
Moreover, according to Margerum, Powell appeared to willingly enter her
bedroom with Fraczek. Once in the bedroom, Fraczek recalled Powell saying
that she wanted “to fuck” him and asked that he see if either Margerum or Brown
had a condom. Thus, the superior court’s finding that Powell consented to
engaging in sexual intercourse with Fraczek on this date is supported by
substantial evidence.
D
Substantial evidence also supports the superior court’s finding that
Fraczek did not sexually assault Powell on January 11, 2019. On that day,
Powell and Fraczek got drinks and dinner with other students from their graduate
program. Afterward, Powell and Fraczek went back to Fraczek’s apartment.
Fraczek’s roommates, Vineeth Sai Narajala and Soham Ghose, were also at the
8
No. 81237-8-I/9
apartment playing a video game. In a declaration, Narajala described the night
as follows:
4. On the evening in question Tomek[4] and Natasha
were with Soham and me for the first part of the evening. We were
playing Mortal Kombat. One of the game characters is a buxom
character named Sonya, who was wearing a suggestive vest. The
body parts in the game are very realistic, which is a recent advent
from the software.
5. Natasha and Tomek watched the game for about an
hour. People were enjoying themselves and Natasha said that a
vest would look good [on her]. Tomek said, “I have a vest” and
Natasha replied, “Let’s see it.” She was enthusiastic and the two
quickly departed for Tomek’s bedroom.
According to Fraczek, once he and Powell entered his bedroom, he
“showed her the vest [and] she told [him] to take off [his] shirt.” Then, they
“quickly ended up making out on [Fraczek’s] bed, with [Powell] sitting on top of
[Fraczek].” Powell then started crying “about her old ex-boyfriend . . . , about
how her dad didn’t love her and had left her mom because she was a bad child,
about how she was a failure because she hadn’t invented a cure for cancer
which her first college professor had died of.” After some time, Powell exited the
bedroom and went to the restroom.
Narajala recalled seeing Powell attend to the restroom:
6. At some point afterwards, I saw Natasha cross the
hall to the bathroom, partially clad. She seemed fine. I saw no
signs of distress nor had I heard any coming from the bedroom.
None of us had any drinks and I saw no signs that Natasha was
drunk. She was not unsteady and did not slur her words.
Powell then returned to the bedroom. Fraczek recollected that she
“tackled [him] down onto the bed and kissed [him].” Fraczek “said that [he]
4 A variation of Fraczek’s first name is Tomek.
9
No. 81237-8-I/10
was . . . shocked at how quickly she had switched from crying about her ex and
dead professor to being aggressively sexual with [him]. She countered with
‘yeah, nick[5] has told me that before, I guess the endorphins make me really
horny.’” They then engaged in sexual intercourse. According to Narajala:
7. I also remember hearing the two have sex through the
walls of my adjacent room, which shares a wall, on another
occasion or occasions. I heard moaning and the bed moving.
....
10. I am stunned that Natasha apparently claims that she
blacked out and that she was raped on January [11]. This claim
simply does not fit with their interaction and everything that I
observed that evening. She was not unsteady or halting; she was
alert and an active participant in the game. She was excited to go
try on the “vest.”
Ghose’s recollection of the evening corresponded with Narajala’s:
5. I am shocked that Natasha claims that she blacked
out and that she was raped. She was not unsteady or halting; she
was alert and was an active and enthusiastic participant in the
game. Additionally, none of us had anything to drink during the
time we played the game, and I do not believe Tomek ever had
drinks in his room.
The next day, on January 12, Powell sent a text message to Fraczek
around noon saying, “I’m sorry I was a mess Not sure why I was crying that hard
or what started it tbh.” Fraczek replied, “Yeah, I don’t really remember how that
happened. One sec you were on top of me, and about to put the vest on, and
the next you were on the floor.”
Additionally, on January 14, Powell exchanged several text messages with
Fraczek that referenced the video game that she, Fraczek, Narajala, and Ghose
5 “Nick” was the name of an individual with whom Powell was previously involved in a
relationship.
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No. 81237-8-I/11
had been playing on the night that she alleged to have been sexually assaulted.
In particular, Powell texted Fraczek, “Wait why are you up?” Fraczek replied,
“We got high and ended up fighting the stripper chick.” Powell responded,
“Hahaha that’s such a great sentence” followed by “The chick with boobs that
don’t obey the laws of physics?” Powell subsequently sent a text message that
stated, “Yeah, we’ve kinda been getting our asse[s] handed to us.” Powell
replied, “Lowkey that seemed to be the trend when I was watching you p.”
In her petition for a domestic violence protection order, Powell alleged
that, on January 11, 2019, Fraczek engaged in sexual intercourse with her and
that she, as a result of consuming alcohol, had no recollection of having sex.
However, given the evidence summarized above, a fair-minded person
could be persuaded that Fraczek did not sexually assault Powell on January 11,
2019. The text messages sent by Powell to Fraczek indicate that Powell had a
recollection of the events that occurred on the night in question. Although Powell
and Fraczek consumed alcohol prior to arriving at the apartment, the declarations
filed by Narajala and Ghose averred that they did not see Powell consume any
alcohol while she was at the apartment. Narajala’s declaration also provided that
Powell and Fraczek “watched the game for about an hour.” Furthermore,
according to Fraczek, Powell “tackled” him onto his bed upon returning from the
restroom before kissing him and engaging in sexual intercourse. Accordingly,
the superior court’s finding that Powell consented to having sexual intercourse
with Fraczek on this date is supported by substantial evidence.
11
No. 81237-8-I/12
E
Substantial evidence also supports the superior court’s finding that
Fraczek did not sexually assault Powell on March 17, 2019. On that day, Powell
and Fraczek met at a karaoke bar (named “Encore Karaoke”) along with other
members of their graduate program. According to Fraczek, while they were at
the karaoke bar, Powell “pushed [him] up against the wall and kissed [him].” At
8:40 p.m., Fraczek sent a text message to Powell which stated, “Where did y’all
go?” Powell responded, “To do shots and get cigs” and “Get drunk with us.”
Approximately 30 minutes later, Powell sent Fraczek two text messages, which
stated, “You wanna do me don’t you?” and “I’m sorry I’m drunk.” Fraczek replied,
“How could you tell? Haha.”
After leaving the karaoke bar, the group went to another bar nearby “to
have shots.” Fraczek recalled that, while they were at the other bar, Powell
stood leaning up against the barstool [that he] was sitting on and
was soon in [his] lap. [He] caressed her leg, to which she pressed
herself even more into [him]. After a bit of this, she however loudly
exclaimed “don’t touch me hoe”. [He] . . . immediately removed
[his] hands.
Another member of the graduate program, Nastacia Goodwin, witnessed
this event. Her statement was summarized by the Title IX investigator as follows:
Nastacia arrived at Encore at about 6 pm. Tomek was there at the
same time. Natasha repeatedly commented that Tomek is wearing
his hair down and “he knows what that does to me.” Natasha was
getting increasingly angry at Tomek because he said she was “bad
on the mountain” referring to her climbing skills. Natasha
repeatedly said that Tomek wanted to “fuck” her.
After Karaoke, the group went next door to Earl’s, a bar. Natasha
sat on Tomek’s lap. His hands were on the outside of her thighs
which stabilized the bar stool. Natasha said to Tomek “Don’t
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No. 81237-8-I/13
fucking touch me.” Tomek looked surprised by . . . Natasha’s
reaction. Nastacia told Natasha if she did not want Tomek to touch
her perhaps she should sit on a stool he was not occupying.
Natasha said “it’s my fucking stool. I sit where I want to.”[6]
According to Fraczek, around midnight he “made the comment that [he]
was ready to head home.” Powell “decided to walk home with [him] since she
had parked her car in front of [his] house.” Fraczek told Powell that he “would
prefer if she did not drive in her current state and that [he] was happy to get her
an uber.” Powell declined his offer. Fraczek then “asked if she wanted to come
upstairs and watch a movie.”
Fraczek then “put on [a] movie, [Powell] sat down next to [him], and [they
started] making out on the couch.” After some time, “Natasha said to [Fraczek]
‘what are we still doing out here, I want you to fuck me.’” Fraczek then went to
his bedroom where Powell “was already on the bed and not wearing pants” and
“told [him] to close the door and ‘come here already.’” Fraczek “suggested that
[he] wanted to eat Natasha out” and, according to Fraczek, Powell “was initially
shy and hesitant, [but] when [he] insisted that it was something [he] enjoyed
doing, she relented.” They proceeded to have sex multiple times.
Because Fraczek did not use a condom during one of the times that they
had sex, he and Powell went to a pharmacy to get a “Plan B pill.” After going to
the pharmacy, Powell “dropped [Fraczek] off at [his] house.” Shortly after 3:00
a.m., Powell sent Fraczek a text message, which stated, “Dude I’m really
6 The records wherein this statement is contained were filed in the superior court as
sealed reports. In determining Powell’s allegations of domestic violence, the superior court
explained that it “review[ed] the Title IX investigation.” By asserting on appeal that the superior
court’s findings of fact are not supported by substantial evidence, Powell has waived any claim
that we should not consider these documents when reviewing the superior court’s decision.
13
No. 81237-8-I/14
scared.” Fraczek responded, “It’ll be ok You’ll make it through,” “And I’m here
with whatever you need,” and “Plan B is gonna work though.” Powell replied,
“I’m sorry I’m a shitty asshole,” to which Fraczek replied, “Sorry I’m a dick who
doesn’t have self control.” Powell then responded, “I want to die,” “It’s not your
fault,” and “I’m the one who came up there and told you to fuck me.”
Later that day, Powell communicated with Goodwin and Goodwin’s
impressions from that interaction were summarized in the Title IX investigation as
follows:
On [March] 18, 2019, Natasha sent Nastacia a text which stated
“we fucking did it again.” Natasha stated in the texts that she
wanted to curl up and die. Natasha expressed self-loathing and
guilt. Nastacia stated that the texts were similar to Natasha’s
reaction when she slept with Tomek previously. Natasha said she
told Tomek that having sex was a bad idea. Nastacia took that as a
normal interaction between Tomek and Natasha. Natasha would
park by Tomek’s house, they would drink, Natasha would say it was
a bad idea, and they would end up sleeping together. . . .
....
. . . In the context of the relationship between Tomek and Natasha it
did not seem like saying sex was a “bad idea” meant they did not
want to have sex.
In her petition for a domestic violence protection order, Powell alleged
that, on March 17, 2019, Fraczek engaged in sexual intercourse with her despite
her stating numerous times that she did not want to have sex.
Yet, considering all of the evidence summarized above, a fair-minded
person could be persuaded that Fraczek did not sexually assault Powell on
March 17, 2019. Indeed, Powell’s text message, which stated, “I’m the one who
. . . told you to fuck me,” corroborates Fraczek’s recollection of events wherein
Powell said to him, “‘what are we still doing out here, I want you to fuck me.’”
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No. 81237-8-I/15
Additionally, Goodwin’s recollection of Powell and Fraczek’s interactions earlier
in the night—particularly where Powell sat on Fraczek’s lap at the bar and then
expressed anger at him for touching her leg—align with Fraczek’s declaration of
what had transpired. From this evidence, a rational trier of fact could assign
more credibility to Fraczek’s account than to Powell’s. Accordingly, the superior
court’s finding that Fraczek did not sexually assault Powell on this date is
supported by substantial evidence.
F
Finally, substantial evidence supports the superior court’s finding that
Fraczek did not inflict on Powell a fear of imminent physical harm. During the
hearing on Fraczek’s motion for revision, the superior court stated, “What I see is
a man that probably does not want to have contact with you” and “I do not
believe that he has any interest in having anything, frankly, to do with you.”
Indeed, after Powell sent several text messages to Fraczek indicating that she
did not consent to having sexual intercourse with him on March 17, 2019,
Fraczek responded with text messages that said, “I’m staying away,” “I will
continue to give you space,” “I will do my best so you don’t have to see me.”
Likewise, in response to a text message from Powell which stated, “I’m not going
to argue this with you I did not want sex I do not feel safe Please just leave me
alone,” Fraczek sent a text message that read, “Can do.”
Fraczek also explained the circumstances surrounding several occasions
during which he saw Powell following the conclusion of the Title IX investigation.
According to Fraczek, he saw Powell on one occasion at the University of
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No. 81237-8-I/16
Washington and, upon seeing her, he “panicked, wanted to turn and run, but in
[his] fear all [he] managed was to turn 90 degrees and run face first into a wall.”
He then “lower[ed] his head[] and walk[ed] past [Powell] as quickly as possible,
sticking as close to the wall as [he] could.” On another occasion, Fraczek, along
with some of his friends, entered a restaurant near the university and, upon
entering, Fraczek “saw Natasha was standing in line.” Fraczek stated that he
“instantly turned on [his] heel [and] told [his] friends ‘we’re leaving’ and walked
away.” Finally, Fraczek explained that he saw Powell several days after the
temporary order of protection was entered. Fraczek went to the “Crags Climbing
Center,” which is located at the university. A police officer subsequently
approached Fraczek and informed him that “she had received notification that
[he] was at the climbing gym, and that Natasha wanted to come climb.” The
police officer escorted Fraczek out of the building, and Fraczek saw Powell
“sitting on a bench.” Fraczek told the police officer “that the complainant was
sitting close by and asked the officer to escort [him] a bit further.”
In her petition for a domestic violence protection order, Powell stated that
Fraczek “has demonstrated a lack of boundaries that leaves me fearful for what
he will do next. I am afraid for my life every time I am anywhere near the
University of Washington.”
Here, the superior court’s findings that Fraczek did not sexually assault
Powell are supported by substantial evidence. Additionally, both Fraczek’s
declaration and the text messages above provide a sufficient quantum of
evidence to support the superior court’s findings that Fraczek did “not want to
16
No. 81237-8-I/17
have contact with” Powell and that Fraczek did not “ha[ve] any interest in having
anything . . . to do with” Powell. Thus, a fair-minded person could be persuaded
that Fraczek was not proved to have inflicted on Powell a fear of imminent
physical harm.
Accordingly, the superior court did not abuse its discretion by denying
Powell’s petition for a domestic violence protection order.
III
A
Powell asserts that the superior court erred because substantial evidence
exists within the record to support findings of fact that were not made by the
court. 7 Her argument is off the mark. Powell’s assignment of error, couched in
terms of a lack of substantial evidence, asks us to afford more weight to certain
evidence over other evidence in a manner that is favorable to her. In short, she
wants the evidence viewed in her favor. Yet issues of credibility are resolved by
the trier of fact, not the appellate court. We are not a venue in which a party is
allowed to re-litigate the entirety of its case. As to fact-finding, our role is limited
to determining whether the superior court was authorized to enter the findings of
fact that it entered. Because, as explained above, substantial evidence supports
the superior courts findings, the court was so authorized. 8
7 Powell also wants us to review the findings of fact made by the commissioner. This is
contrary to law. Just as we do not defer to the decision of the Title IX panel, we do not attribute
any significance to the decision of the commissioner. Neither the court commissioner nor those
who served on the Title IX panel are elected judges. Our review is confined to the decision made
by the elected superior court judge.
8 In her reply brief, Powell contends, for the first time, that the superior court’s findings
are not supported by substantial evidence because the superior court did not weigh the evidence.
Again, Powell misconstrues what it means for a finding to be supported by substantial evidence.
In any event, the record indicates that the superior court did, in fact, weigh the evidence:
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No. 81237-8-I/18
Accordingly, the superior court did not err.
B
Powell and amici contend that the superior court abused its discretion by
misinterpreting our Supreme Court’s opinion in In re Marriage of Freeman, 169
Wn.2d 664, 239 P.3d 557 (2010). 9 Specifically, they assert that the superior
court improperly interpreted the Freeman decision to provide that, in order to be
So what I have to rely upon, of course, is the exact same thing that
Commissioner Schaefer relied upon, which is the record before me. The record
is huge, and I want to be very clear that I read -- I can’t swear that I read every
single text. I -- but I read the vast majority of them and all of the declarations and
the declarations of the parties and all of the students, and I did review the Title IX
investigation, and I did review that there were a lot of shifting accounts.
9 In Freeman, our Supreme Court expressed a rule that has since been superseded by
an act of the legislature. In Freeman, the Supreme Court stated that a superior court must make
two determinations in order to grant a motion to modify or terminate a permanent domestic
violence protection order. 169 Wn.2d at 672-74. First, the superior court must conclude, “by a
preponderance of the evidence[,] . . . that [the moving party] will not resume acts of domestic
violence.” Freeman, 169 Wn.2d at 673. Second, the superior court must determine “whether the
facts support a current reasonable fear of imminent harm.” Freeman, 169 Wn.2d at 674.
In 2011, the legislature amended RCW 26.50.130 in response to the Freeman decision.
This statute provides the current framework that must guide a superior court’s decision to grant or
deny a motion to terminate a permanent protection order:
The court may not terminate an order for protection that is permanent or issued
for a fixed period exceeding two years upon a motion of the respondent unless
the respondent proves by a preponderance of the evidence that there has been a
substantial change in circumstances such that the respondent is not likely to
resume acts of domestic violence against the petitioner or those persons
protected by the protection order if the order is terminated. In a motion by the
respondent for termination of an order for protection that is permanent or issued
for a fixed period exceeding two years, the petitioner bears no burden of proving
that he or she has a current reasonable fear of imminent harm by the
respondent.
RCW 26.50.130(3)(a) (emphasis added).
The legislature’s amendment of RCW 26.50.130 did not supersede the requirement
expressed in Freeman that the facts establishing a “fear of imminent physical harm,” as provided
in the definition of “domestic violence” in RCW 26.50.010(3), “must reasonably relate to . . . the
fear of imminent harm.” 169 Wn.2d at 674 (italicization omitted). Additionally, neither the
Supreme Court’s opinion in Freeman nor the legislature’s amendment of RCW 26.50.130
changed the basic requirement that, for a domestic violence protection order to issue, the party
seeking it must establish “the existence of domestic violence.” RCW 26.50.030(1). Again,
domestic violence is defined, in relevant part, as “[p]hysical harm, bodily injury, assault, or the
infliction of fear of imminent physical harm, bodily injury or assault, sexual assault, or stalking . . .
of one intimate partner by another intimate partner.” RCW 26.50.010(3). Thus, to be entitled to a
domestic violence protection order, Powell bore the burden of establishing that Fraczek engaged
in one or more acts of domestic violence.
18
No. 81237-8-I/19
entitled to a domestic violence protection order, Powell was required to establish
that she was not only assaulted by Fraczek, but also that Fraczek inflicted on her
a fear of imminent physical harm. 10
Even if the superior court misinterpreted Freeman to require such a
showing in order for a petition for a domestic violence protection order to be
granted, Powell fails to show how she was prejudiced by this. Indeed, the
superior court found that Fraczek did not sexually assault Powell and that
Fraczek did not inflict on Powell an imminent fear of physical harm. In other
words, the superior court’s decision was not based on an incorrect interpretation
of Freeman. Rather, it was based on the fact that Powell had failed to meet her
burden of proving that Fraczek engaged in any act of domestic violence.
Accordingly, the superior court did not abuse its discretion.
10 Powell cites to the following musing of the superior court:
I find, frankly, relying on Freeman v. Freeman, which is a Supreme Court
case, I have to rely on that. There is an absolute requirement that . . . where the
basis for a protection order is a past act of domestic violence, plus there has to
be a present fear of imminent harm, the facts relied on have to be sufficient to
persuade a rational person that such fear both subjectively exists and is
objectively reasonable, and that is the part that . . . convinces me that this order
needs to be removed.
I do not find that your fear of . . . Mr. Fraczek is one that is based upon a
rational belief . . . that you are in fear of imminent physical harm.
As explained in footnote 9, to establish a fear of imminent physical harm, the facts “must
reasonably relate to . . . the fear of imminent harm.” Freeman, 169 Wn.2d at 674 (italicization
omitted). To the extent that the superior court interpreted Freeman to require such a showing,
the superior court’s statement was not improper.
In our view, the superior court may have been concerned by the emphasis placed by
Powell on the commissioner’s decision (an emphasis repeated in the briefs to us). The superior
court may have believed that it was “terminating” the order entered by the commissioner. But, of
course, this is not so. Because the commissioner is not an elected judge, the decision of the
commissioner was prevented from becoming a final decision of the court by the filing of the
motion for revision. No matter the heading on the caption, the order was only of temporary
effect—awaiting the final decision of the elected superior court judge.
19
No. 81237-8-I/20
C
Powell and amici also assert that the superior court erred by not making
an express finding as to whether she had the capacity to consent. In support of
this claim, Powell cites to statutory provisions regarding sexual assault protection
orders (codified in chapter 7.90 RCW) and case law interpreting those
provisions. 11 However, Powell did not file a petition for a sexual assault
protection order. Rather, she filed a petition for a domestic violence protection
order pursuant to chapter 26.50 RCW. We apply statutes as they are written and
adopted by the legislature. Unlike chapter 7.90 RCW, there is no language
within chapter 26.50 RCW that mandates a trial court to find whether a petitioner
had the capacity to consent to an alleged sexual assault. What was required
under chapter 26.50 RCW was the entry of a finding of consent that was
supported by substantial evidence in the record. More to the point, the record
makes clear that testimony and evidence of Powell’s capacity to consent was
considered by the trial judge and is part of the substantial evidence that supports
the court’s finding of consent.
Accordingly, this assignment of error fails.
D
Powell and amici next contend that the superior court improperly
considered Powell’s past sexual behavior when it denied her petition for a
domestic violence protection order. Specifically, they assert that the superior
11 See Nelson v. Duvall, 197 Wn. App. 441, 456, 387 P.3d 1158 (2017) (interpreting the
term “nonconsensual” in RCW 7.90.090(1)(a) to require the trial court to consider “evidence that
the victim lacked the mental capacity to consent at the time”).
20
No. 81237-8-I/21
court violated Washington “rape shield” laws when it considered evidence
indicating that Powell had been raped in 2015. We disagree. 12
As an initial matter, we recognize that the rules of evidence—other than
those regarding privileges, RCW 9A.44.020, and ER 412—need not be applied in
proceedings concerning petitions for domestic violence protection orders. ER
1101(c)(4). 13
ER 412 provides, in pertinent part:
SEXUAL OFFENSES – VICTIM’S PAST BEHAVIOR
(a) Criminal cases. [Reserved. See RCW 9A.44.020.]
(b) Civil Cases; Evidence Generally Inadmissible. The
following evidence is not admissible in any civil proceeding
involving alleged sexual misconduct except as provided in sections
(c) and (d):
(1) Evidence offered to prove that any alleged victim
engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual
predisposition.
12 Fraczek contends that, in the superior court, Powell did not “raise any issue or make
any argument based on the rape shield statute, RCW 9A.44.020, or Evidence Rule 412 [and
therefore] waived any alleged error in the trial court admitting the text messages.” However, in
her motion for reconsideration, Powell asserted that the superior court improperly considered the
rape that she had experienced in 2015:
Both opposing counsel and the Court indicated that petitioner’s 2015 rape may
have clouded her judgment about her interactions with the respondent. Past
sexual abuse, assault or rape should not be used against a petitioner, just as
past consensual sexual activity with a respondent does not indicate that a
petitioner cannot be sexually assaulted by the respondent in the future.
Because Powell raised a claim of error as to the superior court’s consideration of the rape
that she had experienced in 2015, we consider her claim of error to be preserved.
13 ER 1011 provides:
(c) When Rules Need Not Be Applied. The rules (other than with
respect to privileges, the rape shield statute and ER 412) need not be applied in
the following situations:
....
(4) Applications for Protection Orders. Protection order proceedings
under Chapters 7.90, 7.92, 7.94, 10.14, 26.50 and 74.34 RCW. Provided when a
judge proposes to consider information from a criminal or civil database, the
judge shall disclose the information to each party present at the hearing; on
timely request, provide each party with an opportunity to be heard; and, take
appropriate measures to alleviate litigants’ safety concerns. The judge has
discretion not to disclose information that he or she does not propose to
consider.
21
No. 81237-8-I/22
ER 412 makes clear that RCW 9A.44.020 does not apply to civil cases.
Nonetheless, this statute provides, in relevant part:
Evidence of the victim’s past sexual behavior including but not
limited to the victim’s marital history, divorce history, or general
reputation for promiscuity, nonchasity, or sexual mores contrary to
community standards is inadmissible on the issue of credibility and
is inadmissible to prove the victim’s consent except as provided in
subsection (3) of this section, but when the perpetrator and the
victim have engaged in sexual intercourse with each other in the
past, and when the past behavior is material to the issue of
consent, evidence concerning the past behavior between the
perpetrator and the victim may be admissible on the issue of
consent to the offense.
RCW 9A.44.020(2).
Powell and amici claim that the following excerpt from the hearing on
Fraczek’s motion for revision demonstrates that the trial court violated ER 412:
So what I have to rely upon, of course, is the . . . record
before me. The record is huge, and I want to be very clear that I
read -- I can’t swear that I read every single text. I -- but I read the
vast majority of them and all of the declarations and the
declarations of the parties and all of the students, and I did review
the Title IX investigation, and I did review that there were a lot of
shifting accounts. And I am not suggesting that, you know, you
didn’t win in that one and so you went ahead and changed your
story up.
What I’m suggesting is that, you know, talking to other
people and experiencing the fear and the absolute emotional
discomfort that Ms. Powell has, and that is absolutely objective to
me. I see you up here. Your hands are shaking. I watched the
hearing before Commissioner Schaefer. You were in a similar state
of complete discomfort, so I don’t minimize that at all.
But I think that perhaps your response and your reaction and
speaking with people and, you know, other things that I can’t
process for you, you know, your past rape, all these other things
perhaps contributed to a shift in the account of the three incidents
and a narrative shifting of it. Again, I don’t think anybody
intentionally misrepresented anything to this court.
(Emphasis added.)
22
No. 81237-8-I/23
According to Powell and amici, the superior court improperly considered
evidence indicating that Powell was raped in 2015 to explain why she may have
believed that she was sexually assaulted by Fraczek. In making this argument,
Powell and amici assert that evidence of the past rape was evidence of Powell’s
past sexual behavior. To the contrary, we will not hold that being raped is
engaging in sexual behavior. There is no evidence that, in enacting RCW
9A.44.020, the legislature intended a “victim’s past sexual behavior,” a term
referencing volitional acts, to encompass a rape. RCW 9A.44.020(2). Likewise,
in adopting ER 412, there is no indication that our Supreme Court intended the
phrase “engaged in other sexual behavior,” a term describing volitional acts, to
include rape. See ER 412(b)(1). The assertion by Powell and amici that being
raped should be viewed as “engaging in sexual behavior” is repugnant.
Indeed, a prominent dictionary defines “behavior” as “[t]he manner in
which one behaves.” AMERICAN HERITAGE DICTIONARY at 167 (3d ed. 1992).
Moreover, “behave” is defined as “[t]o conduct (oneself) in a specified way.”
AMERICAN HERITAGE, supra, at 167. Behavior, then, implies a sense of agency or
control. It implies volition. But when an individual is raped, the victim does not
exert agency or control over the encounter. Plainly, rape is not “past sexual
behavior.”
Moreover, there is no indication in the record that the superior court
considered any of the evidence submitted by the parties for any improper
purpose in violation of ER 412. Indeed, the superior court explained the
purposes for which it considered the evidence as follows:
23
No. 81237-8-I/24
What I find the most important thing for me, other than the
law, is the texts. They’re important to me because they show me
what I can’t see otherwise, which is how -- what kind of relationship
-- and I’m using that word loosely, because it was a loose
relationship, but it was a relationship between two people that were
in some ways very, very close, discussing every aspect of intimate,
difficult topics repeatedly. . . .
. . . I spent my time -- most of my time, other than on the
declarations, looking at the text messages, and really I did focus on
immediately before and immediately after the three incidents in
question because that was the most important to me.
Thus, the superior court analyzed the evidence in order to understand the
relationship between Powell and Fraczek and the events surrounding the three
incidents during which Powell alleged to have been sexually assaulted by
Fraczek. There is no indication in the record that, in doing so, the superior court
used the evidence to determine whether Powell engaged in any other sexual
behavior or to establish Powell’s sexual propensity. It did consider the event’s
possible impact on Powell’s later perception of the events that transpired
between Fraczek and Powell.
Accordingly, the superior court did not act contrary to ER 412.
E
Powell also contends that the superior court erred by considering the text
messages that were filed by Fraczek because, she asserts, they lacked
authentication, having been submitted in the form of Excel spreadsheets. This
argument fails. As previously explained, the rules of evidence (except for those
pertaining to privileges, the rape shield statute, and ER 412) are not applicable to
protection order proceedings brought under chapter 26.50 RCW. ER 1101(c)(4).
The requirement of authentication is contained within the rules of evidence. See
24
No. 81237-8-I/25
ER 901(a) 14 Therefore, the superior court did not err by considering the text
messages without requiring authentication of the type required by the rules of
evidence.
F
Powell and amici next assert that the superior court erred by considering
the text messages because, they contend, many of them were irrelevant and
they were submitted by Fraczek merely to embarrass and humiliate Powell, thus
depriving her of “meaningful access to justice.” We disagree.
Although the rules of evidence are not applicable to protection order
proceedings brought pursuant to chapter 26.50 RCW, such proceedings must
nevertheless meet basic due-process requirements. Gourley v. Gourley, 158
Wn.2d 460, 467, 145 P.3d 1185 (2006). “‘The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful
manner.’” Gourley, 158 Wn.2d at 467 (internal quotation marks omitted)
(quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18(1976)). To determine what process is due in a particular case, we consider:
(1) the private interest impacted by the government action; (2) “the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards”; and (3) the government interest,
including the additional burden that added procedural safeguards
would entail.
Gourley, 158 Wn.2d at 468 (quoting Mathews, 424 U.S. at 335).
14 ER 901(a) provides the requirement that evidence be authenticated: “The requirement
of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.”
25
No. 81237-8-I/26
Here, there was no risk of an erroneous deprivation of any interest. The
text messages contained conversations between Powell and Fraczek that
occurred both hours before and hours after the alleged incidents of sexual
assault. This information was highly relevant to the issue of whether Fraczek
sexually assaulted Powell on the dates in question. To the extent that these text
messages contained any irrelevant information, the record indicates that the
superior court did not consider such information. Indeed, the superior court
explained that, while “looking at the text messages, . . . I did focus on
immediately before and immediately after the three incidents in question.”
The text messages that were exchanged between Powell and Fraczek in
the time surrounding the alleged incidents of sexual assault contained
information that was (1) inconsistent with Powell’s account of events, (2)
consistent with Fraczek’s account of events, and (3) consistent with the account
of events described by Narajala, Ghose, and Goodwin. In her declaration in
support of her petition for a domestic violence protection order, Powell stated that
she did not remember engaging in sexual intercourse with Fraczek on October
20, 2018, and January 11, 2019. However, on October 21, 2018, Powell sent
Fraczek two text messages, which stated, “Dude this is so off topic but do you
think you can get like hungover or have to come down from sex? Lol” and
“Because I’m like sad and just want more sex now hahaha fuck my life.”
Additionally, in the days following January 11, 2019, Powell sent Fraczek multiple
text messages referencing events that transpired moments before the alleged
26
No. 81237-8-I/27
incident occurred. These text messages were inconsistent with Powell’s
declaration that she could not recall engaging in sexual intercourse with Fraczek.
Next, in the declaration in support of her petition, Powell stated that, on
March 17, 2019, Fraczek engaged in sexual intercourse with her despite her
numerous statements that she did not want to have sex. But hours after Fraczek
allegedly sexually assaulted her, Powell sent Fraczek a text message, which
stated, “I’m the one who came up there and told you to fuck me.” This text
message was inconsistent with Powell’s account and, thus, was relevant to the
issue of whether Fraczek was more truthful in his account of events.
Next, the text messages were relevant to the issue of whether Fraczek
sexually assaulted Powell because they were consistent with Fraczek’s
recollection of what had transpired on the three dates in question. In his
declaration, Fraczek stated that, prior to engaging in sexual intercourse on
October 20, 2018, Powell “kept saying things like ‘oh god I want to fuck you.’”
Regarding the incident on January 11, 2019, Fraczek stated that he and Powell
did not consume any alcohol while playing video games with his roommates.
Finally, with regard to the March 17, 2019, incident, Fraczek stated that, prior to
engaging in sexual intercourse, Powell said to him “what are we still doing out
here, I want you to fuck me.” The text messages quoted above are consistent
with, and relevant to, the statements made in Fraczek’s declaration. Moreover,
the statements made by Fraczek in these text messages were relevant because
they provided context to the statements made by Powell.
27
No. 81237-8-I/28
Finally, the text messages were relevant because they were consistent
with, and added credibility to, the accounts of Narajala, Ghose, and Goodwin
regarding the events. Powell alleged that she did not recall having sexual
intercourse with Fraczek on January 11, 2019. However, Narajala’s declaration
provided that, “[n]one of us had any drinks and I saw no signs that Natasha was
drunk” and that Powell’s claim “that she blacked out” “simply does not fit with . . .
everything that I observed that evening.” Similarly, Ghose’s declaration provided
that Powell “was not unsteady or halting” and “none of us had anything to drink
during the time we played the game, and I do not believe Tomek ever had drinks
in his room.” The text messages from Powell referencing details from the video
game that she, Fraczek, Narajala, and Ghose played on January 11, 2019, are
consistent with, and thus relevant to, the veracity of the declarations of Narajala
and Ghose.
Additionally, in a document from the Title IX investigation, Goodwin is
summarized as describing her conversation with Powell after the incident on
March 17, 2019. In this conversation, Powell “said she told Tomek that having
sex was a bad idea,” “expressed self-loathing and guilt,” and “stated . . . that she
wanted to curl up and die.” Similarly, Powell’s declaration in support of her
petition provides that, when she informed Fraczek that she did not consent to
having sexual intercourse with him, she stated, among other things, that “this is a
bad idea.” However, according to Goodwin, “it did not seem like saying sex was
a ‘bad idea’ meant [that Powell and Fraczek] did not want to have sex.” Goodwin
stated that, on previous occasions, “Natasha would park by Tomek’s house, they
28
No. 81237-8-I/29
would drink, Natasha would say it was a bad idea, and they would end up
sleeping together.”
The text messages between Powell and Fraczek are consistent with
Goodwin’s account. On March 18, 2019, Powell texted Fraczek, “You’re all
better off without me, especially you,” “I want to die,” “I hate myself,” and other
text messages that may be described as expressing “self-loathing and guilt.”
Additionally, these text messages provided context regarding why Powell was
making these statements. For example, Powell sent a text message to Fraczek
at 3:37 p.m. on March 18, 2019, which provided:
This is probably going to hurt but I have someone I love more than
anything and wanted to spend my life with and now I might be
fucking pregnant because I’m a piece of fucking shit that has no
self control I’m horrible and I deserve to be miserable and alone
and to die How could I do this to him? ( I want to die[.]
These text messages are consistent with, and relevant to, Goodwin’s
belief that, when Powell said that sex with Fraczek was a “bad idea,” she did not
mean that she did not consent to having sexual intercourse with him.
In sum, the text messages did not function to embarrass or harass Powell.
Rather, they were directly relevant to the issue of whether Fraczek had sexually
assaulted Powell. Accordingly, the superior court’s consideration of the text
messages did not deprive Powell of any process due to her.
29
No. 81237-8-I/30
Affirmed.
WE CONCUR:
30