In the Matter of the Sexual Assault Protection Order for: Amanda Lee Lorenzen

• Court: Court of Appeals of Washington
• Decided: June 27, 2024
• Docket: 39709-2
• Status: Unpublished

Opinion

FILED JUNE 27, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Sexual Assault ) No. 39709-2-III Protection Order for ) ) ) ) UNPUBLISHED OPINION Amanda Lee Lorenzen. ) ) )

LAWRENCE-BERREY, C.J. — William Jacob Charboneau appeals a sexual assault

protection order (SAPO) issued by a superior court commissioner. The court

commissioner concluded that Charboneau’s touching of his young daughter’s genital area

was per se for the purpose of sexual gratification. Charboneau moved to revise that

order, but his motion was untimely. His error permits us to review the commissioner’s

order, rather than dismiss this appeal for his failure to appeal the subsequently entered

superior court order on revision. We conclude that the court commissioner abused its

discretion by misconstruing the law, we reverse its order, and we remand for further

proceedings.

FACTS

Amanda Lorenzen petitioned for a domestic violence protection order (DVPO)

against her ex-husband, William Jacob Charboneau. She asserted in her petition that she No. 39709-2-III In re SAPO for Lorenzen

and their two minor children, O.C., age 6, and L.C., age 10, needed protection because of

verbal and physical abuse, and that there was an open criminal case involving allegations

of Charboneau sexually abusing O.C. A superior court commissioner entered an ex parte

temporary DVPO and set a hearing date for the petition.

Before the hearing, Lorenzen filed a declaration with an attached affidavit of

dismissal from a deputy prosecutor. In the affidavit, the deputy prosecutor explained that

he investigated O.C.’s disclosures that her father and L.C. inappropriately touched her

vagina and that the State had charged Charboneau with rape of a child in the first degree

and child molestation in the first degree. However, the deputy prosecutor explained he

had the charges dismissed without prejudice because he did not believe the State could

meet its burden to prove the elements of the crimes beyond a reasonable doubt. He

noted, “[h]ad the burden of proof been any lower, the State would have proceeded to

trial.” Clerk’s Papers (CP) at 44.

On April 13, 2023, the court commissioner held a hearing on the petition.

Following argument by both parties, the commissioner orally denied Lorenzen’s request

for a DVPO, reasoning that she had failed to provide sufficient evidence to satisfy her

burden of proof. However, the commissioner indicated it would issue an SAPO

restraining Charboneau from contact with his two children.

With respect to its findings, the commissioner explained:

2 No. 39709-2-III In re SAPO for Lorenzen

I’m mindful that there is uncontested, between the parties, an account in which the respondent touched the intimate areas of his six year old daughter. Now, . . . there is no doubt that the respondent touched the intimate areas of his daughter, applying coconut oil to her genital region.[1] The parties state that there must be a finding of sexual motivation. That is correct in order for an order of this [sort] to be entered. And, it has to be met by a preponderance of the evidence. .... The case law[2] specifically states . . . with regards to the definition of sexual contact, it is the touching of the intimate areas of a . . . person done for the purpose of sexual gratification of either party. Where that contact is directly to the genital organs or the breasts, the question is resolved as a matter of law. That is what has occurred here. . . . . . . I find that based upon that sexual contact, the entry of an order of protection is appropriate.

Report of Proceedings (RP) at 22-23. Missing from the trial court’s oral ruling or written

findings is a finding that Charboneau touched his daughter for the purpose of sexual

gratification. Immediately after its oral ruling, the commissioner issued the SAPO,

restraining Charboneau from contact with O.C. and L.C.

PROCEDURE

On April 24, 2023, Charboneau moved the superior court for revision of the

commissioner’s order. He argued the commissioner abused its discretion by relying on

1 In an exhibit submitted to the court commissioner, Charboneau explained to a polygraph examiner that O.C. had a rash on her vagina, and, based on advice from his sister, he applied coconut oil to treat the rash. 2 The commissioner later mentioned In re Welfare of Adams, 24 Wn. App. 517, 601 P.2d 995 (1979), as the case supporting its ruling.

3 No. 39709-2-III In re SAPO for Lorenzen

the affidavit of dismissal as the basis for the SAPO. On May 5, 2023, Charboneau

appealed the commissioner’s order to this court.

While this appeal was pending, the superior court ruled on Charboneau’s motion

for revision. The court narrowed the SAPO to protect only O.C., because only O.C. was

a victim of sexual assault. Mot. for Suppl. of R., Lorenzen v. Charboneau, No. 39709-2-

III, Ex. 1, at 3 (Wash. Ct. App., July 31, 2023).

Pursuant to RAP 7.2(e), Charboneau moved this court to grant the superior court

permission to enter its order on revision and also asked to supplement the record with a

copy of the order. Mot. for Suppl. of the R. at 1-27. Our commissioner issued a notation

ruling permitting the superior court to enter its order and informed Charboneau that he

needed to initiate review of that order. Comm’r’s Ruling, Lorenzen v. Charboneau,

No. 39709-2-III (Wash. Ct. App., Aug. 3, 2023). Our commissioner denied

Charboneau’s motion to supplement the record, but informed him that he could

supplement the designation of his clerk’s papers without a court order. Id.

Charboneau neglected to file an amended notice of appeal to initiate review of the

superior court’s order on revision. Months later, we directed Charboneau to submit a

supplemental brief answering why we should not dismiss his appeal for failure to appeal

the superior court’s revision order. Letter from Tristen Worthen, Clerk/Administrator,

4 No. 39709-2-III In re SAPO for Lorenzen

Wash. Ct. of Appeals, Div. III, Lorenzen v. Charboneau, No. 39709-2-III (Apr. 19,

2024).

ANALYSIS

Failure to appeal the superior court’s revision order

In his supplemental brief, Charboneau contends we can review the commissioner’s

decision to issue the SAPO because the superior court did not revise the commissioner’s

order with respect to O.C. We disagree with this argument.

Under RCW 2.24.050, all commissioner rulings are subject to revision by the

superior court. “On revision, the superior court reviews both the commissioner’s findings

of fact and conclusions of law de novo based upon the evidence and issues presented to

the commissioner.” State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). Once the

superior court enters an order on revision, the appeal is from that order. Id. Thus, this

court reviews the superior court’s order, not the commissioner’s order. Id.

Nevertheless, Charboneau’s appeal of the commissioner’s order is proper, but for

a reason he has not argued. RCW 2.24.050 provides in relevant part:

All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after entry of any order or judgment of the court commissioner. . . . [U]nless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of

5 No. 39709-2-III In re SAPO for Lorenzen

the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.

Here, Charboneau’s motion for revision was filed on the 11th day after entry of

the commissioner’s order. His untimely motion for revision saves him from his mistake

of appealing the wrong order. In this case, two wrongs do make a right. Because

Charboneau failed to timely move for revision of the commissioner’s order, that order

became final and was subject to direct appeal to this court.

Review of commissioner’s order

We review a decision to grant or deny a protection order for abuse of discretion.

Rodriguez v. Zavala, 188 Wn.2d 586, 590, 398 P.3d 1071 (2017). Abuse of discretion is

found only when the decision is manifestly unreasonable, or exercised on untenable

grounds, or for untenable reasons. State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d

32 (2009). A decision is based on untenable grounds or made for untenable reasons if it

rests on facts unsupported in the record or was reached by applying the wrong legal

standard. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).

Charboneau raises various arguments why we should reverse the commissioner’s

order. Toward the end of his brief, he raises what we deem is the winning argument: he

argues the commissioner erred by treating a father’s touching of his young daughter’s

vagina as a per se touching for purpose of sexual gratification.

6 No. 39709-2-III In re SAPO for Lorenzen

To enter an SAPO, the court must find that the petitioner, or the person on whose

behalf a petition has been brought, has been “subjected to nonconsensual sexual conduct

or nonconsensual sexual penetration by the respondent.” RCW 7.105.225(1)(b);

RCW 7.105.010(28). “Sexual conduct” includes “any intentional or knowing touching of

the clothed or unclothed body of a child under the age of 16, if done for the purpose of

sexual gratification or arousal of the respondent or others.” RCW 7.105.010(32)(e).

In its ruling, the commissioner relied on In re Welfare of Adams, 24 Wn. App.

517, 601 P.2d 995 (1979), to support its per se finding of sexual gratification. Adams

concerned the crime of indecent liberties, former RCW 9A.88.100 (1975), which required

a finding of sexual contact. Id. at 519 n.1. At the time, the statute defined “sexual

contact” as “any touching of the sexual or other intimate parts of a person done for the

purpose of gratifying sexual desire of either party.” Id. The Adams court explained that

if the contact is directly to the genital organs or breasts, the “sexual or other intimate

parts” element is susceptible to being resolved as a matter of law. Id. at 519. The Adams

court ultimately held that the defendant’s touching of the victim’s hips was “sexual

contact” because the touching was incidental to other activities that were intended to

promote sexual gratification to the defendant, such as him removing the pants of the

victim and rocking as if trying to “work his way in.” Id. at 520-21.

7 No. 39709-2-III In re SAPO for Lorenzen

Adams does not hold that touching of the genital area constitutes per se touching

for purposes of sexual gratification. The Adams court simply recited the rule that the

“sexual or other intimate parts” element of the crime of indecent liberties was satisfied as

a matter of law where the genitals or breasts were touched. Id. at 519. The Adams court

still required a showing of other activities incidental to the sexual contact that promoted

sexual gratification. See id. at 520-21.

Charboneau, citing State v. Powell, 62 Wn. App. 914, 816 P.2d 86 (1991), argues

that proof of sexual gratification requires evidence beyond simply touching the intimate

parts of one’s child. We agree. The Powell court cited multiple cases, including Adams,

where the courts required some additional evidence of sexual gratification to convict

where the evidence showed the defendant touched sexual or intimate parts. Id. at 917.

Here, the commissioner misconstrued Adams and failed to make the required

finding of whether Charboneau touched O.C. for the purpose of sexual gratification.

Because the commissioner applied the wrong legal standard, it abused its discretion and

we therefore vacate the SAPO.

Because remand is required, we address Charboneau’s central argument on appeal.

He argues the court commissioner abused its discretion by relying on the deputy

prosecutor’s affidavit. We disagree.

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Generally, the Rules of Evidence need not be applied in proceedings for protection

orders. ER 110l(c)(4); RCW 7.105.200(8). Accordingly, competent evidence sufficient

to support a court's decision to grant or deny a petition for a protection order may contain

hearsay or be wholly documentary. Blackmon v. Blackmon, 155 Wn. App. 715,722,230

P.3d 233 (2010); see also Gourley v. Gourley, 158 Wn.2d 460,467, 145 P.3d 1185

(2006). With that said, it is solely the court's province to decide whether Charboneau

touched O.C. for the purpose of sexual gratification, and the lower court should be wary

of giving undue weight to an affiant's opinion that touches on what motivated

Charboneau, especially when the affiant is not subject to cross-examination.

Reversed and remanded.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Lawrence-Berrey, C.J.

WE CONCUR:

Pennell, J. Staab, J.