Jeffery Parsons v. Christina Parsons

2022 Ark. App. 493, 656 S.W.3d 188

• Court: Court of Appeals of Arkansas
• Decided: November 30, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 493 ARKANSAS COURT OF APPEALS DIVISION III No. CV-22-29

Opinion Delivered November 30, 2022

JEFFERY PARSONS APPEAL FROM THE SALINE COUNTY APPELLANT CIRCUIT COURT [NO. 63DR-20-942] V. HONORABLE ELLEN B. BRANTLEY, CHRISTINA PARSONS JUDGE APPELLEE AFFIRMED

WAYMOND M. BROWN, Judge

In this one-brief appeal, appellant Jeffery Parsons appeals the Saline County Circuit Court’s

order entered on October 5, 2021, granting appellee Christina Parsons’s petition for a final order of

protection against him. On appeal, Jeffery asserts various hearing-related errors, and he argues there

was insufficient evidence to support a domestic-abuse finding and the issuance of the order of

protection. We affirm.

This case began on October 23, 2020, when Christina filed a petition and affidavit for an

order of protection. In her affidavit, Christina alleged several incidents of domestic abuse that

included both physical violence and threats. She alleged that Jeffery hit her, broke items in their

home, and threatened to “kill [her] parents and come over there with a box cutter, bust open the

door, cut [her] abdomen open with the box cutter and shove [her] guts in [her] mouth” if she refused

to have an abortion. She further stated in her affidavit, “I want this order because I am afraid of Jeff

and what he will do to me since he is a Benton police officer. I was afraid the police would not help since Jeff had worked at the department so long and was friends [with] the other officers. Today he

has already called me 15 times since my interview [with Captain] Haworth. Today, I’m afraid he will

know that I’m at my parents and what he will do to me and my parents.”

In light of these allegations, the circuit court entered an ex parte temporary order of

protection against Jeffery on October 26, 2020, prohibiting him from contacting Christina.

A hearing on the final order of protection was held on October 1, 2021. Christina testified

that she disclosed to Captain Haworth with the Benton Police Department details of abuse endured

during her marriage to Jeffery. She stated that after Jeffery had found out she spoke to Captain

Haworth about what was going on, she sought a protective order because, on the basis of their

history, “[she] didn’t know what he would do to [her].”

Christina testified about the following incident that occurred on August 6, 2017: “[Jeffery]

was drunk and he hit me repeatedly where it busted the back of my ear open. And it gave me a black

eye. And I ended up getting Bell’s palsy from it.” She elaborated that shortly thereafter, on August

10, “I went to the doctor because I was having facial weakness on the left side of my face. I couldn’t

raise my eyebrows. I couldn’t smile. I couldn’t move that side of my face.” Christina testified that

she took photos of the injuries and emailed them to herself; however, she testified that Jeffery deleted

the emails.

Christina stated that in February 2020, during an argument, Jeffery came up behind her and

put her in a chokehold when she tried to leave. Christina also stated that when she found out she was

pregnant in March, Jeffery tried to force her to have an abortion. Christina testified that on March

14, “he told me that he would kill my parents if I didn’t have the abortion and that he would come

over there and kick the door down, cut my abdomen open with a box cutter and shove my guts in

2 my mouth.” Christina further stated that in early April there was another incident. She explained,

“[H]e cornered me in the closet and he hit me repeatedly causing knots on my head. And I ended up

having a concussion from it. I didn’t go to a doctor for it, but I know the signs of a concussion. I

was vomiting. I couldn’t sit up straight. I couldn’t walk straight. I ended up having to call off work

for a couple of days afterwards.” Christina testified that these were the incidents she described to

Captain Haworth. She feared that after disclosing these events, she thought Jeffery would kill her.

A log of text messages was presented showing Jeffery was upset because he thought Christina

turned her cell-phone location services off. She stated that he had to know her whereabouts at all

times, and she was not allowed to disable the location services. Jeffery objected; however, the court

sustained the objection, stating, “Well, I have to say, I consider wanting to keep tabs on somebody

part of a pattern of domestic abuse. Or it can be. I will not sustain that objection. It’s overruled.”

Christina further stated she insisted to Jeffery that she did not turn her location services off, to which

Jeffery responded, “Yeah, bull-fucking shit.” She stated that she always had to respond to his messages

and had to call him every day at noon on her lunch break. If she failed to do so, he would “go days

without talking to [her].” She stated that she was “afraid to work late because [she] knew what would

happen.”

Christina testified that, at the time of the hearing, there were pending criminal charges against

Jeffery for “domestic battery, terroristic threatening, interference with emergency communications.

And there’s another one. I can’t –– I don’t remember exactly what it is.” Jeffery stipulated that

there was a criminal no-contact order in effect in the pending criminal case that prohibited him from

contacting Christina.

3 Christina testified that Jeffery had previously violently retaliated against her for things he did

not like, and when she filed for the order of protection, she felt that further retaliation was imminent.

She testified, “He always told me that –– because I had threatened to call the police on him before,

and he told me they wouldn’t do anything because of his position there and they were friends with

him. And I believed him.”

Christina stated that since filing the petition for the order of protection, she has had issues

with Jeffery driving by her house, and he tried to “follow” her on Pinterest, a social media platform.

She stated that she “had to buy cameras and everything for the house.” Christina also testified that

she had to start therapy and was diagnosed with PTSD and prescribed medication because of the

situation with Jeffery.

Jeffery moved to dismiss the petition, arguing that Christina failed to make a prima facie case

for the order of protection. The circuit court denied the motion.

On cross-examination Christina acknowledged that she had no text messages of direct threats

or pictures of injuries caused by Jeffery nor did she provide witnesses that could corroborate any

injuries. She stated that he “had a history of deleting all [her] stuff.”

On his own behalf, Jeffery testified that he and Christina had arguments but had a “normal

relationship.” He denied hitting her, giving her Bell’s palsy, breaking the TV, or threatening her.

Jeffery also denied driving by Christina’s house and claimed that he only passed nearby because she

lived off of a main street in the city and he also lives in that direction. He stated that the allegations

of domestic abuse began after Christina found out he was having an extramarital affair. Jeffery

admitted that he is subject to a criminal no-contact order but has not been arrested for violating that

order or the temporary order of protection that had been in place for almost a year.

4 Following the hearing, the circuit court entered a final order of protection prohibiting Jeffery

from contacting Christina for a period of one year. Jeffery appealed.

As a threshold matter, we first briefly address the issue of mootness. Generally, a case

becomes moot when any judgment rendered would have no practical effect upon a then-existing legal

controversy.1 Here, the one-year final order of protection was entered on October 1, 2021, and

expired on September 30, 2022; however, pursuant to our holding in Poland v. Poland,2 Jeffery’s

appeal of the expired final order of protection is not moot due to the adverse collateral-consequences

exception that attend a finding of domestic abuse.

At the outset, Jeffery objected to the order-of-protection proceedings being held via a Zoom

hearing. He contends the circuit court failed to follow the mandate of our supreme court and

“erroneously employed judicial discretion in refusing to grant [him] an in-person hearing for the

Order of Protection violating his rights as afforded to him by the Supreme Court of Arkansas.”

On March 11, 2020, the governor of Arkansas issued an executive order declaring a state of

emergency in an effort to reduce the spread of COVID-19. The per curiam released by our supreme

court on June 10, 2021,3 announcing its newest protocols to help protect the public in response to

the COVID-19 global pandemic, which was in effect at the October 1, 2021 hearing, provided the

following:

On November 20, 2020, in response to the COVID-19 pandemic, we implemented certain protocols to maintain the safety of jurors, litigants, attorneys, court personnel, and the public. See In re Response to the COVID-19 Pandemic, 2020 Ark. 384 (per curiam). Among those protocols was the following:

1 Davis v. Brushy Island Pub. Water Auth., 375 Ark. 249, 290 S.W.3d 16 (2008).

2 2017 Ark. App. 178, 518 S.W.3d 98. 3 See In re Response to COVID-19 Pandemic––Return to Regular Standards for Remote Ct. Participation and Reopening of the Justice Bldg., 2021 Ark. 135 (per curiam).

5 If any attorney, party, witness, or a member of their immediate family or household, has an underlying medical condition that places them at higher risk for contracting COVID-19, they may choose to participate remotely, preferably by videoconference, in a court proceeding, and no further explanation shall be required. If the proceeding cannot be held remotely, a continuance shall be granted.

Id. at 3. Our Committee on Civil Practice recommends that we abandon this protocol concerning requests for remote participation, and we find that it is no longer necessary in light of the continued downward trend in COVID-19 infection rates. Therefore, effective immediately, requests for remote participation shall be resolved through a return to the case- by-case exercise of judicial discretion under the applicable standards such as those set forth in Arkansas Rule of Civil Procedure 43(a).

Jeffery argues that the judicial discretion provided for in the aforementioned per curiam

applied only to requests for remote hearings and not, as here, when “a remote attendance participant

requests to proceed in person” instead. Because he failed to preserve the issue for our review, we do

not reach the merit of his argument.

At the hearing before the circuit court, Jeffery stated,

– – we requested the order of protection part of this, at a minimum, be held in person. I believe the per curiam states that.

So at this point in time I am not asking to continue the order of protection because it’s been out there for a year under temporary status, but I believe that due to issues with, you know, his civil liberties – – you know, being able to confront his accuser, his ability to adequately cross examine them, because credibility is going to be a major issue, and the per curiam opinion, we would have requested that this order of protection part be in person.

Since Jeffery failed to request a continuance for the purpose of holding the hearing in person and

instead expressly agreed to proceeding via Zoom due to the extended time period the temporary

protection order had been in place, we find he waived the issue for appeal. Appellant cannot fail to

request a remedy below and then claim error on appeal.

Jeffery next argues that the circuit court erred in denying him the opportunity to question

Christina using her own medical records. On cross-examination, concerning her Bell’s-palsy

6 diagnosis, Jeffery attempted to impeach Christina with her medical records. On appeal, he argues

that her medical records point to alternate potential causes of the Bell’s palsy—family history of

hypertension or a possible tubing accident—other than domestic abuse. Christina’s counsel objected

to the use of the medical documents because they were not authenticated by “someone from the

hospital or a medical person.” The circuit court agreed and prohibited questions pertaining to

Christina’s medical records.

We will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of

discretion.4 Nor will we reverse absent a showing of prejudice.5 A circuit court has wide discretion

in evidentiary determinations.6

When challenging the exclusion of evidence, a party must make a proffer of the excluded

evidence at trial so that the appellate court can review the decision, unless the substance of the

evidence is apparent from the context.7 Here, Jeffery neglected to proffer any testimony by Christina

to the circuit court. From the record, we cannot determine what notations her medical records

contained. Without such, we have no way of determining whether Jeffery sustained prejudice.

For his next point on appeal, Jeffery argues that the circuit court erred in denying him the

opportunity to refresh Christina’s recollection. Jeffery contends that on cross-examination, in an

effort to point out a discrepancy in Christina’s testimony as to the timeline of events, he attempted

to refresh Christina’s recollection using the transcript of her interview with Captain Haworth.

4 Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). 5 Id.

6 Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). 7 Riley v. State, 2012 Ark. 462.

7 Christina’s counsel objected to the use of the transcript because it had not been certified, and Captain

Haworth was not available to authenticate the transcript. The circuit court prohibited use of the

transcript, stating, “If you have someone there who can authenticate it, that would be a different

matter. But you don’t.” Jeffery was then instructed to “move on.”

Again, Jeffery failed to proffer the evidence that he sought to have admitted. A proffer

“permits the trial judge to make an informed evidentiary ruling” and “create[s] a clear record that an

appellate court can review to determine whether there was reversible error in excluding the

[evidence].”8 A review of the record reveals that Jeffery failed to apprise the circuit court of the

relevance of the transcript. Absent a proffer, we are unable to determine whether prejudice resulted

from the exclusion of the evidence.

Last, Jeffery argues that there was insufficient evidence that he committed domestic abuse

against Christina.

The standard of review after an order of protection is granted is whether the circuit court’s

findings are clearly erroneous.9 A finding is clearly erroneous when, although there is evidence to

support it, the reviewing court on the entire evidence is left with a definite and firm conviction that

a mistake has been committed.10 Disputed facts and determinations of the credibility of the witnesses

are within the province of the fact-finder.11

8 Sharp v. State, 2018 Ark. 274, 555 S.W.3d 878. 9 Poland v. Poland, 2017 Ark. App. 178, 518 S.W.3d 98 (2017). 10 Id. 11 Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585.

8 At a hearing on a petition filed under the Domestic Abuse Act, upon a finding of domestic

abuse, the circuit court may provide relief to the petitioner.12 Domestic abuse is defined as physical

harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or

assault between family or household members.13

Jeffery argues that the circuit court failed to “establish a finding of domestic abuse or include

in its ruling any semblance of a reason that fits the statutory requirements for an order of protection

to be granted.” He contends that Christina’s claims of physical harm and injury lacked sufficient

proof and corroboration and that the circuit court granted the protection order “simply because

[Christina] appeared to be scared of [Jeffery].” Jeffery does not deny that Christina testified to

incidents that would constitute domestic abuse. Instead, he argues that the incidents did not occur

and that her claims required “additional proof or corroboration.” He argues the “burden does not lie

on [Jeffery] to prove these things that [Christina] claimed did not happen. The burden falls on

[Christina] to prove that they did happen and that she was a truthful witness.”

Christina testified at the hearing to multiple incidents resulting in physical injury. She stated

that Jeffery hit her and caused her to have a black eye and busted ear. She also described an incident

in the closet when Jeffery repeatedly hit her, causing knots on her head. Christina further detailed

Jeffery’s threats to kill her and her parents if she refused to have an abortion. Jeffery’s denial that

these things occurred does not amount to a lack of evidence of domestic abuse. The circuit court

heard two vastly different versions of events, after which it granted the order of protection, finding

that Christina provided “pretty detailed” testimony in terms of the various incidents she alleged and

12 Ark. Code Ann. § 9-15-205(a) (Repl. 2020). 13 Ark. Code Ann. § 9-15-103(4)(A) (Repl. 2020).

9 observing her “to be actively frightened of [Jeffery].” Although Jeffery would have us find his version

of events believable, the credibility of witnesses is within the province of the fact-finder, and we

cannot say that the circuit court’s findings were clearly erroneous in light of the testimony presented

at the hearing below.

Accordingly, we affirm the order of protection entered against Jeffery.

Affirmed.

KLAPPENBACH and GRUBER, JJ., agree.

Digby Law Firm, by: Bobby R. Digby II, for appellant.

One brief only.