L.A.C. v. R.A.P.

• Court: Missouri Court of Appeals
• Decided: June 27, 2023
• Docket: ED110930
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

L.A.C., ) No. ED110930 ) Respondent, ) Appeal from the Circuit Court of ) Cape Girardeau County vs. ) ) Honorable Julia M. Koester R.A.P., ) ) Appellant. ) Filed: June 27, 2023

I. Introduction

R.A.P. (“Appellant”) appeals from the judgment of the full order of protection entered

against him by the Circuit Court of Cape Girardeau County on August 16, 2022, whereby he was

prohibited under the Adult Abuse Act, §§ 455.010-455.0951 (the “Act”), from, inter alia,

stalking, harassing, threatening, or otherwise contacting L.A.C. (“Respondent”) for a period of

one year. In his sole point on appeal, Appellant contends the circuit court erred in entering a full

order of protection against him because the evidence was insufficient to establish that his actions

constituted domestic violence or stalking, as required under the Act. We affirm.

II. Factual and Procedural Background

On June 24, 2022, Respondent filed her petition seeking a full order of protection against

Appellant pursuant to the Act (the “Petition”). The circuit court entered an ex parte order of

1 All statutory references are to RSMo (2016). protection against Appellant the same day, and scheduled the matter for a hearing on whether to

enter a full order of protection. On August 16, 2022, the circuit court held a hearing at which

Respondent and five witnesses testified on her behalf. Appellant also testified at the hearing.

Respondent testified that she and Appellant had a “romantic relationship” from July 9, 2021, to

April 1, 2022, which ended with an altercation during which Appellant said several things that

hurt her feelings, he became “physical” with her, he started packing up their belongings into

garbage bags and hauling them outside, and he threw a “fit.” Following that altercation,

Appellant left Respondent’s house and they did not see each other for several weeks.

Respondent also testified about numerous acts of unwelcome communication and

harassment committed by Appellant several weeks after their breakup, which caused her to

become “terrified” of Appellant and live in constant fear for her personal safety and that of her

two pet dogs. The first noteworthy incident occurred on May 28, 2022, which was the first time

they saw each other since breaking up on April 1. Although they had an uneventful dinner

together, Respondent testified that when she told Appellant later that night that their relationship

was over, he “lost his mind” because she would not let him come into her house or spend the

night; Respondent also testified that he “went crazy.” Respondent blocked Appellant’s number

on her cellular phone the next day. However, Respondent testified that she still received several

calls from Appellant using unknown phone numbers, despite her requests that he stop contacting

her.

The second noteworthy incident occurred on June 14, 2022, when Appellant showed up

unannounced at Respondent’s house while she was recovering from ankle surgery. When

Respondent refused to let Appellant into her house, he became agitated and attempted to

physically force his way through the front door, placing his hand on her shoulder and screaming

2 profanities at her. Despite being on crutches, Respondent managed to prevent Appellant from

entering her house and he left, but the incident left her extremely upset and shaken.

Respondent’s boyfriend at the time was at her house when the incident occurred, but he remained

in the kitchen at Respondent’s request in order to avoid a potential physical confrontation with

Appellant.

The third noteworthy incident occurred on June 16, 2022, when Appellant again showed

up at Respondent’s house unannounced, but this time she was alone. After initially not

answering the door because she was attempting to take a shower, Respondent eventually opened

the front door to find Appellant hiding behind a car. Appellant then came into Respondent’s

front yard and began “screaming” at her. Respondent testified that Appellant said a fire would

start in her back yard, that she “will not see it coming,” and that the fire will burn her house

down with Respondent and her pet dogs in it. This incident again left Respondent upset and

shaken, prompting her to call the police and report Appellant’s actions.

Respondent also testified that ever since the circuit court entered the ex parte order of

protection on June 24, Appellant had not contacted her or visited her house; therefore, she

believed the order of protection was working and requested a full order of protection, which she

believed was the only way he would stop. In addition to Respondent’s own testimony, five

witnesses testified on her behalf, including both of her parents, her then-current boyfriend, and

two friends. All witnesses corroborated Respondent’s testimony, which included testimony that

they believed Respondent was “terrified” of Appellant and that a full order of protection would

be appropriate. Appellant also testified at the hearing, denying most of Respondent’s allegations.

At the conclusion of the hearing, the circuit court entered a full order of protection

against Appellant pursuant to § 455.040, finding that Respondent had “proven allegations of

3 domestic violence, stalking, and/or sexual assault against [Appellant].” Therefore, the circuit

court ordered Appellant not to stalk, harass, use or threaten to use physical force, communicate,

commit or threaten to commit domestic violence, molest, sexually assault, disturb the peace, or

abuse or threaten to abuse Respondent’s pets (the “Order of Protection”). The Order of

Protection expires on August 15, 2023. This appeal follows.

III. Standard of Review

As in any court-tried case, “we will affirm the judgment unless it is not supported by

substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies

the law.” McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo. App. E.D. 2006) (citing Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). “Substantial evidence is competent evidence from

which the trier of fact could reasonably decide the case.” Wallace v. Van Pelt, 969 S.W.2d 380,

382 (Mo. App. W.D. 1998). “We defer to the trial court’s determinations relating to credibility

and consider only those facts and inferences supporting the judgment.” Id. at 383. Furthermore,

“[b]ecause the trial judge is in the best position to gauge the credibility of the witnesses, in cases

under the Adult Abuse Act, the discretion of the trial court should not often be superseded.” Id.

In reviewing the circuit court’s decision in this case, we also remain cognizant that “real

harm” can result in overuse of the Act, “including the stigma that may attach to a respondent

who is ultimately labeled a ‘stalker,’” and thus, “trial courts must exercise great care to ensure

that sufficient evidence exists to support all elements of the statute before entering a full order of

protection.” McGrath, 192 S.W.3d at 517 (citing Overstreet v. Kixmiller, 120 S.W.3d 257, 259

(Mo. App. E.D. 2003)); accord Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. E.D.

2007) (“Courts must take great care to ensure the existence of sufficient evidence to support all

elements of the Adult Abuse Act before entering a full order of protection.”). We also recognize

4 that the Act “is not, nor was it intended to be, ‘a solution for minor arguments between adults.’”

Dennis v. Henley, 314 S.W.3d 786, 790 (Mo. App. S.D. 2010) (quoting Binggeli v. Hammond,

300 S.W.3d 621, 624 (Mo. App. W.D. 2010)).

Finally, we note that a petitioner must prove allegations in a petition for an order of

protection by a preponderance of the evidence in order to be entitled to any relief under the Act.

§ 455.040.1(1); Schwalm, 217 S.W.3d at 337.

IV. Discussion

In his sole point on appeal, Appellant contends that “the evidence was insufficient” to

support the circuit court’s entry of the Order of Protection. While Appellant does not state which

ground under Murphy he contests, he quotes the definition of substantial evidence; therefore, we

analyze this appeal as under the first prong of Murphy—whether the Order of Protection was

supported by substantial evidence.

Appellant generally does not dispute the occurrence of the incidents Respondent

described at the hearing, but he attempts to minimize their severity and emotional impact on

Respondent. In doing so, Appellant contends Respondent’s evidence regarding these incidents

does not meet the statutory requirements for “domestic violence” as defined in § 455.010(5),

“harassment” as defined in § 455.010(1)(e), and “stalking” as defined in § 455.010(15).

With respect to the term “domestic violence” as defined in § 455.010(5), Appellant

discusses three of the incidents raised at the hearing. First, regarding the incident on April 1,

2022, Appellant does not dispute Respondent’s testimony that he got “physical” with her, threw

a “fit,” and pushed her down. Second, regarding the incident on June 14, 2022, Appellant does

not dispute Respondent’s testimony that he showed up at her house, placed his hand on her

shoulder, and tried pushing his way into her house. Third, regarding the incident on June 16,

5 2022, Appellant does not dispute Respondent’s testimony that she called the police after he rang

her door bell, hid behind a car, and screamed that he was going to burn her house down with her

and her dogs in it. Rather, in response to these incidents, Appellant simply argues that

Respondent never mentioned that she was “physically harmed,” which he argues is an essential

element of battery. While “purposely and knowingly causing physical harm” is an element of

“battery” under the Act, see § 455.010(1)(c), battery is not the only basis upon which a circuit

court may enter a full order of protection.

“Any person who has been subject to domestic violence by a present or former family

member or household member, or who has been the victim of stalking or sexual assault, may

seek relief under [the Act]” (emphasis added). § 455.020.1; G.E.G. v. Gauert, 620 S.W.3d 676,

678 (Mo. App. W.D. 2021). The Act defines the term “household member” to include “any

person who is or has been in a continuing social relationship of a romantic or intimate nature

with the victim.” § 455.010(7).

In this case, the circuit court expressly found that Respondent’s relationship with

Appellant was a “[r]omantic/intimate social relationship,” and Appellant concedes this finding in

his brief. We agree that the record supports this finding. Therefore, in addition to seeking relief

under the Act as a victim of “stalking,” Respondent could also seek relief as someone who has

been subject to “domestic violence” by a “household member.”

The Act defines the term “domestic violence” as “abuse or stalking committed by a

family or household member, as such terms are defined in this section.” § 455.010(5). The Act

defines the term “abuse” to include, but is not limited to the following:

[T]he occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter…: (a) “Abusing a pet”, purposely or knowingly causing, attempting to cause, or threatening to cause physical injury to a pet

6 with the intent to control, punish, intimidate, or distress the petitioner; (b) “Assault”, purposely or knowingly placing or attempting to place another in fear of physical harm; (c) “Battery”, purposely or knowingly causing physical harm to another with or without a deadly weapon; (d) “Coercion”, compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage; (e) “Harassment”, engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child. Such conduct might include, but is not limited to: a. Following another about in a public place or places; b. Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity[.] …

§ 455.010(1) (underlined emphasis added).

The Act defines the term “stalking” to include “when any person purposely engages in an

unwanted course of conduct that causes alarm to another person.” § 455.010(15). For purposes

of the definition of “stalking,” the term “alarm” means “to cause fear of danger of physical

harm,” and the term “course of conduct” means “two or more acts that serve no legitimate

purpose,” and can include monitoring, observing, surveilling, threatening, or communicating to a

person by any action, method, or device. Id.

In this case, the record clearly contains substantial evidence that Appellant’s conduct

constituted “domestic violence” under the definition of “abuse” in § 455.010(1). Specifically,

the record contains substantial evidence that Appellant’s conduct constituted “assault” in that he

purposely or knowingly placed or attempted to place Respondent “in fear of physical harm.”

7 § 455.010(1)(b). Therefore, the circuit court certainly could have found that Appellant assaulted

Respondent on June 14, 2022, when he placed his hand on her shoulder when attempting to push

his way through the front door of her home. Likewise, the circuit court certainly could have

found that Appellant assaulted Respondent on June 16, 2022, when he stood in front of her house

and threatened to burn her house down with her and her dogs in it. In his brief, Appellant

suggests that he did not assault Respondent because she did not specifically testify that “she was

in fear of physical harm.” However, Appellant conveniently ignores Respondent’s repeated

testimony that she was “terrified” of Appellant, as well as the corroborating testimony of her

family and friends to that effect. In addition, the fact that Respondent called the police following

the incident on June 16, 2022, further supports an inference that she feared physical harm at the

hands of Appellant. Appellant also conveniently ignores Respondent’s testimony that shortly

before filing her Petition on June 24, 2022, she spent several days with a friend who lived in

Kentucky because she “couldn’t feel safe at home.” These are just three specific examples, but

the record contains additional evidence that supports a finding that Respondent was living in fear

of physical harm by Appellant due to these incidents.

With respect to the term “harassment” as defined in 455.010(1)(e), Appellant notes that

Respondent was required to prove that his actions “would cause a reasonable adult … to suffer

substantial emotional distress and must actually cause substantial emotional distress.” Appellant

further notes that “substantial emotional distress” means “the offending conduct must produce a

considerable or significant amount of emotional distress in a reasonable person; something

markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are

commonly experienced in day to day living,” and cites Wallace v. Van Pelt, 969 S.W.2d at 386.

While we agree that this is the general standard for establishing “harassment” under the Act, we

8 again disagree that the record does not contain substantial evidence to satisfy this standard. The

evidence supporting a finding that Appellant’s actions placed Respondent in fear of physical

harm under the definition of “domestic violence” also supports a finding that Respondent

suffered “substantial emotional distress.”

Finally, with respect to the term “stalking” as defined in § 455.010(15), Appellant notes

that proof of “alarm” requires both a subjective and objective component, and cites Skovira v.

Talley, 369 S.W.3d 780, 784 (Mo. App. S.D. 2012).2 Appellant further notes that the objective

component of proof of “alarm” requires a showing that “a reasonable person in the situation

would fear the danger of physical harm,” but provides no citation. While we agree that this is the

general standard for establishing “stalking” under the Act, we again disagree that the record does

not contain substantial evidence to satisfy this standard. Again, the evidence supporting the

circuit court’s finding that Appellant’s actions placed Respondent in fear of physical harm under

the definition of “domestic violence” also supports a finding that Respondent suffered “alarm,”

both subjectively and objectively, satisfying the definition of “stalking.”

The evidence adduced in this case provides textbook examples of “domestic violence”

and “stalking” within the meaning of the Act, and clearly meets the substantial evidence

standard. McGrath, 192 S.W.3d at 517. Furthermore, we defer to the circuit court’s assessment

of the witnesses’ credibility and will not supersede the discretion of the circuit court in entering

the Order of Protection against Appellant based on this record. Wallace, 969 S.W.2d at 383.

Point denied.

2 In his brief, Appellant references § 455.010(10)(a) for the definition of “alarm” (as used in defining the term “stalking”), which was the correct citation under the version of the Act in effect from August 28, 2009, to August 27, 2011. However, the correct citation under the current version of the Act is § 455.010(15)(a).

9 V. Conclusion

For the foregoing reasons, the judgment of the circuit court is affirmed.

_______________________________ Kelly C. Broniec, Presiding Judge

Philip M. Hess, J. and James M. Dowd, J. concur.