Mara Rae Budweg v. Nathaniel Ray McCory

• Court: Court of Appeals of Iowa
• Decided: May 11, 2022
• Docket: 21-1073
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1073 Filed May 11, 2022

MARA RAE BUDWEG, Plaintiff-Appellee,

vs.

NATHANIEL RAY MCCORY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Coleman McAllister,

Judge.

Nathaniel McCory appeals the entry of a protective order. REVERSED

AND REMANDED.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Mara Rae Budweg, Des Moines, self-represented appellee.

Considered by May, P.J., and Schumacher and Badding, JJ. 2

BADDING, Judge.

Nathaniel McCory did not handle the end of his relationship with Mara

Budweg well. A couple of months after the break-up, Mara filed a petition for relief

from domestic abuse. Following a hearing on the petition, the district court entered

a final protective order. Nathaniel appeals, claiming the district court’s finding that

he committed domestic abuse assault against Mara is not supported by substantial

evidence.1

I. Background Facts and Proceedings

Mara filed her petition for relief from domestic abuse in June 2021. The

petition alleged Nathaniel had threatened Mara, she feared for her physical safety,

and the two were in an intimate relationship at the time. In the space on the form

petition where she was asked to describe the “most recent” occurrence, Mara

wrote that Nathaniel showed up at her gym twice in the past few days, but she left

before he could speak to her. Mara then alleged that Nathaniel “has harassed

[her] multiple times via phone/text,” she has asked him to stop, and he has left

“voicemails threatening that he will just show up at [her] house or call the cops

because he is upset.”

The district court entered a temporary protective order after an ex parte

hearing. See Iowa Code § 236.4(2) (2021). At that hearing, Mara acknowledged

Nathaniel had never “physically assaulted” her, but she testified he had “made

some threatening texts or calls.” After the court explained the legal definition of an

assault to her, Mara described an incident in April when Nathaniel had been “very

1 Mara did not file a brief in this appeal. 3

angry and upset in my face, hitting—like slamming doors, hitting things” in her

presence.

A contested hearing was held in July. Mara provided more details about

the April incident at that hearing, testifying that when she asked Nathaniel to leave

her home, “[h]e left angry, yelling, slammed [the] door, hit [the] wall” and “[t]hen he

proceeded to sit in [her] driveway for an extended period of time but would not

leave.” A few days later, Nathanial showed up at Mara’s house and left a package

for her. And between February and May, he sent her some angry text messages,

an email, and five voicemails.2 After the last voicemail in mid-May, Mara texted

Nathaniel, “Please leave me alone or I will be taking the next steps.” She followed

this text message with a phone call to make sure he understood. This was the last

time they talked. Mara did not see Nathaniel again until the end of June when he

showed up at her gym to work out. She felt threatened by this because Nathaniel

lives two-and-a-half hours away from her. Nathaniel explained at the hearing that

he was in town that week for a class, and he went to Mara’s gym because it was

close to his class.

Mara maintained that Nathaniel never physically assaulted her, but when

asked if he had “done anything to place [her] in fear of immediate physical contact

2 These contacts were admitted into evidence. In the February email, Nathaniel was pleading with Mara to make things work, telling her toward the end: “You can call the police or do what ever you think you need to do. You know I’m harmless and I just need to hear from you.” The undated text messages contained profanity toward Mara and expressed Nathaniel’s frustration with her refusal to talk to him, stating at different points, “Fuck you”; “I’m fucking livid right now. Better just call the cops”; “You’re a bitch”; and “I fucking hate you.” In the five voicemails, Nathaniel told Mara that he was not threatening her but he missed her, loved her, and wanted to talk to her. In one, he said that he would “give up everything” to be with her, and she could call the police if she wanted. 4

which would be insulting, offensive, or painful,” Mara responded, “Like hitting a

door or slamming something.” Mara elaborated this occurred during the April

incident, and she feared that Nathaniel would hit her because “he has . . . said

threatening things in the past and just his temper and the uncertainty of the

situation.” She specified Nathaniel had threatened to kill her dog. When asked by

the court, “Anything else?” Mara answered, “No.” In his testimony, Nathaniel

agreed he slammed Mara’s bedroom door during the April incident and then went

to his vehicle.

In its ruling, the court found Nathaniel’s text messages and voicemails to be

threatening—or at least perceived as such by Mara—but insufficient to amount to

an assault. Yet the court found they put Mara’s “allegation of assault in proper

context,” giving credence to her claim that Nathaniel’s actions during the April

incident placed her “in fear of immediate physical contact that would be insulting,

offensive, injurious or painful to her.” And the court found it “clear from

[Nathaniel’s] actions” that he “intended to do so and he had the apparent ability to

do so.” As a result, the court found Nathaniel engaged in domestic assault and

entered a final protective order. Nathaniel appeals.

II. Standard of Review

Civil domestic abuse cases are equitable. Wilker v. Wilker, 630 N.W.2d

590, 594 (Iowa 2001). Accordingly, our review is de novo. Iowa R. App. P. 6.907;

Wilker, 630 N.W.2d at 594. We “consult the record in its entirety and formulate our

own opinion.” Wilker, 630 N.W.2d at 594.

III. Analysis 5

Nathaniel claims the evidence was insufficient to show he committed

domestic abuse. He points out that threats placing another in fear, without more,

are insufficient, and the focus is on his intent, not Mara’s expectations. He argues

the record lacks substantial evidence that he “specifically intended to assault Mara

or that she was placed in fear by any of his actions as she alleged.”

The court may grant a chapter 236 protective order upon a finding that the

defendant engaged in domestic abuse. See Iowa Code § 236.5(1)(b). The party

seeking protection is required “to prove the occurrence of domestic abuse by a

preponderance of the evidence.” Wilker, 630 N.W.2d at 596; accord Iowa Code

§ 236.4(1); Iowa R. App. P. 6.904(3)(f). “A preponderance of the evidence is the

evidence that is more convincing than opposing evidence or more likely true than

not true; it is evidence superior in weight, influence, or force.” DeLisle v. DeLisle,

No. 09-0093, 2009 WL 3088561, at *2 (Iowa Ct. App. Sept. 17, 2009) (citing

Martinek v. Belmond-Klemme Cmty. Sch. Dist., 772 N.W.2d 758, 761 (Iowa 2009)).

When the evidence is equipoise, the petitioning party “has not carried the burden

of proof by a preponderance of the evidence.” Gonzalez v. Laboy, No. 19-1890,

2020 WL 5230366, at *2 (Iowa Ct. App. Sept. 2, 2020) (quoting Greenberg v. Alter

Co., 124 N.W.2d 438, 442 (Iowa 1963)).

Domestic abuse encompasses assaults in certain relationships, such as the

intimate relationship in play here. See Iowa Code § 236.2(2)(e). Section 236.2

defines “assault” in accordance with section 708.1, which sets out alternative ways

in which a person can commit an assault. Because there was no physical assault,

Mara had to prove Nathaniel committed an act that was “intended to place [her] in

fear of immediate physical contact which will be painful, injurious, insulting, or 6

offensive, coupled with the apparent ability to execute the act.” Id. § 708.1(2)(b).

“Although codified as a general intent crime . . . , our supreme court has repeatedly

characterized assault as a specific intent crime.” Saxton v. Kahill, No. 21-0199,

2022 WL 610437, at *2 (Iowa Ct. App. Mar. 2, 2022). If the circumstances show

an actor has a subjective desire for a prohibited result, then specific intent is

satisfied, and “[i]ntent can be inferred from an act’s natural consequences.” Id.

The incident in question involved the parties getting into an argument and

Nathaniel slamming a door and hitting a wall before leaving. The district court

found, based on Nathaniel’s previous threatening behavior, that these acts

satisfied the definition of assault in section 708.1(2)(b). The evidence does show

that Nathaniel has had angry outbursts, directed profane language at Mara about

his frustration with the end of their relationship, and continued to contact her after

she told him not to. We can infer from Nathaniel’s voicemails that Mara considered

his attempts to contact her as threatening. But there is no evidence that he ever

threatened physical contact. On the contrary, the voicemails can also lead to an

inference that Nathaniel simply wanted to see Mara and come to her home to talk

about their relationship.3

The crux of Mara’s petition for relief from domestic abuse was that

Nathaniel’s outbursts of anger could lead to assaultive physical contact at some

point based on his threatening behavior in the past. But when asked what threats

3 We acknowledge the district court found that Nathaniel was not credible. See DeLisle, 2009 WL 3088561, at *2 (“[F]actual disputes depending heavily on the credibility of the witnesses are best resolved by the district court, which has a better opportunity than we do to evaluate the witnesses.”). But even Mara’s testimony alone did not prove that Nathaniel assaulted her. See id. 7

Nathaniel made to her in the past, Mara only testified about a threat to kill her dog.

There was no evidence that Nathaniel ever threatened physical harm to Mara

herself.

Absent a history of any physical abuse or threats of physical harm to the

petitioner, we have found an actor’s “angry spells,” “yelling and screaming,”

“pushing and slamming doors,” and cursing insufficient to establish the requisite

specific intent. DeLisle, 2009 WL 3088561, at *2–3. And the evidence suggests

that, after the argument started, Nathaniel slammed the door and hit the wall as he

was leaving the residence to go sit in his car. If Nathaniel had taken these actions

as he was going toward Mara instead of while he was leaving, it would be one

thing, but “the law requires an act which was intended to place another in fear of

immediate physical contact.” Id. at *3. And Nathaniel’s state of mind controls, not

Mara’s. See id. With no history of physical abuse, Mara’s evidence about

Nathaniel’s prior disturbing behavior is simply insufficient “to close a gap between

general complaints about angry behavior and specific proof of an ‘act intended to

place another in fear of immediate physical contact.’” Id. (citation omitted).

After reviewing the record de novo, we find the evidence insufficient to prove

an assault. We reverse the decision of the district court and remand for

cancellation of the protective order and dismissal of Mara’s petition. See Saxton,

2022 WL 610437, at *5.

REVERSED AND REMANDED.