Amanda F. v. Daniel K.
| Decision Date | 17 February 2023 |
| Docket Number | S-22-498. |
| Citation | 313 Neb. 573,984 N.W.2d 909 |
| Parties | AMANDA F., appellee, v. DANIEL K., appellant. |
| Court | Nebraska Supreme Court |
Bell Island, Gering, of Island Law Office, P.C., L.L.O., for appellant.
Danielle Larson and Michelle M. Mitchell, of Legal Aid of Nebraska, for appellee.
Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Miller -Lerman, J.
Amanda F. was granted an ex parte sexual assault protection order against her ex-boyfriend, Daniel K., by the district court for Scotts Bluff County. After the close of evidence at a hearing contesting the continuance of the ex parte protection order, the district court found that Amanda's testimony and statements were credible and uncontradicted. The district court found that the evidence showed that a statutory sexual assault offense had occurred and concluded that the risk of future harm was not a consideration under the sexual assault protection order statute, Neb. Rev. Stat. § 28-311.11 (Cum. Supp. 2022). The district court determined that the protection order should remain in effect for a period of 1 year. Daniel appeals and claims that the court erred when it concluded that the risk of future harm was not relevant and that, applying the correct standard, there was not sufficient evidence of a risk of future harm to continue the protection order. In this opinion we clarify, inter alia, that in a contested sexual assault show cause hearing, the risk of future harm is relevant. Upon our de novo review of the record, we see no error in the district court's finding that a sexual assault occurred, and upon reviewing all the evidence relevant to the risk of future harm to Amanda, we affirm the continuation of the sexual assault protection order.
Amanda and Daniel dated each other in 2018 and 2019. According to Amanda, after they had dated for around 6 months, Daniel began to "push the boundaries" and would touch her and put his finger inside her vagina without consent. During one encounter, Daniel rubbed his penis on various parts of Amanda's body and put his finger inside her vagina; at one point, she thought he had tried to put his penis inside her vagina, but he told her that it was his finger.
Amanda and Daniel stopped dating in January 2019 but continued to interact occasionally. Between their breakup and August 2020, they exchanged text messages on several holidays, and Amanda borrowed a book from Daniel and picked up items from his house. She testified that they went hiking together at one point. Amanda, who emphasized the importance of her faith and the faith community in her life, testified that during this period, she was "working very hard to do what I was told to do and forgive [Daniel] how God forgives, which means that I pretended that it didn't happen because God forgives our sins, and so I was supposed to forgive and forget all of it."
In August 2020, Daniel called Amanda to discuss his actions during their dating relationship and sought her forgiveness. During that conversation, Daniel admitted that during the incident in which Amanda was penetrated, Daniel had inserted his penis inside her vagina, and that he had lied when he said it was his finger. Daniel wanted Amanda to forgive his conduct, and if she did not forgive him, he wanted to meet with her so they could reach a peace and he could live "in peace with God."
Amanda was disturbed by the telephone conversation and testified that she sought counsel from her pastor. She explained that "not only was that a really upsetting information to receive, but it was bringing up something that we had left alone for a very long time that I had hoped to leave alone." Amanda did not feel comfortable "on a personal level" to meet with Daniel but was unsure if she had a moral responsibility to put her "personal feelings aside" and meet with him in person "on a faith level." She testified that she did not "want to be a barrier to anyone's relationship with God."
After Amanda spoke with her pastor and his wife, the pastor reported Amanda's allegations to police, which evolved into a police investigation and criminal charges against Daniel. A jury ultimately found Daniel not guilty, and the charges against him were dismissed.
On May 26, 2022, the day Daniel was acquitted in the criminal case, Amanda filed a petition and affidavit for a sexual assault protection order against him. Based on the allegations in the affidavit, the district court granted an ex parte sexual assault protection order.
Daniel requested a hearing on the protection order, as provided by § 28-311.11(7). At the hearing on June 17, 2022, both parties appeared with counsel. Evidence was adduced, and the court admitted evidence of Amanda's petition and affidavit, as well as documents regarding Daniel's criminal case. Amanda testified regarding her relationship with Daniel, incidents of nonconsensual sexual touching in 2018 and 2019, his telephone call to her in August 2020, and her concern of retaliation after Daniel's acquittal in his criminal case. No other witnesses testified.
Amanda testified that during the criminal investigation and the pendency of the charges against Daniel, she believed that she was under the protection of a no-contact order in the criminal case. She believed that Daniel's acquittal would remove this protection. She testified that a protection order is necessary to keep her safe.
Amanda testified she feared retaliation for reporting the sexual assault. She believed Daniel, his family, and other members of their community blamed her for the criminal charges. However, she stated that "[i]t's only [Daniel] that I think is going to try to do anything to me." She testified that in January 2019, Daniel told her she was not to tell people what he had done to her "[b]ecause it could be misconstrued and then people might have bad opinions about him, or he would think that I was dragging his name through the mud."
Amanda testified that she did not resist some of Daniel's sexual touching during their relationship because Daniel consistently carried a gun and knife. Amanda did not always resist Daniel when he undressed her and touched her sexually during their relationship, but "[o]nly to the point that it kept [her] from being hurt." When he would "push the boundaries," Amanda sometimes allowed touching she did not want because Daniel told her that "anything that's seen with me resisting can be viewed as a threat." She stated that this meant that if Daniel perceived her as a threat, "he will defend himself and I could get hurt." At other times, he would touch her further than she wanted even if she was "still saying no."
After the hearing, the district court ordered the protection order to remain in effect for 1 year from May 26, 2022. At the end of the hearing, the court had addressed arguments made by the parties and explained the basis of its decision. The court stated that it had reviewed the sexual assault protection order statute and concluded that under § 28-311.11, "the only finding that the Court is required to make" to continue the ex parte order was whether a sexual assault had occurred. The court rejected Daniel's argument that, under the statute, evidence of the risk of future harm was relevant to the outcome.
The court stated that it found Amanda's testimony and statements to be credible and noted there was no other evidence offered suggesting the events did not occur. The court found that Amanda had shown by a preponderance of the evidence that Daniel subjected her to sexual contact or penetration without her consent and continued the sexual assault protection order under § 28-311.11.
Daniel appeals.
Daniel assigns, summarized and restated, that the district court erred as a matter of law when it concluded that the risk of future harm was not relevant to the continuance of a sexual assault protection order under § 28-311.11. Daniel also claims that applying the correct standard, the district court's order was not supported by sufficient evidence.
Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Mollring v. Nebraska Dept. of Health & Human Servs., ante p. 251, 983 N.W.2d 536 (2023). A protection order is analogous to an injunction. Yerania O. v. Juan P. , 310 Neb. 749, 969 N.W.2d 121 (2022). Ordinarily, the grant or denial of a protection order is reviewed de novo on the record. Id. In such de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. Id. Witness credibility and the weight to be given a witness’ testimony are questions for the trier of fact. Malousek v. Meyer , 309 Neb. 803, 962 N.W.2d 676 (2021).
Section 28-311.11, providing for sexual assault protection orders, became effective on August 24, 2017. The appellate courts have concluded that as an element of proof at a contested hearing, "a party seeking a sexual assault protection order pursuant to § 28-311.11 must prove a sexual assault offense by a preponderance of the evidence." S.B. v. Pfeifler , 26 Neb. App. 448, 456, 920 N.W.2d 851, 856-57 (2018). That is, the finding of a sexual assault has been deemed necessary. However, this court has not previously had the opportunity to consider whether additional evidence, and in particular evidence of the risk of future harm, is relevant under § 28-311.11 to continue or rescind a sexual assault protection order. We now consider this issue and conclude that such evidence presented by either party is relevant.
In this case, the district court concluded that a finding of sexual assault is "the only finding that the Court is required to make" under § 28-311.11 and further that "[t]he need for [a] protection order maybe is assumed by the [L]egislature." As explained below, we believe that the...
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