Powell v. Fraczek

• Decision Date: 22 March 2021
• Docket Number: No. 81237-8-I
• Citation: Powell v. Fraczek, No. 81237-8-I (Wash. App. Mar 22, 2021)
• Court: Washington Court of Appeals
• Parties: NATASHA MARIE POWELL, Appellant, v. THOMASZ MARK FRACZEK, Respondent.

NATASHA MARIE POWELL, Appellant, v. THOMASZ MARK FRACZEK, Respondent.

No. 81237-8-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

March 22, 2021

UNPUBLISHED OPINION

DWYER, J. — Natasha Powell appeals from the superior court's order denying her petition for a domestic violence protection order. Powell and amici raise numerous arguments on appeal. These include allegations that the superior court erred by (1) not making certain findings of fact that Powell claims were supported by substantial evidence, (2) misapplying Washington law regarding the requirements for when a domestic violence protection order shall issue, (3) failing to make a finding as to whether Powell had the capacity to consent, (4) considering evidence in violation of Washington's "rape shield" laws, (5) basing its decision on text messages that were unauthenticated, and (6) considering text messages that merely served to humiliate and embarrass Powell, denying her meaningful access to justice. Because Powell does not establish an entitlement to relief on any of these claims, we affirm.

I

Natasha Powell and Thomasz Fraczek were graduate students at the University of Washington. On April 3, 2019, Powell initiated a Title IX¹ complaint through the university, alleging that Fraczek had sexually assaulted her on March 17, 2019. In an initial order dated June 17, 2019, a Title IX investigator concluded that Fraczek did not sexually assault Powell. Powell requested administrative review of the initial order and, on July 29, a Title IX panel affirmed the order.

On September 23, 2019, Powell filed a petition for a domestic violence protection order in the King County Superior Court. In the petition, Powell alleged that Fraczek sexually assaulted her on three separate occasions. Powell also requested a temporary order of protection to remain in effect until a hearing was held on her petition. A court commissioner granted Powell's ex parte request for a temporary order of protection. On October 21, a court commissioner conducted an adversarial hearing on the matter and granted Powell's petition for an order of protection. The order stated that it would remain in effect "for at least" four years. Fraczek subsequently filed a motion for revision.

On January 16, 2020, the superior court heard the motion for revision. During the hearing, the superior court found that Fraczek had neither sexually assaulted Powell nor inflicted upon Powell a fear of imminent physical harm. The court's oral ruling was followed by the entry of three separate written orders that(1) granted Fraczek's motion for revision, (2) rescinded the domestic violence protection order that was entered by the commissioner, and (3) denied Powell's petition for a domestic violence protection order. On January 27, Powell filed a motion for reconsideration. The superior court denied this motion.

Powell appeals.

II

A

Where, as here, "the superior court makes a decision on revision, 'the appeal is from the superior court's decision, not the commissioner's.'" State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004) (quoting State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003)).

Chapter 26.50 RCW authorizes the issuance of a protection order if the party seeking it alleges "the existence of domestic violence, and . . . [declares] the specific facts and circumstances from which relief is sought." RCW 26.50.030(1). Domestic violence is defined, in relevant part, as "[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, sexual assault, or stalking . . . of one intimate partner by another intimate partner." RCW 26.50.010(3). Because an order of protection is a civil remedy, the petitioner must establish its propriety by a preponderance of the evidence.²

The superior court's "decision to grant or deny a domestic violence protection order is reviewed for an abuse of discretion." Maldonado v. Maldonado, 197 Wn. App. 779, 789, 391 P.3d 546 (2017). "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).

When a superior court makes findings of fact, those findings are "verities on appeal" when they are "supported by substantial evidence." Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992). "Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978). "Where written findings of fact are incomplete, we may rely on the trial court's oral findings for purposes of review." State v. Robertson, 88 Wn. App. 836, 843, 947 P.2d 765 (1997).

Moreover, "[w]here there is conflicting evidence, it is not the role of the appellate court to weigh and evaluate the evidence." Burnside v. Simpson Paper Co., 66 Wn. App. 510, 526, 832 P.2d 537 (1992), aff'd, 123 Wn.2d 93, 864 P.2d 937 (1994). Rather, our "role is simply to determine whether substantial evidence supports the findings of fact and, if so, 'whether the findings in turn support the trial court's conclusions of law.'" Greene v. Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999) (quoting Org. to Preserve Agric. Lands v. Adams County, 128 Wn.2d 869, 882, 913 P.2d 793 (1996)). Moreover, "[q]uestions of credibility are left to the trier of fact and will not be overturned on appeal." Statev. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998). "Although the trier of fact is free to believe or disbelieve any evidence presented at trial, '[a]ppellate courts do not hear or weigh evidence, find facts, or substitute their opinions for those of the trier-of-fact.'" Yorkston v. Whatcom County, 11 Wn. App. 2d 815, 831, 461 P.3d 392 (alteration in original) (quoting Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009)), review denied, 195 Wn.2d 1020 (2020). In conducting our review, we view the evidence in the light most favorable to the prevailing party. Scott's Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wn. App. 335, 342, 308 P.3d 791 (2013).

B

The predicate of Powell's petition for a domestic violence protection order was that Fraczek engaged in one or more acts of domestic violence. Specifically, Powell alleged that Fraczek sexually assaulted her on three separate occasions: first on October 20, 2018, then on January 11, 2019, and again on March 17, 2019. Additionally, Powell's declaration asserted that Fraczek "has demonstrated a lack of boundaries that leaves me fearful for what he will do next. I am afraid for my life every time I am anywhere near the University of Washington."

By a written order entered on January 16, 2020, the superior court denied Powell's petition, concluding that "[a] preponderance of the evidence has not established that there is domestic violence." This conclusion of law was supported by the superior court's findings of fact, which were entered followingthe hearing on Fraczek's motion for revision. In particular, the superior court found that Fraczek did not sexually assault Powell:

I do not find that there was a sexual assault. I think that there was consent. The two of you certainly did some drinking together. Maybe you had more than he did. But the declarations that I reviewed from folks that were with you, up to the point where you were alone together and being intimate, do not support the issuance of a protection order.

Furthermore, the superior court found that Fraczek did not inflict on Powell a fear of imminent physical harm:

I do not find that your fear of . . . Mr. Fraczek is one that is based upon a rational belief that he is going -- that you are in fear of imminent physical harm. What I see is a man that probably does not want to have contact with you. . . . I do not believe that he has any interest in having anything, frankly, to do with you.

Because these findings of fact are supported by substantial evidence, we consider them to be verities on appeal.³

C

The superior court's finding that Fraczek did not sexually assault Powell on October 20, 2018, is supported by substantial evidence. On that day, Fraczek and Powell attended a football game together at the University of Washington. Before the game started, Fraczek and Powell purchased "a pack of Coors" and drank "some of the beers." After the game ended, Fraczek, Powell, and two other individuals—Remy Margerum and Emily Brown—went to a bar to get food and drinks.

Fraczek's declaration provided that, while the four were having dinner, Powell put "her hand between [Fraczek's] legs and had rubbed [his] penis till [he] was hard." The group then went to another bar where they consumed more alcohol. At that bar, Powell "touch[ed] [Fraczek] under the table." The group ultimately decided to go to a different bar to dance. While there, Powell and Fraczek "ma[de] out passionately."

According to Fraczek, Powell told him "that she wanted Emily, Remy and [Fraczek] to all come back to her place so [they] could have a foursome." Powell "claimed Emily had suggested the idea and she said she was super into it." The group went to Powell's house where Remy and Brown "ma[de] out" and Powell and Fraczek "ma[de] out."

Powell and Fraczek subsequently went into Powell's bedroom. According to Margerum, Powell "appear[ed] to go willingly." Fraczek recollected that, once they were inside Powell's bedroom, they started "making out, fondling, and giving oral." Additionally, Powell "kept saying things like 'oh god I want to fuck you' and ask[ed] [Fraczek] to see if Remy or Emily had a condom." Fraczek exited the bedroom and asked Margerum and Brown whether either of them had a condom. Neither Brown nor Margerum had a condom. Then, according to Fraczek, he and Powell "ended up having unprotected sex" and he "tr[ied] to pull out only to have her grab [him] with both her legs and arms and pull [him] in."

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