Opinion
No. 1 CA-CV 17-0441 FC
03-27-2018
In re the Matter of: VIRGINIA YVONNE GILCHRIST, Petitioner/Appellee, v. BENJAMIN HENRY JENSEN, Respondent/Appellant.
COUNSEL Virginia Yvonne Gilchrist, Mesa Petitioner/Appellee Benjamin Henry Jensen, Apache Junction Respondent/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. FN2017-092365
The Honorable Richard J. Hinz, Judge Pro Tempore
AFFIRMED
COUNSEL
Virginia Yvonne Gilchrist, Mesa
Petitioner/Appellee
Benjamin Henry Jensen, Apache Junction
Respondent/Appellant
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.
CRUZ, Judge:
¶1 Benjamin Henry Jensen challenges the superior court's order confirming Virginia Yvonne Gilchrist's order of protection. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 On the night of May 19 and the morning of May 20, 2017, police were called to the residence of Gilchrist for a domestic disturbance between Gilchrist, Jensen, and Gilchrist's grandson, J.J.—Jensen's nephew. Gilchrist owned the property, Jensen lived in a trailer on the property, and the grandson was visiting.
¶3 Based on the domestic dispute, Jensen obtained an order of protection against J.J. on May 30, 2017. Gilchrist petitioned for an order of protection on June 7, 2017. Gilchrist claimed Jensen physically assaulted her and her grandson while under the influence of alcohol, verbally assaulted them, threatened to burn down her house while her animals were inside, and threw a beer bottle at her. A hearing was set for June 23.
¶4 Both Gilchrist and Jensen testified at the order of protection hearing. Gilchrist discussed two separate incidents of domestic violence. In the first, Gilchrist testified regarding the physical altercation that occurred on May 19-20, and testified to another instance on August 10, 2016, when Jensen threw a beer bottle at her head and threatened to burn down her house. As to the first incident, Gilchrist testified that Jensen physically assaulted her and her grandson due to a dispute over Chinese food. Gilchrist testified that Jensen verbally assaulted J.J., poured beer on them, and then physically assaulted the grandson, leaving a cut on his arm. Gilchrist then attempted to intervene, at which point she testified that Jensen pushed her down. J.J. then hit Jensen over the head with a table leg, resulting in Jensen ceasing the assault and calling the police. As to the incident on August 10, Gilchrist testified that Jensen became upset regarding a dispute over Gilchrist's car needing service. Gilchrist testified
that Jensen became agitated, threw a beer bottle at her head, missing her by inches, and threatened to burn down her house with her and her dogs inside. Gilchrist submitted medical and photo evidence of her injuries and also presented a video showing Jensen verbally assaulting J.J. while under the influence of alcohol, purportedly taken the night of the physical altercation on May 19.
¶5 Jensen testified that Gilchrist and the grandson set him up to be attacked, and that he was only acting in self-defense during the altercation with the grandson. Jensen testified he bumped into Gilchrist only as a result of the grandson hitting him. Jensen testified he never threw a bottle at Gilchrist, and never threatened to burn down her house. Jensen presented criminal records identifying J.J. as the suspect, and Jensen as the victim.
¶6 The superior court confirmed the order of protection, finding Gilchrist proved by a preponderance of the evidence that Jensen committed domestic violence against her through his disorderly conduct and harassment. Jensen timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).
DISCUSSION
¶7 "We review an order of protection for an abuse of discretion." Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014). The court abuses its discretion if it makes an error of law or fact, or if the record, viewed in the light most favorable to affirming its decision, is devoid of competent evidence. Id.
¶8 At the order of protection hearing, Gilchrist testified that Jensen physically pushed her on one occasion, and threw a beer bottle at her head on another. Gilchrist provided a picture of the bruise she received when she fell to the ground as Jensen pushed her, and stated that Jensen has a drinking problem. In addition, Gilchrist submitted a video purporting to show Jensen under the influence of alcohol verbally abusing Gilchrist's grandson. Jensen testified that he never threw a beer bottle at his mother's head, and that he only bumped into her as he was attempting to defend himself from being attacked by J.J.
¶9 Given the evidence, we cannot say the court abused its discretion in granting the order of protection based on Jensen's disorderly conduct and harassment. See A.R.S. §§ 13-3602 (providing procedure for obtaining order of protection), -3601 (defining domestic violence to include . . .), -2904 (disorderly conduct), and -2921 (harassment).
CONCLUSION
¶10 For the foregoing reasons, we affirm the court's order confirming the order of protection against Jensen.