Opinion
2 CA-CV 2023-0067
09-18-2023
Theresa Handley, Petitioner/Appellee, v. Aundrae Kinte Harris, Respondent/Appellant.
Theresa Handley In Propria Persona Aundrae K. Harris, Tempe In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FN2022094374 The Honorable Harriet M. Bernick, Judge Pro Tempore
Theresa Handley In Propria Persona
Aundrae K. Harris, Tempe In Propria Persona
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, Vice Chief Judge
¶1 Aundrae Harris appeals from the trial court's order affirming an order of protection entered against him in favor of his former romantic partner, Theresa Handley. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In December 2022, Handley petitioned the Maricopa County Superior Court for an ex parte order of protection against Harris. In support of her petition, Handley cited incidents during which Harris had become angry with her, yelled at her using "hostile and foul language," locked her inside of his car, grabbed and ripped the collar of her shirt while attempting to prevent her from getting out of the car, slapped her arm, and sent threatening text messages. The same day, the court issued an ex parte order of protection prohibiting Harris from having any contact with Handley.
¶3 Harris requested a hearing on Handley's order of protection. The trial court held the hearing in February 2023, after which the court affirmed the order of protection, finding by "a preponderance of the evidence that there is reasonable cause to believe that [Harris] has committed an act of domestic violence, kidnapping, within the last year" by knowingly restraining Handley with the intent to place her in reasonable apprehension of imminent physical injury pursuant to A.R.S. § 13-1304. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(5)(b), and Rule 42(a)(2), Ariz. R. Protective Order P.
Discussion
I. Sufficiency of the Evidence
¶4 On appeal, Harris argues the trial court erred in affirming the order of protection because Handley failed to show by a preponderance of evidence that he had committed an act of domestic violence against her. We review a court's decision to affirm an order of protection for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, ¶ 16 (App. 2012). A court abuses its discretion by making "an error of law in reaching a discretionary conclusion or 'when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision.'" Savord v. Morton, 235 Ariz. 256, ¶ 10 (App. 2014) (quoting Mahar v. Acuna, 230 Ariz. 530, ¶ 14 (App. 2012)).
¶5 For a contested order of protection to remain in effect, the plaintiff must prove by a preponderance of the evidence that "[t]he defendant may commit an act of domestic violence" or "has committed an act of domestic violence within the past year." A.R.S. § 13-3602(E); Ariz. R. Protective Order P. 38(g)(3). Harris contends Handley failed to present any evidence establishing the alleged acts of domestic violence had occurred "[o]ther than her [own] testimony in a hearing where she . . . committed acts of perjury." In so arguing, Harris points to several statements Handley made during the hearing that he asserts are untrue, including that criminal charges had been filed against him and that he had threatened a police officer. Additionally, he asserts the trial court disregarded exhibits "provid[ing Handley's] admission of dishonesty" and failed to consider her "lack of credibility" in "determining the outcome."
¶6 Handley testified that on December 26, 2022, Harris had "physical[ly] assault[ed]" her, "held [her] against [her] will," and "threatened [her] safety." Specifically, she testified that when she and Harris had sat down inside his truck to have a conversation, "he locked the doors and he stated that [she] better not say a word and he wasn't letting [her] go until he was finished with [her]." She also stated that he had started yelling and hitting the steering wheel and car door, adding that she was "terrified" because "[h]is veins were popping out" and the "look on his face was rage." Handley continued that when she had reached over to manually unlock the door, Harris grabbed the collar of her shirt, "wrapped it around his hand," and "choked [her] with it until it ripped." Further, she explained, Harris had "pulled [her] down into the seat . . . because [she] was trying to get out" and "told [her she] wasn't going anywhere" before eventually allowing her to go back inside her house.
¶7 Contrary to Harris's argument, Handley's testimony constitutes sufficient evidence from which the trial court could reasonably conclude Harris had committed an act of domestic violence, specifically, kidnapping. See § 13-1304(A)(4) ("A person commits kidnapping by knowingly restraining another person with the intent" to place the victim in "reasonable apprehension of imminent physical injury."); A.R.S. § 13-3601 ("an offense prescribed in . . . [§] 13-1304" is domestic violence); cf. Ryan v. S.F. Peaks Trucking Co., 228 Ariz. 42, ¶ 29 (App. 2011) ("'[T]estimony' is defined as '[e]vidence that a competent witness under oath or affirmation gives at a trial or in an affidavit or deposition.'" (quoting Black's Law Dictionary 1514 (8th ed. 2004))). Although Harris denied committing any such acts and presented conflicting evidence, as well as evidence intended to impeach Handley's credibility, "we defer to the trial court's superior position to weigh the evidence, make credibility determinations, and resolve conflicts in facts." Great W. Bank v. LJC Dev., LLC, 238 Ariz. 470, ¶ 42 (App. 2015). Further, we do not redetermine the preponderance of the evidence, Hurd v. Hurd, 223 Ariz. 48, ¶ 16 (App. 2009), and we presume the court considered all evidence before it, Fuentes v. Fuentes, 209 Ariz. 51, ¶ 18 (App. 2004). As such, we cannot conclude the court abused its discretion in finding by a preponderance of the evidence that Harris had committed an act of domestic violence. See Cardoso, 230 Ariz. 614, ¶ 16.
II. Improper Admission of Evidence
¶8 Harris also argues the trial court erred in admitting into evidence a photograph of a shirt Handley claimed she had been wearing during the December 26 incident. In a contested hearing regarding an order of protection, relevant evidence is admissible, but the court may exclude such evidence if its probative value is substantially outweighed by a danger of "unfair prejudice, confusing the issues, undue delay, wasting time, needlessly presenting cumulative evidence, or lack of reliability." Ariz. R. Protective Order P. 36(a). "A trial court has broad discretion in admitting or excluding evidence, and we will not disturb its decision absent a clear abuse of its discretion and resulting prejudice." Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 19 (App. 2005); Ariz. R. Protective Order P. 36(a) cmt. (court has broad discretion in "determining whether proffered evidence is admissible in any individual protective order hearing").
¶9 At the hearing on the order of protection, Handley moved to admit a photograph of "the shirt that [she] was wearing on the December 26th incident when [Harris] strangled [her] with [her] shirt when [she] was trying to get out of the car." Handley testified that she had taken the photograph the night the incident occurred and that it showed the shirt's torn and "stretched out" collar, which ripped when Harris "pulled [her] back down into the seat while choking [her]." Harris objected to admission of the photograph, arguing the incident had never occurred and it was "impossible to tell if the shirt is actually hers or not." The trial court allowed Handley to provide additional foundation, and she again testified the shirt was hers and she had been wearing it "all day" on December 26. The court admitted the photograph.
Handley produced the shirt at the hearing, but the court declined to admit it into evidence.
¶10 Harris asserts the photograph was inadmissible because "[t]here is no evidence supporting this shirt was worn" on the day in question and, because the shirt's tags had been removed and the photograph showed only the top portion of the shirt, it was "impossible to determine if the shirt" belonged to Handley. He also appears to contend the photograph was inadmissible because it lacked reliability, but, as he acknowledges, Handley testified she had been wearing it during the December 26 incident. See State v. Maximo, 170 Ariz. 94, 97 (App. 1991) ("A proponent of evidence may satisfy foundation requirements with the identification testimony of a witness who has knowledge of the exhibit."); Michaelson v. Garr, 234 Ariz. 542, ¶ 9 (App. 2014) (lack of positive identification goes to weight of evidence, not admissibility). Here, given Handley's testimony concerning the shirt, the trial court acted within its discretion in admitting the photograph. See Lashonda M., 210 Ariz. 77, ¶ 19.
III. Extended Time to Present Evidence
¶11 Finally, Harris asserts the trial court failed to provide sufficient "time" and "opportunity" for him to present his testimony during the hearing given his "severe speech impediment and disability." When both parties appear for a contested order of protection hearing, "[t]he judicial officer must ensure that both parties have an opportunity to be heard, to present evidence, and to call and examine and cross-examine witnesses." Ariz. R. Protective Order P. 38(g)(1). A court generally has broad discretion over the management of its own docket, Findlay v. Lewis, 172 Ariz. 343, 346 (1992), and may impose reasonable time limits on court proceedings, Brown v. U.S. Fid. &Guar. Co., 194 Ariz. 85, ¶ 29 (App. 1998); Ariz. R. Civ. P. 16(j); see also Ariz. R. Protective Order P. 2 (rules of civil procedure apply when not inconsistent with protective order rules). We review the court's enforcement of such a time limit for an abuse of discretion and will not reverse unless Harris also demonstrates he suffered resulting harm. See Brown, 194 Ariz. 85, ¶ 30.
¶12 Before the hearing, Harris requested "extended time" to present evidence based on his disability. The trial court granted Harris's motion, noting it would provide him additional time to present his case.The court explained each party would have five minutes to give an opening statement and twenty minutes to "present their case," noting it "usually keep[s] very close time of . . . the 20 minutes." The court continued it was "more than willing to be accommodating" because it was aware Harris "does struggle," and it wanted him to feel comfortable and safe and to make clear it was going to give him sufficient time. The court stated that although parties normally only get twenty minutes to question the other party and present testimony, it would give Harris and Handley thirty minutes each. It also reminded the parties to "us[e their] time wisely."
Although Harris asserts on appeal that he requested and was denied extended time four times, the record does not support this assertion.
¶13 After Harris began presenting testimony, he repeatedly expressed concern about having enough time to present his evidence, and the court responded that Harris kept "interrupting what's happening to tell [it he had] no time." Harris attempted to introduce several unlabeled exhibits, including a text message conversation "showing the nature and the context of the relationship" he had with Handley before December 26. The court explained Harris was attempting to present evidence that had no direct relevance to the order of protection and suggested he "focus on the incident that occurred." After thirty minutes, Harris informed the court he needed approximately "five . . . minutes," and the court stated it would allow him the "five minutes and that's it." Harris began to cross-examine Handley about a statement she had made on December 26 regarding her relationship with another man, and the court again reminded him to "focus on what's important." After approximately five minutes, the court stopped Harris's cross-examination of Handley and informed him he had used all of his time. The court subsequently affirmed the order of protection, finding Harris had "failed to address the kidnapping allegations after the court repeatedly informed him that it needed to hear evidence regarding . . . the incident in question."
¶14 Harris contends he was "denied the ability to finish [his] statements," and "[w]hen it was [his] turn to speak, [he] was often interrupted" by Handley and the trial court itself. Further, he asserts, the court "allowed [Handley] to repeatedly speak during [his] testimony" without first objecting, "which further shortened [his] time." Accordingly, Harris argues, the lack of "time/opportunity to present [his] testimony would have affected the outcome" of the case because "there was . . . no evidence to support a criminal act occurred."
¶15 Harris largely fails to cite pertinent legal authority supporting his argument that he was entitled to additional time to present evidence. See Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must include argument consisting of "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities"). This rule applies to pro se appellants as well as those represented by counsel. See Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, ¶ 16 (App. 2000) (parties who conduct case without attorney entitled to same consideration and held to same standards as those represented by counsel). We therefore conclude Harris has waived his argument on appeal. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (appellant waives claims by failing to provide "an argument supported by authority in his opening brief").
¶16 However, even were we to address Harris's argument on its merits, we could not say the trial court abused its discretion in imposing a time limit on Harris's presentation of evidence. The record shows the court gave Harris approximately thirty-five minutes to present his case and, as the court noted, he chose to spend most of his time testifying and crossexamining Handley concerning irrelevant matters. Moreover, Harris fails to identify any specific evidence he was prevented from presenting and does not meaningfully develop an argument that the order of protection would not have been affirmed absent enforcement of the time limit. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007) (insufficient argument waives review of claim). Thus, reversal is not warranted. See Brown, 194 Ariz. 85, ¶ 30.
Disposition
¶17 For the foregoing reasons, we affirm.