*1
Mark SIMMONS v.
DIXON
Angie
CA 05-1398
Court of of Arkansas Appeals 4, 2006 delivered October Opinion denied November [Rehearing 1, 2006.*] P.A., Harris, Harris, Hoskins & W. by: appellant. James Inc., Walker, Arkansas, Aid Legal Andrea by: appellee. Mark Simmons Judge. Appellant trial appeals Sam Bird, court’s order entry him after his filed a ex-girlfriend, appellee Angie based on that Simmons had threatened her and allegations her dog. On Simmons contends that the court’s trial decision was appeal, both an error of law and was the evidence. We affirm. unsupported by
* Roaf,J., grant rehearing. would filed a “Petition for Order On September *2 and “an behalf of herself adjudicated incompe- of Protection” on had that Simmons name is Mojo,” alleging tent whose Dog person text in which abuse messages committed domestic by sending also kill her to harm her and to dog. petition threatened Dixon and on had been “beating that Simmons “cussing” alleged Furthermore, an incident at Sonic. car” during [her] and called Dixon’s that Simmons employment alleged comments about Dixon. made derogatory 30, 2005, testified that held on Dixon At a hearing September lived for months and that she she was Simmons’s girlfriend eighteen time, that, those months. She claimed with him for fifteen of during that became abusive when he drank. She said Simmons physically come out” and that he “when he drunk a streak would got jealousy out of would “push pull places.” [her] [her] filed Dixon further testified of protection 2005, in after an incident at claiming Big Daddy’s nightclub June called her a “whore.” walked in while she was Simmons dancing her on the dance floor. said that he while she was She pushed a that she Dixon also described series of messages received claimed that she received the mes- from Simmons. She 22, 2005, 22, from to 2005. sages period May during April called her a these Simmons According messages, threatened to kill her whore” and dog. “lying that the until Dixon reason she waited explained to file the for a order was because she was 2005 date, and the Sheriffs County waiting Mississippi had never received faxed Department copy police report that, “in and in claimed since the that she made She May.” April “incidents back in other incidents with Simmons May,”1 said were remarks” and “the She “catty flipping finger.” house, that if she was to someone’s he would scream out walking off.” She that this was “not obscenities agreed really “flip [her] a clear and harm” and said that she danger “just present alone, him to leave his comments [himself,] keep want[ed] [her] that the last time the two She said keep finger [himself].” 18, went out on a date was March 2005. together describing here. In Dixon’s event, We are uncertain asto which incidents Dixon is messages during was that she received text from Simmons from April testimony period Big nightclub and that an incident at occurred in 2005. Daddy’s May June denied “beat her car.” Dixon She stating car,
claimed that officers asked her if he touched she said that he “shook it.” She said that she was “confused.” said that She she went to the after the incident at and was police Big Daddy’s “afraid” because Simmons said his text that “if he me out ... he me and ... would find caught whip my [would] dead in my backyard.”
Simmons also testified at the He claimed that he had hearing. with Dixon from October 2003 to March 2005 and relationship lived five to six months” they together “roughly during the time that were He said that the last time he dating. spoke was in 2005 when she walked to him at the up June Inn (where Holiday located) Big Daddy’s nightclub “started He said that she then went to the dance cussing [him].” *3 floor and told some friends “some stuff that wasn’t true.” He said that he went to “confront” her on the dance floor and that she did, him. When she he “went to her hands down” and pushed slap her current in the middle of it.” Simmons boyfriend “jumped stated that the bouncers at the club asked Dixon and her boyfriend leave, to and that he had not had contact with Dixon since. He any denied abuse any with Dixon and physical during relationship said that he “never touched her.” He claimed that he specifically had never hit a woman. He that he Dixon’s explained slapped hands down at her from him. He said Big Daddy’s keep hitting that he contacted her 2005 to employment about whether she had a him. inquire restraining against Simmons admitted to when he and sending messages Dixon first broke because “she was up she was telling people make lose and that beat her and going job [him] [his] [he] Simmons also admitted that he threatened everything.” to kill Dixon’s but never did so. He that he dog, explained bought for her and would never hurt the He said he told Dixon dog. her, that if she that he beat he kept would. He telling people that she knew that he did not mean what he was opined saying the text because “never followed with it” and through it was “four or five months later before she worried about it.” the court stated as follows: Following hearing, follow, All Thank I havea sheetthatI right. you. it’staken from the direcdy Arkansascode as to the requirements issuanceof an Order of Protection. And has basicallyeverything been met the one except contentionasto whether or not point harm, assault,so either forth. bodily injury, there has been physical And those is the infliction of one of requirements harm or assault. physical Defendant admitted that he made a text message this,I to beat if don’t am saying, you telling going your quit people
— her into da da da. And that was intended scare quit him. And that is the element that’s bad-mouthing required [sic] the issuanceof an Order of Protection. It’s the infliction of fear of assault. physical
So the Order of Protection is issued. It will December expire the 31st of 2006. The fees is request payment attorney denied. two First he claims presents arguments appeal.
that “under reasonable enact- legislative interpretation ments orders the made Ms. relating allegations Dixon do not cause rise to valid of action Mr. give Second, Simmons.” he asserts that “even ifMs. Dixon’s allegations set forth in her could be considered sufficient to remotely come within the statutes the evidence that was applicable pre- sented was not sufficient to meet her burden of simply proof.” Actions
Whether Simmons’s Fell Within Parameters Statutory Simmons first that we should reverse the trial court’s argues decision because his actions did not fall within “completely *4 words” of the statutes orders. Orders of relating are The Domestic Abuse Act of protection governed by — codified as Ark. Ann. Code 9-15-101 9-15-303 2002 (Repl. § the of the Act 2005) Act). is Supp. (collectively, “to an mechanism the State of Arkansas provide whereby adequate health, welfare, can the of its citizens protect general safety by when abuse of a member of a household another intervening by occur, member of a household occurs or is threatened to thus further violence.” Ark. Code Ann. 9-15-101 preventing (Repl. § harm, The Act defines domestic abuse as 2002). “[p]hysical assault, harm, the infliction or injury, physical or assault between or household bodily injury, family members[.]” Act, Ark. Ann. 2002). Code Under the 9-15-103(a)(l) (Repl. § for relief “shall the existence of domestic abuse and petition allege shall be an affidavit made under oath the accompanied by stating facts and circumstances of the domestic abuse the
specific Ann. relief Ark. Code 9-15-201(e) sought.” (Repl. specific § of relief in A circuit court 2002). may provide following types to such a response petition:
(1) Exclude the from which abusingparty dwelling parties victim; share or from the residence of the or petitioner (2) Exclude the from the of businessor em- abusing party school, victim; or other location of the or ployment, petitioner (6) Prohibit the or an abusing directly from party through agent or victim under
contacting con- petitioner except specific order; ditions named in the (7) Order other relief as the (A) such court deems or necessary or household member. appropriate family include,but to, The relief not be limited (B) may enjoining do, from restraining abusing party doing, attempting to do act threatening any or harass- injuring, mistreating,molesting, ing petitioner....
Ark. Code Ann. 9-15-205(a) 2002). (Repl. § that, out in the for the order of points excluded Simmons be from an protection, requested that neither of them and that Simmons be apartment occupied excluded from a bar in and Dixon also asked the court Blytheville, Simmons claims that “none of those protect dog Mojo. fit within of relief authorized A.C.A. requests any types by 9-15-205.” We note that this was not raised below and argument that Simmons is therefore it from See precluded raising appeal. Co., v. Diamond & 362 Ark. 207 S.W.3d Equip. Supply Jordan Even were we to (2005). address we would also argument, note that the trial court did not relief grant requested except extent that Simmons was “excluded from the residence occu- Petitioner either at the address shown in the pied [Dixon] ... or at other residence in which the petitioner children be This relief was may present.” clearly permitted [sic] *5 statute, the under of whether Dixon’s indicated regardless an incorrect address. We therefore fail to see how Simmons was
265 relief; result, Dixon’s as a we could not prejudiced by requests Crowder, 268, reverse See Pablo v. 95 Ark. 236 point. App. S.W.3d that this court will not reverse in (2006) (recognizing the absence a demonstration of prejudice). further asserts that there was no evidence that
Dixon suffered at the hands of Simmons and that bodily injury Dixon’s fear of harm ‘imminent’ related to “only [Simmons’s] and to the threats name-calling alleged bought [Simmons’s] her while were involved.” Simmons claims that intimately the did not intend the order scheme to legislature apply that, based on her own family Dixon was pets, testimony, rather, afraid never for her she wanted safety; personal Furthermore, Simmons to her names. Simmons claims quit calling that, because Dixon waited four months to file the she petition, reasons, in was not fear of “imminent” harm. For these he argues that Dixon’s “do not allegations come within what squarely statute prohibits We guard against.” disagree. purports ere,
FI it is clear that the court trial did not relief based grant on Simmons’s threats to the but rather his threats to “beat” dog, Moreover, Dixon herself. Dixon’s came within the allegations because, broad of the Act parameters she waited four although case, months to file the in this fear “imminent” harm at the time that Simmons threatened her. Weiss, 543,
In River Transmission v. Ark. Mississippi Corp. 65 S.W.3d 872-73 our (2002), stated as supreme follows: novo,
We review of statutory issues de as it is for interpretation this court to decide what a statute means. In this we are not respect, decision; however, bound the trial court’s in the absence aof erred, trial court be showing will interpretation accepted as correct on The first rule in appeal. considering meaning reads, effect of a statute is to construe it just as it giving words their ordinary usually meaning common accepted language.
When the statute is there language plain unambiguous, is no need resort rules of construction. When statutory clear, statute, is not we to the meaning look language matter, subject the object to be to be accomplished, served, the remedy provided, other legislative history, *6 rule of on the basic subject. that shedlight means appropriate of the to effectto the intent General is statutory give construction Assembly.
(Citations omitted.) section 9-15-103 includes Annotated
Arkansas Code
as a
of
harm”
form
of fear of imminent physical
“the infliction
case,
Dixon was in
shows that
abuse. In this
the evidence
domestic
of
the broad
harm as
purpose
fear of “imminent”
contemplated
—
to Webster’s
to
domestic violence. According
the Act
prevent
to
at
moment”
occur
any
“imminent” means “likely
Dictionary,
CTb
RandomHouse Webster’sCollegeDictionary
or
See
“impending.”
Here,
was “afraid” when Simmons
claimed that she
(1996).
the
This
fell within
clearly
sent the threatening
messages.
—
the statute
“imminent” meaning “likely
broad
of
parameters
at
time of the
or
the
alleged
occur at
moment”
“impending”
abuse,
order.
the
the
not at
time of filing
protective
abuse,
statute,
we
the
domestic
Given the
of
prevent
In
other
see how the statute could be interpreted any
way.
cannot
out,
addition,
itself
the denial of
Act
as Dixon
the
points
prohibits
the
of time between
an
of
based
on
amount
order
solely
Ark.
Ann.
the
abuse
the
of the
See
Code
filing
petition.
alleged
that a circuit court shall not deny
2002)
9-15-214 (Repl.
(stating
§
a
act
the
of domestic or family
relief
because
“solely
petitioner
the
did
occur within one
and the
of
not
violence
filing
waited four
The fact that Dixon
hundred twenty (120) days”).
Thus, the trial
file
is not a basis for reversal.
months to
the order
the
did not err
of
statute.
court
interpretation
the
Decision
the Evidenceto
TrialCourt’s
Sufficiency
Support
of
the
Protection
to Issue Orderof
that the evidence is insufficient
claim
Simmons’s
Regarding
case,
are
the
trial court’s decision
arguments
support
addressed above. Essen-
same as for
first
apparently
point
did not meet
is
that his actions
arguing
tially,
and,
issuance
statutory requirements
thus,
to issue such
there
insufficient evidence
the court
trials, of review on
is not
an
In bench
standard
appeal
order.
is
whether there
substantial evidence
finding
support
court,
were
erroneous
but whether the judge’s findings
clearly
evidence;
is
clearly
preponderance
when,
it,
there
erroneous
is evidence
although
support
is
with
the entire evidence
left
a definite
reviewing
and firm
that a
has
conviction
mistake
been committed. Chaversv.
352 Ark.
Here, we not are left with a firm conviction that a admitted mistake was made. Simmons text threatening sending and Dixon she claimed was “afraid” after messages herein, As discussed this was messages. receiving sufficient to show infliction of fear “imminent” physical harm under the domestic abuse statutes. We therefore affirm.
Affirmed. C.J.,
Pittman, JJ., Gladwin, Glover, Baker, agree. J.,
Roaf, dissents.
Andree LaytonRoaf, I would reverse Judge, dissenting. and dismissthis case because do not believe that appellee sufficient evidence to Angie presented justify grant order. I conclude that the trial court erred harm, there was the infliction of fear and imminent physical bodily assault, offense, an element of the injury, under the statutory circumstances of this case. 20, 2005, At the Dixon testified that she September hearing, 1, 2005,
and Simmons had on and that separated she April began on 22. She claimed that receiving Simmons April called aher whore and stated she needed to lying quit telling that he her “a**” or he would it. people whipped do She actually claimed that she never said such a but told thing, merely people that he had a habit of when he drunk. Dixon also pushing got testified that Simmons threatened kill he had her given aas Christmas because were in a as to whether she gift dispute had returned all items. She stated that she Harley-Davidson 22, 2005, received the last and that she decided to message May an order of get after Simmons came into June club, whore, called Big her her. Daddy’s pushed She claimed that she filed with the Dell report police the club is in because she asked although Blytheville, was to leave the club and she went home and called the police. According until her, to the sheriffs never faxed department got report to file the complaint and she waited so long for a letter to would have to wait get she was told she
because that she was to dismiss further testified going a court date. Dixon as as left her alone and stopped long complaint off. stated that she her She remarks flipping making catty her because would leave alone believed that Simmons satisfied with a also stated that she would be married. She getting did not a mutual order if order or restraining restraining an order of grant protection. cross-examination, Dixon that after the sheriffs
On stated that the she told them received police report, department remarks and now was catty Simmons was thing doing making off, clear did not her which she admitted present flipping at harm. She testified that worked danger present had never been to either Fasco and Drift-In and that Simmons she believed either Sim- her knowledge, although had at Drift-In. Dixon mons or his fiancee called supervisor restrained from the also admitted that she asked that Simmons be of them still lived and admitted that when residence where neither *8 Drift-In, at she told her Wayne she went to work supervisor, Snow, a Simmons. that she had restraining against the Dell testified that the time went to Police Dixon “[A]t at I had it because of the incident all was Big Daddy’s. Department However, therefore, she the text wanted those.” they messages, she was afraid because Simmons said in the text testified that if he would her and that she that he her out caught whip her dead in her would find backyard. Dixon’s, much of and he Simmons’s with testimony agreed likewise the incident at confirmed Big Daddy’s June resulted in and her
where there was a confrontation which male ousted the club’s bouncers. being by companion she
In Dixon’s affidavit that filed of Dixon recited the text messages the order seeking protection, an that occurred made August and incident at Sonic restaurant no of the incident at that her Daddy’s mention Big precipitated asked that the court exclude Simmons from an yet police report, lived, no her of where apartment longer employment, also “Big Daddy’s.” domestic abuse law is an The “provide mechanism the State of Arkansas can whereby protect adequate health, welfare, citizens safety by intervening general when abuse of a member household another member family by occur, of a household occurs is threatened thus preventing further 2002). violence.” Ark. Code Ann. 9-15-101 (Repl. § instance,
In this reveals that Dixon filed her testimony club, after the altercation in after which she Big Daddy’s addition, she admitted that was one asked to leave. In she did not Simmons’s that she was the one who dispute testimony initially him in the club had to be restrained her approached The club incident occurred well after Dixon testified boyfriend. that she received her last text and her actions negate message, feared would cause harm. prospect bodily Further, Dixon admitted that Simmons no bothered her longer remarks,” to make and that these did except remarks not “catty fear, cause her imminent but that she wanted them to just stop. It both Dixon Simmons said and did unkind appears other, to each things Dixon was often the trial aggressor. this when it stated that Simmons’s threat to recognized whip Dixon was intended to scare Dixon to clearly stop “badmouthing” Simmons; however, trial court made no as to whether finding Simmons’s text inflicted Dixon with fear of message actually imminentharm. Dixon asserts trial court did make a finding of imminence when it stated that this finding required issuance of an order of This is assertion incorrect. As protection. stated the court previously, found Simmons intendedto scare not that he inflicted her with actually imminent fear. correct, if Even the assertion were such of imminence finding would be clear error. Witness did not seem to be an credibility case, issue in this as the trial court decided to issue an order of based Simmons’s own protection upon testimony.
The trial court erred an order of issuing Simmons because it not did make of infliction In harm. the absence of that finding, *9 court could have did made Simmons (but a not) had caused Dixon harm. actually While Simmons admitted to some ill-advised text have sending a definite and firm messages, has a mistake been made in this feeling case. Not no there infliction of but the physical injury, court issued an order of Simmons to protection requiring stay away from club and from a residence at which neither night party resided. While are not criminal protection-order hearings nature, there is some attached been stigma found be having in a domestic-abuse case. The trial court at most perpetrator because both orders have issued mutual restraining parties
should however, alone; it them the other to leave wanted agreed an order simply was error to grant remarks, wanted him catty espe- because Dixon stop making also that Dixon be making fact light appeared cially about Simmons. statements derogatory afraid, it is that she was did claim after fact While Dixon evidence other clear from testimony abundantly the incident at Big Daddy’s, she was by angered presented incident, as a of that result make police report only sought into this then the text messages that it was the who injected police afforded I do not think the important statutory protection dispute. who real Ann. Ark. Code 9-15-101 persons experience § is advanced by threatened domestic abuse permitting Dixon, in such as Ms. a back-and-forth utilization to allow party, feud to score one-upmanship points. boyfriend-girlfriend Lillette SMITH v. Robert McCRACKEN Margaret
and Leslie McCracken 240 S.W.3d CA 06-139 of Arkansas Court Appeals 4, 2006 delivered October Opinion