Julie Ware, Appellant V. Jesse Nelson, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JULIE WARE,
Appellant,
v.
JESSE VERNON NELSON,
Respondent.
No. 69738-2-
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	April 28, 2014
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Becker, J. — To obtain a sexual assault protection order, a petitioner must
establish by a preponderance of the evidence that the alleged sexual misconduct
occurred. 	Here, the trial court found that the petitioner failed to do so after a
hearing that presented a classic credibility contest. 	Deferring to the trial court's
assessment of witness credibility, we affirm the court's decision to deny
appellant's petition.
FACTS
Julia Ware, age 37, filed a petition for a sexual assault protection order,
alleging that Jesse Nelson, age 40, sexually assaulted her on October 13, 2012.
The petition also alleged a history of repeated sexual assault and stalking by
Nelson from 1989 to the present. 	The court granted an ex-parte temporary

No. 69738-2-1/2
sexual assault protection order and set a hearing for a later date. 	The hearing
occurred on November 26, 2012.
After a day of testimony from seven witnesses, the trial court denied
Ware's request for an order of protection and dismissed her petition. 	Ware
appeals.
ANALYSIS
Under chapter 7.90 RCW, the Sexual Assault Protection Order Act, a
person may petition the court for an order of protection from nonconsensual
sexual conduct by another person. 	The court must issue a sexual assault
protection order if the court finds by a preponderance of the evidence "that the
petitioner has been a victim of nonconsensual sexual conduct or nonconsensual
sexual penetration by the respondent." 	RCW 7.90.090(1 )(a). 	Here, the trial court
reviewed all affidavits and exhibits and heard testimony from the petitioner,
Ware, and several of the affiants. The court denied Ware's petition and entered
findings of fact and conclusions of law.
Ware contends that review is de novo. 	This is incorrect. We review a
decision to grant or deny an order of protection for abuse of discretion.1 	We will
reverse only if the trial court's decision is manifestly unreasonable or exercised
on untenable grounds or for untenable reasons. We decline Ware's invitation to
abandon this standard of review and adopt a less deferential standard for orders
under RCW 7.90.090. 	We defer to the trier of fact on the persuasiveness of the
1 In re Knight. 	Wn. App. 	317P.3d 1068, 1072 (2014). citing Hecker v.
Cortinas. 110 Wn. App. 865, 869, 43 P.3d 50 (2002).

No. 69738-2-1/3
evidence, witness credibility, and conflicting testimony.2 Where the court holds a
hearing and weighs contradictory evidence prior to the entry of a protection
order, the proper standard of review is the substantial evidence standard.3
[T]he substantial evidence standard of review should be applied .. .
where competing documentary evidence had to be weighed and
conflicts resolved. 	The application of the substantial evidence
standard in cases such as this is a narrow exception to the general
rule that where a trial court considers only documents, such as
parties' declarations, in reaching its decision, the appellate court
may review such cases de novo because that court is in the same
position as trial courts to review written submissions.141
"Credibility determinations are for the trier of fact and cannot be reviewed on
appeal."5 We review questions of law de novo.
With respect to the allegation that Nelson sexually assaulted her on
October 13, 2012, Ware testified that the assault occurred sometime in the
evening, as it was getting dark, while she was going back and forth between her
apartment and her neighbors' apartment. 	However, evidence presented by
Nelson's wife and his hunting partners provided an alibi. The court specifically
found Nelson's wife to be more credible than Ware and noted inconsistencies in
Ware's evidence. 	The court found by a preponderance of the evidence that
Nelson did not commit the alleged assault on October 12, 2013. The court
further found that Ware did not establish by the preponderance of the evidence
that other contacts between Ware and Nelson during the previous 23 years of
2 Knight. 317 P.3d at 1072; see ajso In re Marriage of Rideout. 150 Wn.2d 337,
351, 77 P.3d 1174 (2003).
3 Rideout. 150 Wn.2d at 351.
4 Rideout. 150 Wn.2d at 351.
5 State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

No. 69738-2-1/4
their off-and-on sexual relationship amounted to nonconsensual sexual conduct
or sexual penetration.
Ware asserts that the facts are undisputed. 	But the facts are undisputed
only if one looks solely at Ware's affidavit and testimony to the exclusion of other
affidavits and ignores the fact that many of the affiants presented live testimony
before the trial court.
Ware also contends that the trial court erred by considering hearsay. 	But
ER 1101(c)(4) governs the applicability of the Washington evidence rules to
protection order proceedings, and the rules of evidence need not be applied in
such proceedings.6
Substantial evidence supports the court's findings, and the findings in turn
support the conclusions of law. The order denying Ware's petition is affirmed.
i
WE CONCUR:
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6 Gourlev v. Gourlev. 158 Wn.2d 460, 464, 145 P.3d 1185 (2006).
4