In the Matter of: Josephine Pearl Paul, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1148

In the Matter of:
Josephine Pearl Paul, petitioner,
Respondent,

vs.

David Kevin Wittman,
Appellant.

Filed April 24, 2017
Reversed
Johnson, Judge

Hennepin County District Court
File No. 27-DA-FA-16-3846

Josephine Pearl Paul (pro se respondent)

Alexander H. De Marco, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Schellhas, Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The district court found that David Kevin Wittman engaged in domestic abuse
against Josephine Pearl Paul by causing her to fear an assault. The district court issued an
order for protection that prohibits him from having contact with her for two years. The
issue on appeal is whether the evidence presented to the district court supports the district
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court’s finding that domestic abuse occurred. We conclude that the evidence is insufficient
to support the finding of domestic abuse and, therefore, reverse.
FACTS
From October 2015 to April 15, 2016, the parties lived in the same household but
were not in an intimate relationship with each other. Josephine and her boyfriend, Ellyot
Stacy, shared a bedroom in a residence owned by David, who is Ellyot’s uncle. During the
evening of April 15, 2016, David entered Josephine and Ellyot’s bedroom while Josephine
was alone in bed and Ellyot was not at ho me. The details of that incident are described
below.
On June 1, 2016, Josephine petitioned the district court for an ex parte order for
protection (OFP) based on the April 15, 2016 incident. In the petition and her
accompanying affidavit, Josephine all eged that David had caused her to fear a sexual or
physical assault. The district court issued an ex parte OFP, and it was served on David on
June 6. The ex parte OFP restrained David from committing domestic abuse against
Josephine and from having any contact with her two years.
David requested an evidentiary hearing on Josephine’s petition. See Minn. Stat.
§ 518B.01, subd. 7(c) (2016). The district court conducted the hearing on June 14, 2016.
Josephine appeared pro se with a domestic-abuse advocate. She testified and called Ellyot
as a witness. David testified and called two witnesses : his fiancé, who lived with him in
his home, and a friend who was at the home at the time of the incident.
The district court examined Josephine, who testified as follows: On the evening in
question, she was alone in bed, wearing only a T-shirt and underpants. She was unable to
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fall asleep because David and a friend were making noise. She sent a text message to David
to ask him about the noise. She called Ellyot, who was not at home, and left him a message
asking him to call David to ask him to be quiet . Shortly thereafter, David entered her
bedroom. He smelled of alcohol. He leaned over the bed and hugged her as she sat up in
bed. He then kneeled beside the bed, plac ing his hands on the edge of the bed, and
apologized to her repeatedly. He “kept apologizing” and said that he “felt really bad” about
the noise. He said that he owed her a favor. She believed that David was making “a sexual
advance” and did no t “feel comfortable being in the room with him.” She asked him to
leave her bedroom , but he said that he would not leave until she hugged him back.
Josephine then received a call from Ellyot on her cellular telephone. Ellyot yelled at David
through the telephone to leave the bedroom. David “got mad” because Josephine would
not give him a hug and told her to hang up on Ellyot. David then lay on the bedroom floor,
appeared to be “very drunk,” and “couldn’t get up.” Josephine asked David’s friend, who
was standing in the bedroom doorway, to help remove David from the bedroom. The friend
coaxed David into leaving the bedroom. After David left, Josephine locked herself in the
bathroom and waited for Ellyot to return home. While waiting, she called the police. She
described herself as “hysterical” and “really, really, really upset.” She left David’s home
that night and never returned. She testified that the incident in the bedroom lasted between
five and ten minutes.
Josephine testified that she was seeking an OFP for the following reasons:
[T]he bottom line while I was staying [at David’s
residence] was that [David] does not get when I need my space,
he doesn’t get when anyone needs their personal space, and he
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abuses alcohol and those two combinations is — they don’t go
together and that’s why I feel . . . I feel like I needed to come
here and protect myself because the night that I called the cops,
they didn’t even file a report on it. Like I went to go find a
report so that I could bring it here and nobody filed a report on
it. Um, I just think it’s really unfair and I think that by even
him petitioning for this trial is — he just doesn’t want to deal
with the consequences that he has to because — I don’t know.
I just — I just feel like I need protection. I’m part of his family
now. I do not want to have to deal with this kind of stuff in the
future.
Ellyot testified that he called David to ask him to be quiet after Josephine called him
to request his assistance . David asked him for a hug over the telephone. Ellyot hung up
when David engaged in drunken “rambling.” He then called Josephine while David was
in the bedroom, heard David ask her for a hug, and felt that Josephine was “obviously very
uncomfortable.” He arriv ed at the home only minutes after David left the bedroom and
had a physical altercation with David in the front yard. He found Josephine locked in the
bathroom and perceived that she was fearful for her safety.
In David’s testimony, he admitted that he was drunk, that he touched Josephine on
the shoulder, and that he asked for a hug, but he denied that he made a sexual advance or
that he was angry. He entered the bedroom because “we had agreed in our house that we
would talk to each other and . . . not let things fester.” He often hugs others when he is
intoxicated. The incident in the bedroom lasted no more than two minutes. He sought and
obtained an OFP against Ellyot three days after the incident based on their physical
altercation in the front yard, and he expressed the belief that Josephine’s petition was
retaliatory.
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David’s friend testified that he observed David in the bedroom through the bedroom
door, which was ajar . He testified that the incident lasted approximately one minute.
David’s fiancé testified that she was asleep in her bedroom at the time, that she is a light
sleeper, and that she did not hear anything that occurred in Josephine’s bedroom . She
testified that David likes to hug people when he is intoxicated.
On the same day as the hearing, the district court issued a five-page order with 16
paragraphs of findings of fact. The district court found Josephine’s testimony to be credible
and found that domestic abuse had occurred. The district court concluded its findings of
fact as follows:
Based on [David]’s conduct in hugging [Josephine] while she
was in bed, refusing to leave until she hugged him again, along
with his intoxication and anger, she feared an assault by
[David]. When he left the room, she locked herself in the
bathroom, called the police, and later left the premises never to
return. She is clearly fearful for her safety.

The district court found that David’s testimony is not credible because he was “extremely
intoxicated” such that his memory is not as reliable as Josephine’s. The district court also
did not credit the testimony of David’s two witnesses because they did not see or hear the
entire incident in the bedroom. The district court issued an OFP that prohibits David from
committing do mestic abuse against Josephine and from contacting her for two years .
David appeals.
D E C I S I O N
David argues that the district court erred by issuing the OFP on the ground that the
evidence does not support the district court’s findings that he engaged in domestic abuse.
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Under the Minnesota Domestic Abuse Act, a district court may issue an OFP to
protect victims of domestic abuse. See Minn. Stat. § 518B.01 (2016). To obtain an OFP,
a petitioner must prove by a preponderance of the evidence that the respondent has
committed domestic abuse “against a fami ly or household member.” Minn. Stat.
§ 518B.01, subd. 2(a); see also Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015).
The term “domestic abuse” is defined by statute to include any of the following:
(1) physical harm, bodily injury, or assault;

(2) the infliction of fear of imminent physical harm,
bodily injury, or assault; or

(3) terroristic threats, . . . criminal sexual conduct,
. . . or interference with an emergency call . . . .
Minn. Stat. § 518B.01, subd. 2(a).
This court applies an abuse-of-discretion standard of review to a district court’s
issuance of an OFP. Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009). A
district court abuses its discretion if it issues an OFP without sufficient evidence to support
the district court’s findings . Id. We review the district court’s factual findings for clear
error. Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004) . We will not “reconcile
conflicting evidence” or “decide issues of witness credibility, which are exclusively the
province of the factfinder.” Id.
In light of the district court’s findings, it is apparent that the legal basis of the OFP
is the second clause of the definition of domestic abuse: “the infliction of fear of imminent
physical harm, bodily injury, or assault.” See Minn. Stat. § 518B.01, subd. 2(a)(2). David
contends that the record does not contain evidence that Josephine feared imminent physical
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harm, bodily injury, or assault. David’s contention has merit. Josephine testified in detail
about her reactions to David’s conduct, but she never testified that she was fearful. She
testified that she was “really upset,” “uncomfortable,” and “obviously not into whatever it
was going on at the time.” But she never testified that she was fearful that David might
inflict physical harm, bodily injury, or assault. Likewise, Ellyot testified that, while David
was in the bedroom with Josephine and he w as on the telephone with Josephine, he
perceived that she was “obviously very uncomfortable.” The closest the evidentiary record
gets to fear of an assault is Ellyot’s testimony that, when he arrived at the home and found
Josephine in the bathroom , she was “scared for her own safety .” But those are Ellyot’s
words, not Josephine’s. Furthermore, Josephine described conduct by David that, by itself,
does not allow an inference that the infliction of physical harm, bodily injury, or assault
was imminent. David was on the floor, not on her bed. He touched Josephine only twice,
by giving her a hug and by touching her hand with his hand. Josephine testified that she
perceived David’s conduct and his mention of a “favor” to be “a sexual advance,” which
made her not “feel comfortable being in the room with him.” A sexual advance ( i.e., an
offer to voluntarily engage in sexual contact with another), by itself, does not satisfy the
statutory definition of domestic abuse, unless there also is fear of an imminent assault. But
Josephine did not testify that she feared a sexual assault or any other form of “imminent
physical harm, bodily injury, or assault.” See Minn. Stat. § 518B.01, subd. 2(a).
Thus, the evidence in the record does not support the district court ’s finding that
Josephine experienced fear of an assault by David. Because the evidence does not support
the district court’s finding on that issue, the district court erred by finding that David
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engaged in domestic abuse against Josephine. Because David did not engage in domestic
abuse, the district court erred by issuing the OFP.
Reversed.