In the Matter of: Naomi Rae Marx, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1373

In the Matter of:
Naomi Rae Marx, petitioner,
Respondent,

vs.

Matthew Douglas McArthur,
Appellant.

Filed May 13, 2019
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-DA-FA-18-749

Brittney M. Miller, Susan C. Rhode, Moss & Barnett, Minneapolis, Minnesota (for
respondent)

Seamus R. Mahoney, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Rodenberg, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
On appeal from the district court’s grant of an order for protection (OFP) against
appellant, appellant argues that the evidence was insufficient to support the district court’s
factual findings, and the district court should have recognized that he had a right to use
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reasonable force to protect his personal property . Because the district court’s findings are
supported by the record and establish that domestic abuse occurred and because existing
law does not recognize a reasonable-force defense to an OFP petition, we affirm.
FACTS
Appellant Matthew Douglas McArthur and respondent Naomi Rae Marx began a
romantic relationship on February 14, 2017. On June 8, 2018, McArthur and Marx were at
his home when they had a disagreement over a text message that Marx received. McArthur
asked to see Marx’s cell phone to look at the message, and she refused. Marx then went
into McArthur’s bedroom to get his cell phone. McArthur followed her, grabbed the phone
from Marx’s hand, and they both went back to the living room. B oth parties ended up on
the floor in the living room; McArthur held Marx down with “both his hands” and she
“struggled to get up for about 10 to 15 minutes.” Marx was “crying and screaming” and
asking McArthur “to get off.” Eventually, McArthur let Marx up, and she left.
The same day, Marx received medical care for injuries from the assault. She testified
that she had bruises on her back and both shoulders, along with an “open wound” on her
shoulder. The attending doctor at the urgent care advised Marx to go to the emergency
room, which she did. While being treated at the emergency room, Marx stated that she got
in a fight with her boyfriend over a text message, he held her down on the floor by her
arms, and she fought to get him off of her. Marx described her boyfriend as “three times”
her size. The emergency-room summary stated that Marx said she was “fearful” to press
charges because it would “enrage ” McArthur and he “now owns a gun.” Marx’s
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emergency-room records include photographs of bruises and red marks on Marx’s back,
arms, and shoulders. Marx reported the incident to the St. Paul Police Department.
On June 12, 2018, Marx filed an affidavit and petition for an OFP. In her
submission, Marx attested that McArthur’s “abusive behavior has been going on
throughout the relationship,” and had recently “gotten worse.” She also averred that
McArthur “wrestled” her to the ground and held her “down while [she] struggled to get
up” after a dispute over a cell phone. The district court issued an ex parte OFP, which was
served on McArthur. McArthur requested a hearing on the petition, and the district court
conducted an evidentiary hearing, during which it admitted Marx’s medical records,
including pictures of her injuries, the police report, a criminal complaint charging
McArthur with two counts of misdemeanor domestic assault, and text messages betwee n
McArthur and Marx.
During the evidentiary hearing, Marx testified to the facts summarized above and
also testified that, while she and McArthur were on vacation in March 2018, he “put his
entire body weight” on her and “suff ocate[d]” her until she cried. Marx also testified that
she feared for her safety. McArthur’s brother, A.M., testified about the March 2018
incident and stated that McArthur did not physically abuse Marx. A.M. also testified that
he had never seen McArthur abuse Marx.
McArthur testified that he and Marx had relationship problems because of her
jealousy, and they had visited a counselor because of these problems. McArthur admitted
holding Marx down on the floor on June 8, but testified that he did so only to get his cell
phone. McArthur testified that, after he got his phone, he asked Marx to leave. McArthur
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also agreed that he is about “[t]wo hundred and twenty pounds” and is much “bigger” than
Marx; Marx weighs about one hundred pounds less than McArthur does.
The district court issued an OFP, which included these factual findings: McArthur
and Marx were in a “ [s]ignificant romantic or sexual relationship” at the time of the
incident, McArthur admitted that he “held down” Marx on June 8, Marx “sustained injuries
consistent with being h eld down,” and Marx “credibly testified that she experienced fear
of imminent physical harm as a result from being held down by” McArthur. 1
McArthur filed a motion for review of the recommended findings and order, under
Minn. R. Gen. Prac. 611. McArthur argued that he lacked the intent “to do present harm,”
and that he “was acting only to restrain” Marx from taking his property. McArthur asked
that the OFP be dismissed. The district court denied McArthur’s motion, reasoning that
McArthur had incorrectly sought review of the OFP under rule 611, which only applies in
housing court. McArthur appeals.
D E C I S I O N
I. The district court did not abuse its discretion in granting the OFP against
McArthur.

This court reviews a district court’s issuance of an OFP for an abuse of discretion.
Thompson v. Schrimsher, 906 N.W.2d 495, 500 (Minn. 2018). An abuse of discretion
occurs when the district court’s “decision is based on an erroneous view of the law or is
against logic and facts on the record.” Id. This court reviews the record in the light most

1 The order for protection was signed by the referee who conducted the hearing on July 20,
and later confirmed by the district court on July 26.
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favorable to the district court’s findings, and reversal is warranted only when this court is
left with the “definite and firm conviction that a mistake has been ma de.” Pechovnik v.
Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009). We review the district court’s factual
findings for clear error. Ekman v. Miller, 812 N.W.2d 892, 895 (Minn. App. 2012). And
we do not reconcile conflicting evidence or decide issues of witness credibility. Pechovnik,
765 N.W.2d at 99.
A district court may issue an OFP if the petitioner demonstrates that “domestic
abuse” occurred. Minn. Stat. § 518B.01, subd. 4 (2018). Domestic abuse means, in relevant
part, (1) “physical harm, bodily injury, or assault; (2) the infliction of fear of imminent
physical harm, bodily injury, or assault; or (3) terroristic threats” or other specified
offenses, if committed against a family or household member. Id., subd. 2(a) (2018). The
OFP statute “does not require that the physical harm, bodily injury, or assault has occurred
within a specified time before the petition is filed or be imminent.” Thompson, 906 N.W.2d
at 499 (quotations omitted). Once a district court determines that domestic abuse has
occurred, it may “examine all of the relevant circumstances proven to determine whether
to grant or deny the petition for an OFP.” Id. at 500.
On appeal, McArthur appears to contest the district court’s determination that Marx
established domestic abuse by a family or household member because he did not live with
Marx. McArthur acknowledges that he did not raise this issue to the district court. To the
contrary, at the hearing, McArthur removed any issue about the relationship element when
his attorney stipulated “that this was an intimate relationship and would qualify as a family
relationship.” Generally, we do not consider issues that were not raised to and considered
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by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The statutory
definition of “[f]amily or household member” includes someone with whom the defendant
has a “significant romantic or sexual relationship.” Minn. Stat. § 518B.01, subd. 2(b)(7)
(2018). Although the term “significant” is not defined, the statute directs district courts to
“consider the length of time of the relationship; type of relationship; frequency of
interaction between the parties; and, if the relationship has terminated, length of time since
the termination” to determine whether the statutory relationship exists. Id., subd. 2(b).
In addition to McArthur’s stipulation of an intimate relationship, the record
establishes that McArthur and Marx were in a romantic relationship for a year and a half,
considered one another boyfriend and girlfriend, stayed over at each other’s houses, went
on vacation together, and attended therapy to improve their relationship. This evidence
supports a finding that Marx and McArthur were in a significant romantic relationship. See,
e.g., State v. Robinson, 921 N.W.2d 755, 761-62 (Minn. 2019) (concluding parties were in
a significant romantic or sexual relationship, even though they were only together for about
one month, based on the “consequences of the relationship to the parties”). Because
McArthur did not raise the issue in district court, stipulated to an intimate relationship with
Marx, and the record supports the district court’s finding of a “significant romantic or
sexual relationship,” we conclude that the district court did not clearly err on the
relationship element.
Next, McArthur argues that he did not intend to harm Marx physically and Marx
was also involved in “the struggle,” therefore, the district court abused its discretion in
granting the OFP. This court has previously held that, “to establish domestic abuse, a party
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must show present harm or an intention on the part of the [ alleged abuser] to do present
harm.” Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005)
(emphasis added) (quotation omitted). In Thompson, the supreme court held that upon a
showing that physical harm, bodily injury, or assault has occurred, “the district court has
the discretion, based on all of the relevant circumstances, to grant or deny a petition for an
order for protection.” 906 N.W.2d at 496. In other words, a district court must find either
physical harm or intent to do physical harm, but it need not find both before issuing an
OFP. Here, the record supports the district court’s finding that Marx was physically harmed
and suffered bodily injury after McArthur held her down on June 8. Because the district
court found that McArthur physically harmed Marx, it acted well within its discretion in
granting an OFP. No finding of McArthur’s intent was required.
Finally, McArthur argues that the record does not establish that Marx was “fearful
for her life or [had an] imminent fear of physical harm.” We disagree with McArthur’s
description of the record. Marx testified that McArthur had been previously abusive during
their vacation, that she was afraid during the June 8 assault, and that she feared McArthur
because he owned a gun. Also, the district court found that Marx “credibly testified that
she experienced fear of imminent physical harm.” We defer to a district court’s credibility
findings. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Because the record
supports the district court’s factual finding that Marx feared physical harm from McArthur
on June 8, and because we defer to the district court’s decision to credit Marx’s testimony
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over McArthur’s testimony, we conclude that the district court’s finding that Marx was
fearful of McArthur was not clearly erroneous.2
In sum, the district court’s findings of fact are fully supported by the record.
II. The district court did not err by rejecting McArthur’s affirmative defense that
he was protecting his property.

McArthur testified that he held Marx down to get his cell phone back. Also,
McArthur’s attorney argued at the evidentiary hearing that no OFP should be issued
because McArthur had a right to possess his personal property. On appeal, McArthur
argues that he “only used reasonable force that was necessary to retrieve his phone,” and
he was entitled to use force to defend his property , therefore, the district court erred in
issuing the OFP.
We reject McArthur’s argument for three reasons. First, he cites no pertinent legal
authority. The only case McArthur cites is State v. Johnson, 152 N.W.2d 529, 532 (Minn.
1967), which discusses self-defense to a murder charge, not defense of property. Generally,
we do not consider arguments on appeal that lack any legal authority. See, e.g., Ganguli v.
University of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address
allegations unsupported by legal analysis or citation). Second, an OFP is a statutory

2 In the addendum to his brief to this court, McArthur included the register of actions and
disposition of the criminal case that followed the June 8 incident. McArthur asks this court
to “note that the said criminal charges . . . [were] later dismissed.” Because this document
is not part of the record, we do not consider it in our decision. See Minn. R. Civ. App. P.
110.01 (“The documents filed in the trial court, the exhibits, and the transcript of the
proceedings, if any, shall constitute the record on appeal in all cases.”); see also
Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (stating that “[i]t
is well settled that an appellate court may not base its decision on matters outside the record
on appeal”).
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proceeding. We cannot recognize defense of property in this case without adding words to
the statute, which we will not do. See generally Rohmiller v. Hart, 811 N.W.2d 585, 590
(Minn. 2012) (“We cannot add words or meaning to a statute that were intentionally or
inadvertently omitted. ”). Third, Minnesota has recognized defense of property as an
affirmative defense in response to criminal charges only. Minnesota Statutes section 609.06
provides the affirmative defense of property, which authorizes reasonable force in
resistance of trespass or other “unlawful interference” with real or personal property. Minn.
Stat. § 609.06, subd. 1(4) (2018). We decline to extend the law by recognizing defense of
property as an affirmative defense to a petition for an OFP. See Tereault v. Palmer ,
413 N.W.2d 283, 286 (Minn. App. 1987) (“[T]he task of extending existing law falls to the
supreme court or the legislature, but it does not fall to this court.”) , review denied (Minn.
Dec. 18, 1987).
We conclude that the district court did not err by rejecting McArthur’s
defense-of-property claim because there is no legal authority supporting it as an affirmative
defense to an OFP petition. Accordingly, we affirm the district court’s grant of an OFP
against McArthur.
Affirmed.