No. 4-372 / 03-2052.Court of Appeals of Iowa.
June 23, 2004.
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
A defendant appeals from a domestic abuse protection order entered under Iowa Code section 236.5 (2003). AFFIRMED.
Andrew Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellant.
Dennis Kirkwood, Des Moines, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
MILLER, J.
Chad Thompson appeals from the district court’s final domestic abuse protective order, entered under Iowa Code section 236.5
(2003), finding that he committed domestic abuse assault against his wife, Rebekah Thompson. He contends the court erred in admitting hearsay testimony at the hearing and that there was insufficient evidence to support the court’s finding that he committed domestic abuse. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Chad and Rebekah were married on September 22, 2002. They have one minor child together, Dominic, born January 9, 2002. On November 6, 2003 Rebekah filed a petition for relief from domestic abuse. In her petition Rebekah claimed that Chad had grabbed her and choked her in their home about three months earlier. She also claimed that he had “kicked down the front door” of their home on November 3, 2003 and that he had threatened to make her “look like an unfit mother” so “they” would take her son from her. A temporary protective order was issued on November 6 and a hearing on Rebekah’s request for a permanent protective order was held on November 18, 2003.
At the hearing Rebekah testified regarding the choking incident of September 5. She stated that she had been out drinking with some of her friends, including Jill Galinsky, and Chad had been doing the same with some of his friends. When she got home she and Chad got in an argument and he grabbed her by the neck and choked her. She testified that she was scared and tried to call Jill but Chad knocked the phone out of her hand and told her “You can’t call the cops on me.” Rebekah was then able to call Jill, tell her what had just happened, and asked Jill to come pick her up. Jill immediately came and got Rebekah at her apartment. Rebekah also testified that Chad had threatened her before by stating, “If you ever leave with my son, I’ll make sure that you’re dead.” In addition, Rebekah testified about an incident in the summer of 2003 when Chad tried to lock her out on the patio while they were fighting and as she was trying to get back inside her arm got caught in the door and was bruised. Finally, she testified that on the night of November 3, 2003 Chad had bowling league. He was home once and when he left Rebekah told him she did not what him to come back, to “go somewhere and cool off and then come back.” As he left she latched the chain lock on the door. She testified that Chad came back around four or five in the morning and “knocked down,” or “kicked down” the door and the frame.
Rebekah’s friend, Jill Galinsky, also testified at trial. She corroborated parts of Rebekah’s testimony regarding the September choking incident. Jill testified that she and Rebekah and some other friends had gone out on the evening of September 4 at approximately 8:30 p.m. They went to a bar until approximately 2:00 a.m., went back to Jill’s house for about an hour, and Rebekah then left at about 3:00 a.m. Rebekah called Jill approximately fifteen minutes later and was “very upset, panicky, scared.” Jill testified that Rebekah was “screaming” on the phone and told her “that Chad has choked her and she wanted to get out of there and for me to come pick her up.” Jill then went and picked up Rebekah at her apartment. She saw red marks on Rebekah’s neck. Jill stated that Rebekah told her that Chad had got really upset when she came home, they got into a fight, and he choked her.
Chad also testified at the trial. He stated that on the night of the alleged choking incident he had to pick up Rebekah at Jill’s house because she was too drunk to drive the half block home. Chad testified that they got into an argument but he did not grab, choke, or have any type of physical contact with Rebekah on the night in question. Concerning the later incident with the door, Chad testified that Rebekah had chain-locked the door when he left, and he called and told her he would be coming home so not to leave the door chain-locked. Thus, in order to get into their apartment when he found the door still chain-locked he had to push the door so the chain lock would come off, and the part of the frame it was attached to also came off. Finally, Chad denied ever threatening to kill his wife or making threats of any kind to her.
The trial court found, by a preponderance of the evidence, that Chad had committed domestic abuse assault and entered a permanent protective order prohibiting Chad from having contact with Rebekah and granting Rebekah temporary custody of Dominic. Through an incorporated supplemental order the court also ordered Chad to pay $600 per month in child support, established Chad’s visitation rights, and required that all visitation exchanges take place through a third party so there was no contact between the parties during the exchanges. The court also ordered that neither party consume any alcohol or illegal drugs while in the presence of their child.
II. MERITS.
Chad appeals from the trial court’s order, contending the court admitted improper hearsay testimony and there was insufficient evidence to support the court’s finding that he committed domestic abuse assault. We review the district court’s ruling in this law-tried action for the correction of errors at law. See Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997). Thus, the district court’s findings of fact are binding upon us if those facts are supported by substantial evidence. Id.
Hearsay rulings are also reviewed for errors at law because admission of hearsay evidence is prejudicial to the nonoffering party unless the contrary is shown. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998).
A. Hearsay.
Chad argues that the testimony of witness Jill Galinsky was hearsay and should have been excluded. Specifically, he challenges her testimony regarding what Rebekah told her on the phone on the night of the alleged choking incident, and her testimony regarding what Rebekah told her about the red marks on her neck. Chad objected several times to this testimony as impermissible hearsay but the trial court overruled the objections. The State does not assert the testimony was not hearsay, but argues it was admissible under the excited utterance exception to the hearsay rule in Iowa Rule of Evidence 5.803(2).
An excited utterance is, “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” and is not excluded by the hearsay rule even though the declarant is available as a witness. Iowa R. Evid. 5.803(2). The admission of hearsay under this exception lies largely within the discretion of the trial court, which must initially determine whether the out-of-court statements were induced by the excitement caused by the startling event which is being described. State v. Mateer, 383 N.W.2d 533, 535 (Iowa 1986).
Factors to be considered by the court in making this determination include the time lapse between the event and the statement, the extent to which questioning elicited the statements that otherwise would not have been volunteered, the age and condition of the declarant, the characteristics of the event being described, and the subject matter of the statements State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). Here Rebekah’s statements were made to Jill within minutes of the fighting and choking; there is no evidence any questions were asked by Jill to elicit the statements, but instead Rebekah immediately told Jill that Chad had choked her and she needed a ride; Rebekah was twenty years of age, and had been drinking; and the characteristics and subject matter of the event being described were startling and urgent.
The evidence thus shows that Rebekah made the statements at issue while she was still under the stress of excitement caused by the argument and incident with Chad. Rebekah called Jill immediately after the incident, quickly related what had happened over the phone, Jill immediately came and picked her up, and shortly thereafter Rebekah elaborated on the events to Jill. Therefore, the excited utterance exception to the hearsay rule was applicable here and the district court did not err in overruling Chad’s hearsay objections.
B. Sufficiency of the Evidence.
Chad next contends there was insufficient evidence to find he committed domestic abuse assault. In a chapter 236 domestic abuse proceeding the plaintiff must prove the allegation of domestic abuse by a preponderance of the evidence. Iowa Code § 236.4(1). Proof of domestic abuse requires proof of an assault as defined in section 708.1. Iowa Code § 236.2(2). Subject to two exceptions which have no application to the facts in this case, assault is defined as follows:
A person commits an assault when, without justification, the person does any of the following:
1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
Iowa Code § 708.1.
Chad’s contact with Rebekah during the September 5 incident as testified to by Rebekah was, at a minimum, an act done by Chad without justification, intended to result in physical contact which would be insulting or offensive to Rebekah, and coupled with the apparent ability to execute the act. Rebekah’s testimony regarding this incident was corroborated in part by Jill’s testimony. Although Chad denied that any contact occurred on the night in question, the trier of fact has a better opportunity to evaluate the credibility of witnesses and thus the prerogative to determine what evidence to believe. See Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996). Upon review we must liberally construe the court’s findings to uphold, rather than defeat, its ruling. Id. The question before this court is not whether the evidence might support different findings, but whether it supports the findings the court actually made. Id.
We conclude that under such a standard, the record contains substantial evidence to support a finding that the contact, as testified to by Rebekah, in fact occurred.
III. CONCLUSION.
We conclude the district court did not err in overruling Chad’s hearsay objections, because the testimony at issue was admissible under the excited utterance exception. We also conclude the district court’s findings of fact, including its implicit credibility findings, are supported by substantial evidence in the record and are thus binding on this court on appeal.
AFFIRMED.