Martinez v. Estes

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BOYD R. MARTINEZ, Plaintiff/Appellee,

v.

DONTE ESTES, Defendant/Appellant.

No. 1 CA-CV 23-0639 FC
FILED 09-10-2024

Appeal from the Superior Court in Yuma County
No. S1400PO202300574
The Honorable Roger A. Nelson, Judge

VACATED

COUNSEL

LisaLaw LLC, Mesa
By Lise R. Witt
Counsel for Defendant/Appellant

Schneider & Onofry P.C., Phoenix
By Jon D. Schneider, Dee R. Giles
Counsel for Plaintiff/Appellee
 MARTINEZ v. ESTES
Opinion of the Court

OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Judge Michael J. Brown joined. Presiding Judge Samuel A. Thumma
concurred in part and dissented in part.

C A M P B E L L, Judge:

¶1 Donte Estes appeals the continuance of an injunction against
harassment imposed against him after an evidentiary hearing. He
challenges the court’s finding that “[a] series of acts . . . that would cause a
reasonable person to be seriously alarmed, annoyed or harassed” occurred.
A.R.S. § 12-1809(T)(1)(a). Because the record does not adequately support
that Estes engaged in a series of acts of harassment, we vacate the
injunction.1

BACKGROUND

¶2 Boyd Martinez (Father) shares custody of his two children
with Mother. At the time of the alleged incident giving rise to the injunction,
his daughter, Brooke2, was six years old. When Father arrived to pick
Brooke up from Mother’s house one day in August 2023, he noticed Brooke
was acting strangely. Father later testified that she was “shut down,” “had
her head down,” “didn’t want to talk,” and was quiet. When Father asked
her what was wrong, she replied, “He won’t leave the house,” referring to
Estes, Mother’s “friend, the neighbor who’s always over.” Brooke told
Father that Estes touched her on her thigh and then her chest. She explained
that she felt “shaky,” “scared,” and “bad,” and that she “tried to push him
out [of the house].”

¶3 Father called the Yuma Police Department to report the
incident. The next day, he took Brooke to Amberly’s Place for a forensic
interview. After the interview, the detective told Father there was
insufficient evidence to bring criminal charges.

1 We issued an order on July 18, 2024, vacating the injunction against
harassment with a decision to follow.
2 We use a pseudonym to protect the identity of the child.

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Opinion of the Court

¶4 Father then sought an injunction against harassment, asking
the court to prohibit Estes from being around both his children. The court
granted an ex parte injunction, which Father had served. Estes timely
requested an evidentiary hearing.

¶5 At the hearing, Father recounted Brooke’s allegations. After
Father’s direct testimony, Estes moved to dismiss the petition. He asserted
that Father failed to allege two separate acts of harassment as required both
by rule and by statute. See Ariz. R. Protective Ord. P. 25(b) (requiring
petition to “allege a series of specific acts of harassment,” meaning “at least
two events”); A.R.S. § 12-1809(C)(3), (T)(1)(a) (requiring petition to
specifically state “[a] series of acts”). The court denied the motion, finding
sufficient evidence of a series of acts: “It was a touch to the thigh and a touch
to the chest. That’s two.” Both Estes and Mother testified. After hearing
closing arguments, the court continued the injunction, finding “by a
preponderance of the evidence that acts of harassment have occurred, a
series of acts.” Estes timely appealed.

DISCUSSION

¶6 Estes primarily challenges the continuance of the injunction
against harassment based on Father’s failure to show that two separate acts
of harassment occurred. See Ariz. R. Protective Ord. P. 25(b). He argues the
court’s denial of his motion to dismiss and the continuance of the injunction
were in error. Estes also argues the court engaged in irrational bias when it
upheld the injunction and improperly held the contested injunction hearing
11 business days after his request. We address each argument in turn.

I. Sufficiency of the Evidence

¶7 We review orders granting injunctions against harassment for
an abuse of discretion. LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 10 (App. 2002).
An abuse of discretion occurs “when the record, viewed in the light most
favorable to upholding the trial court’s decision, is devoid of competent
evidence to support the decision.” Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14
(App. 2012) (citation and internal quotation marks omitted). We do not
substitute our judgment for the trial court’s when substantial evidence
supporting an injunction exists. Wood v. Abril, 244 Ariz. 436, 438, ¶ 6 (App.
2018).

A. Series of Acts Requirement

¶8 In the context of an injunction, “harassment” means “[a]
series of acts over any period of time” directed at a specific person. A.R.S.

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Opinion of the Court

§ 12-1809(T)(1)(a). A petition for an injunction against harassment requires
a “specific statement showing events and dates of the acts constituting the
alleged harassment.” A.R.S. § 12-1809(C)(3) (emphasis added). “Section
12-1809 is intended to address a situation in which a person directs
harassing conduct at his target repeatedly.” LaFaro, 203 Ariz. at 486, ¶ 15
(emphasis added). That intent is implemented through Rule 25(b) of the
Arizona Rules of Protective Order Procedure, which provides that “[a]
series of acts means at least two events” and requires a petitioner to allege
“a series of specific acts.” Conduct must be repetitive, even if minimal, to
meet the harassment requirement in the statute. See Ariz. R. Protective Ord.
P. 25(b).

¶9 The requirement of more than one act flows from the need to
establish a pattern of harassing behavior. Requiring such a pattern serves
an important filtering function, helping courts to differentiate between
trivial or isolated incidents and repeated harassing behavior justifying legal
intervention.

¶10 While the “series of acts” requirement may, at first blush,
seem straightforward, Arizona case law on what it takes for there to be “two
events” of harassment has become muddied when two acts are alleged to
have occurred close in time. In other words, when the harassment occurs in
rapid succession, how should courts determine if it is two separate events
or a single ongoing event?

¶11 This problem arose after this court’s decision in LaFaro, where
the court seemed to conclude that a single conversation involving multiple
slurs was not a “series of acts” sufficient to support an injunction against
harassment. 203 Ariz. at 486, ¶ 14. In subsequent memorandum decisions,
the rule from LaFaro—that a single conversation is one act or event—
became murky. For example, sending multiple text messages and leaving
two voicemails over two days, “regardless of the similarity in content of the
messages,” is a series of acts. See Trapp v. Flynn, 1 CA-CV 22-0125, 2022 WL
16936202, at *1–2, ¶¶ 3–4, 9 (Ariz. App. Nov. 15, 2022) (mem. decision). But
see Muriset v. Power, 2 CA-CV 23-0054, 2023 WL 6051404, at *2, ¶ 9 (Ariz.
App. Sept. 15, 2023) (mem. decision) (referring to a “series of text messages”
on a single day as a single act of harassment: “the September 26 text
messages amounted to another act of harassment”) (emphasis added).
Instigating a verbal altercation and retrieving a gun during that altercation
is a “series of acts,” despite being “committed within a short period.”
Marshall v. Graulich, 1 CA-CV 16-0148, 2017 WL 586397, at *1, *3, ¶¶ 2, 21
(Ariz. App. Feb. 14, 2017) (mem. decision). But a physical fight is a “single

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incident . . . insufficient to support a finding of harassment” without regard
to the number of blows exchanged. Wood, 244 Ariz. at 438, ¶ 10.

¶12 Here, Father testified that on August 17, Brooke told him “‘He
touched me here,’ on her thigh, ‘and then here’ (indicating [her chest]).3”
The child did not specify whether the touching occurred over a period of
time, nor did she indicate whether the nature of the touching was sexually
motivated or even intentional. Brooke conveyed that a touch to the thigh
and “then” a touch to the chest occurred. She did not indicate that the
touching was separated sufficiently to indicate that two events occurred.

¶13 During his testimony, Father noted that, when he reported the
touching to law enforcement, Brooke could not explain to the detective
what happened with any more detail, “[a]nd since—she didn’t articulate
that she was touched anywhere else, the detectives said that no criminal
proceedings could be taken forth.” Father did not present any additional
evidence indicating when or how Estes allegedly touched Brooke. Absent
more, the court abused its discretion by finding reasonable evidence that
the touching constituted a series of acts necessary for the issuance of an
injunction. See A.R.S. § 12-1809(E) (providing that an injunction shall be
granted “if the court finds reasonable evidence of harassment of the
plaintiff by the defendant during the year preceding the filing of the
petition”).

¶14 Father argues that two separate events can occur in any
amount of time, no matter how short. We agree, yet Father did not provide
clear testimony that the thigh- and chest-touching were two distinct events
separated by any amount of time. To quote the trial court, we “don’t know
what happened exactly.” Relevant evidence, including hearsay, is generally
admissible to obtain an injunction against harassment. See Ariz. R.
Protective Ord. P. 36(a). Yet the only evidence that the thigh- and chest-
touching here were separate events was Father’s use of the words “and
then” when motioning to the court where Brooke said she was touched:
“’He touched me here,’ on her thigh, and then ‘here,’ (indicating [her
chest]).” Given the statutory requirement of a series of acts, the court erred
in concluding that Father’s use of “and then,” without more, was
reasonable evidence establishing temporal separation between the alleged
acts of harassment. See A.R.S. § 12-1809; LaFaro, 203 Ariz. at 486, ¶ 15 (noting
legislative intent). The dissent’s approach, on the other hand, risks creating

3 Father apparently used hand gestures to demonstrate where Brooke
said Estes touched her. The petition alleged the touches were to the thigh
and the chest.

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Opinion of the Court

a revolving door that allows easily offended individuals to repeatedly
petition for an injunction on the occurrence of any unpleasant encounter,
regardless of how isolated or trivial.

¶15 The two opinions Estes relies upon to support his position are
distinguishable. In LaFaro, the issue was whether harassing acts directed at
different parties could support an injunction against harassment regarding
one of those parties, not whether multiple slurs uttered in a single
conversation constituted a series of acts. 203 Ariz. at 486, ¶ 14. But even if
that had been the issue, the court’s holding suggests multiple slurs in a
single conversation do not constitute a series of acts: “this conversation was
only one act directed at LaFaro, not the ‘series of acts’ required for
injunctive relief.” Id.

¶16 In Wood v. Abril, the court affirmed the holding in LaFaro: two
separate acts targeting different individuals are not a “series of acts . . .
directed at a specific person,” and therefore cannot support an injunction
against harassment regarding one of the individuals. 244 Ariz. at 438,
¶¶ 8–11; see A.R.S. § 12-1809(T)(1)(a). Wood involved two incidents: a verbal
altercation and a physical fight. 244 Ariz. at 438, ¶ 7. Yet only the physical
fight involved the party seeking the injunction against harassment. Id. at
¶¶ 8, 10. Because the court determined that the physical fight was a “single
incident,” it was insufficient to support a finding of harassment. Id. at
¶¶ 10–11. Here, we have no record evidence of two separate acts of
touching, nor does this case involve acts directed at two individuals. So,
Estes’ reliance on LaFaro and Wood is misplaced.

¶17 The record lacks sufficient evidence that the touching to the
thigh and the chest were distinguishable events, much less a series of acts.
Because there is no reasonable evidence of repeated acts that would cause
a reasonable person to feel harassed, the superior court erred by failing to
dismiss the injunction. Cf. Danko v. Dumas, 1 CA-CV 21-0019, 2021 WL
4164045, at *4–5, ¶¶ 24–29 (Ariz. App. Sept. 14, 2021) (mem. decision)
(holding that the superior court did not err in dismissing injunction because
none of petitioner’s claims were supported by substantial evidence).

B. No Allegation of Sexual Violence

¶18 Finally, Father did not allege that the touching was sexual
contact as defined by statute. According to A.R.S. § 12-1809(T)(1), in
addition to a series of harassing acts, harassment may also be “one or more
acts of sexual violence as defined in § 23-371.” Sexual violence under A.R.S.
§ 23-371(J) includes “[s]exual contact,” defined as “any direct or indirect

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Opinion of the Court

touching, fondling or manipulating of any part of the genitals, anus or
female breast by any part of the body.” A.R.S. § 13-1401(A)(3)(a). Sexual
contact does not include “direct or indirect touching or manipulating
during caretaking responsibilities or interactions with a minor or
vulnerable adult that an objective, reasonable person would recognize as
normal and reasonable under the circumstances.” A.R.S. § 13-1401(A)(3)(b).
Here, even had Father petitioned based on a sexual contact allegation, the
injunction remains unsupported: the record is devoid of evidence of even
one act of sexually motivated touching by Estes.

¶19 To be clear, this court acknowledges the importance of taking
a child’s allegations of unwanted contact seriously. In reversing this
injunction against harassment, we are not condoning grooming behavior
that precedes sexual abuse. But here, we have no allegation that the
touching was sexually motivated, nor do we have evidence that the
touching was anything but innocent. We are simply bound by the record
presented which lacks sufficient evidence to support the injunction.

II. Irrational Bias

¶20 Because we find the evidence insufficient to uphold the
injunction, we need not address other arguments. But, for the sake of
thoroughness, we address and reject Estes’ additional claims. Estes next
argues the superior court predicated its decision on “irrational bias,”
ignoring important evidence. “A trial judge is presumed to be free of bias
and prejudice and to overcome this presumption, a party must show by a
preponderance of the evidence that the trial judge was, in fact, biased.”
Cardoso v. Soldo, 230 Ariz. 614, 619–20, ¶ 19 (App. 2012). Estes supports his
argument by pointing to evidence he believed the trial judge “ignored.”
Because a trial judge is in the best position to evaluate evidence and witness
credibility, and because we defer to the judge’s determinations, Estes failed
to prove bias. See Goats v. A. J. Bayless Mkts., Inc., 14 Ariz. App. 166, 171
(1971).

III. Timeliness of Hearing

¶21 Finally, we dismiss Estes’ argument that the court improperly
scheduled the contested injunction hearing to occur 11 days after his
request, in violation of Rule 38(b)(2) of the Arizona Rules of Protective
Order Procedure. When requested, a hearing must be held “within 10 court
business days of the request.” Id. However, Estes did not challenge the
timeliness of the hearing below, so he has waived this argument on appeal.
See BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 593–94, ¶ 25 (App. 2021).

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Opinion of the Court

CONCLUSION

¶22 For all these reasons, we vacate the trial court’s decision to
continue the injunction against harassment. We grant Estes’ request for
costs and in the exercise of our discretion deny his request for attorney fees.

T H U M M A, J., concurring in part and dissenting in part:

¶23 I agree with a great deal of the Majority’s analysis. Father did
not allege that the touching was sexual contact; Estes has not shown
irrational bias and Estes waived any argument regarding the timeliness of
the evidentiary hearing. I agree that this court reviews orders granting
injunctions against harassment for an abuse of discretion, affirming when
reasonable evidence supports the injunction. See Ariz. R. Protective Ord. P.
25(e)(1)(A). I agree that Arizona case law is less than clear when specifying
the minimum required showing for a proper harassment finding. I also
agree that Father’s testimony about what Brooke told him was hearsay,
albeit admissible hearsay. And I further agree that, from the record, we
“don’t know what happened exactly,” although the superior court did find
Brooke “felt threatened and didn’t feel safe, whatever happened.”

¶24 Where I part ways with the Majority is the conclusion that the
factual record here could not, as a matter of law, support the injunction
against harassment issued by the superior court.

¶25 As applicable here, “harassment” means “[a] series of acts
over any period of time that is directed at a specific person and that would
cause a reasonable person to be seriously alarmed, annoyed or harassed
and the conduct in fact seriously alarms, annoys or harasses the person and
serves no legitimate purpose.” A.R.S. § 12-1809(T)(1)(a). As noted by the
Majority, the required “series of acts” can occur in any amount of time, no
matter how short.1

1 The Majority references “two separate events,” a paraphrase of the rule-

based requirement that a petition seeking an injunction against harassment
“must allege a series of specific acts of harassment,” adding that “[a] series

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Thumma, J., concurring in part and dissenting in part

¶26 Arguing Father did not prove “two specific acts” of
harassment, Estes asserts there was “only one event.” Father, however,
testified that Brooke said Estes “‘touched me here,’ on her thigh, ‘and then
here’ (indicating [her chest]).” Given the statutory requirement and the
standard of review, that evidence‒Estes touched Brooke’s thigh and then
he touched her chest‒supports the superior court’s finding that Father
demonstrated the required “series of acts over any period of time” required
for the injunction.

¶27 For that reason, I would affirm the injunction against
harassment. And to the extent that conclusion differs from what LaFaro
identified as the “legislative intent” of A.R.S. § 12-1809, I would depart from
LaFaro, relying instead on the statutory language requiring a “series of acts
over any period of time.”

AMY M. WOOD • Clerk of the Court
FILED: AGFV

of acts means at least two events.” Ariz. R. Protective Ord. P. 25(b). I use the
statutory phrase “series of acts,” A.R.S. § 12-1809(T)(1)(a), which the rules
use to define “harassment,” Ariz. R. Protective Ord. P. 3(c)(1), recognizing
a court rule cannot expand the substance of a statute, State ex rel. Brnovich
v. City of Tucson, 242 Ariz. 588, 595 ¶ 27 (2017).

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