Mahar v. Acuna, II

FILED BY CLERK
IN THE COURT OF APPEALS OCT 18 2012
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO

GINA MARIE MAHAR, )
) 2 CA-CV 2012-0060
Plaintiff/Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
HECTOR ACUNA II, )
)
Defendant/Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. DV20120168

Honorable David R. Ostapuk, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART

Natasha Wrae Tucson
Attorney for Defendant/Appellant

E C K E R S T R O M, Presiding Judge.

¶1 This appeal concerns an order restricting the right of the appellant, Hector

Acuna, to possess a firearm. The trial court issued this formal order, which was entitled

“Notice to Sheriff of Positive Brady Indicator” (hereafter “Brady notice”), 1 along with an

1
The Brady notice refers to the federal Brady Handgun Violence Prevention Act,
Pub. L. No. 103-159, 107 Stat. 1536 (1993), but the substance of the document relates to
the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,
order of protection in favor of the appellee, Gina Mahar, after a hearing at which both

parties testified. On appeal, Hector maintains the court erred by entering the Brady

notice without finding a sufficient legal basis to support it. Because we agree the

firearms restriction is either unsupported by the record or legally erroneous, we vacate the

court’s order prohibiting Hector from possessing firearms or ammunition.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the trial

court’s ruling. IB Prop. Holdings, LLC v. Rancho Del Mar Apartments Ltd. P’ship, 228

Ariz. 61, ¶ 2, 263 P.3d 69, 71 (App. 2011). Hector and Gina’s marriage, which produced

children, was dissolved by a Pima County Superior Court decree. Hector is a federal

Border Patrol agent and is remarried to Guadalupe Acuna.

¶3 In late January 2012, Gina filed a petition for an order of protection against

Hector—as well as a petition for an injunction prohibiting harassment by Guadalupe—

based on an incident that had occurred earlier that week.2 In the petition against Hector,

Gina alleged she had been involved in a verbal altercation with the Acunas that became

physically violent when Guadalupe punched Gina. The petition further alleged Hector

had committed “custodial interference” during the encounter by refusing to return

physical custody of their eldest daughter to Gina. In the same petition, Gina specifically

§ 110401, 108 Stat. 1796, which amended portions of the Gun Control Act of 1968. See
generally United States v. Sanchez, 639 F.3d 1201, 1203 (9th Cir. 2011); Martin v.
Schroeder, 209 Ariz. 531, ¶ 20, 105 P.3d 577, 582 (App. 2005).
2
Although Guadalupe is not a party to this appeal, her involvement below is
relevant to the factual and procedural background of the case.

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requested that the trial court prohibit Hector from possessing firearms or ammunition

based on “the risk of harm” he posed.

¶4 At the ex parte hearing on the petitions, the superior court declined to issue

any orders, because a petition to modify child custody was still pending before the court.

The court then transferred the case to a different division and scheduled a hearing for

February 2, 2012.3

¶5 At the February hearing on Gina’s petitions, she testified she and the

Acunas had met outside her apartment complex on the day in question to discuss issues

related to the children. According to Gina, Hector had yelled at her and had “verbally

abus[ed]” her, calling her a “whore who lives on welfare.” Guadalupe then began

pushing Gina. Hector got between the two women in an effort to keep them apart, but

Guadalupe threw a punch over his shoulder that hit Gina in her jaw. Gina did not claim

that Hector had physically assaulted her during the incident. Law enforcement officers

responded to Gina’s call for assistance and cited Guadalupe for assault.

¶6 Gina went to a hospital later that day, and an emergency room report she

introduced at the hearing showed she had suffered a facial contusion. Guadalupe’s punch

also had cracked one of Gina’s teeth. In their testimony, the Acunas agreed that a heated

verbal exchange had occurred in the parking lot and that Hector had come between Gina

and Guadalupe in an effort to separate them. But the Acunas denied Gina had been

struck or insulted in the manner she had described.

3
Judge Frederic J. Dardis presided over the ex parte hearing. Judge David R.
Ostapuk presided over the subsequent hearing and issued the orders relevant to this
appeal.
3
¶7 The trial court, which had been involved in child-custody matters between

Gina and Hector in the past and had reviewed their dissolution file, stated at the hearing

that the parties shared joint legal custody of their children and had agreed to “split

physical custody arrangements.” According to Gina’s testimony, their then sixteen-year-

old daughter had been present at the meeting in the parking lot and was living with Gina

at the time of the incident. Although Gina did not provide any additional details at the

hearing about how the custodial interference had occurred, she restated the claim in her

petition that Hector had refused to return the daughter to Gina, which she believed to be

custodial interference. Hector denied that he had refused to return the daughter. By the

Acunas’ account, the daughter had been crying and trying to get behind the Acunas

because she was scared of Gina and did not want to go back to her, which then had

caused the situation to escalate.

¶8 The parties made no reference to firearms during the hearing. Nevertheless,

at its conclusion, the trial court stated as follows:

[T]he Court finds reasonable cause has been shown
that, absent the issuance of an Order of Protection, domestic
violence may occur and, thus, it is granting the Petition for an
Order of Protection.

....

[The] Court[,] having conducted a hearing at which the
parties are present, [finds] Brady now applies and, thus, the
Court will sign the appropriate Brady notice. . . .
Consequently, the Defendant, Hector, shall not possess,
purchase or receive firearms or ammunition for [the one-year]
period . . . of the Order.

4
¶9 Hector objected to this aspect of the order, pointing out that his

employment required him to carry a firearm. He also stated, “I didn’t do anything to

[Gina]. I didn’t touch her. . . . I just got in between my wife and . . . my ex-wife.” The

trial court refused to modify its order on these grounds, explaining:

This is one of the consequences, unfortunately, of the kind of
conduct that you and Guadalupe were engaged in on
January 22, 2012. . . . You were yelling and creating a
domestic violence situation, and your wife, I believe, the
credible evidence is, reached across you and punched your
ex-wife in the jaw. This is not a good thing for you to have
participated in.

When Guadalupe stated that Hector “didn’t participate,” the court responded, “Lesson

learned.”

¶10 In the order of protection the trial court entered the same day as the hearing,

the court did not restrict Hector’s right to possess firearms. Rather, the court left blank

the portion of the form related to firearms restrictions.4 In the separately filed Brady

notice, however, the court “disqualified” Hector “from purchasing or possessing a

firearm or ammunition” based upon his meeting the criteria set forth in 18 U.S.C.

§ 922(g)(8). Both documents were signed and entered on February 2, 2012. Hector filed

a notice of appeal from the “Order of Protection” on March 1, 2012.

4
The form includes an empty checkmark box next to the following text:
“FIREARMS. Because Defendant poses a credible threat of bodily injury to Plaintiff or
Protected Person(s), Defendant shall not possess, receive, or purchase firearms or
ammunition and shall surrender same within 24 hours of service to: ________.”
5
 Jurisdiction

¶11 Despite the curious formal aspects of the trial court’s separate orders, we

conclude we have jurisdiction over the present appeal and may reach the questions

Hector raises relating to the trial court’s firearms prohibition. Normally, an appeal from a

final “judgment,” as it is defined in Rules 54(a) and 58(a), Ariz. R. Civ. P., allows an

appellate court to review “all orders . . . assigned as error” in the proceeding. A.R.S.

§ 12-2102(A); see A.R.S. § 12-120.22(A). Here, the trial court prohibited Hector from

possessing firearms in the course of a protective-order proceeding that was commenced

in the superior court pursuant to A.R.S. § 13-3602(A). Furthermore, the court apparently

issued this order in response to Gina’s specific request. We therefore find the Brady

notice or disqualification order to be encompassed within the “judgment”—that is, the

signed order of protection—which is appealable to this court pursuant to A.R.S. § 12-

2101(A)(1) and Rules 9(A)(2) and 9(B)(2), Ariz. R. Prot. Order P. We additionally

conclude that the orders may be appealed under § 12-2101(A)(5)(b), as orders “[g]ranting

. . . an injunction.” Cf. LaFaro v. Cahill, 203 Ariz. 482, ¶¶ 7-8, 56 P.3d 56, 58-59 (App.

2002) (permitting appeal of injunction against harassment).

¶12 The fact that Hector’s notice of appeal refers only to the “Order of

Protection” rather than the Brady notice is inconsequential. Insofar as the order

prohibiting Hector from possessing firearms was included in the final judgment that is

appealable under § 12-2101(A)(1), no further specificity was required in the notice of

appeal. And assuming arguendo the Brady notice was an order appealable separately

under § 12-2101(A)(5)(b), any defect in the notice would be harmless because it neither

6
misled nor resulted in any prejudice to Gina. See Hill v. City of Phoenix, 193 Ariz. 570,

¶ 10, 975 P.2d 700, 702 (1999) (specifying test for determining sufficiency of notice of

appeal); see also Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 30, 972 P.2d 676, 683 (App.

1998) (observing notices of appeal liberally construed whenever possible). The Acunas

indicated at the hearing, in Gina’s presence, that they intended to appeal the trial court’s

order because the firearms restriction presented a problem for Hector’s continued

employment. Since then, Gina has filed documents in this court but has raised no

objection either to the notice of appeal or the opening brief. We therefore conclude the

notice is adequate and timely, and our jurisdiction is proper. See A.R.S. § 12-120.21(A).

Discussion

¶13 On appeal, Hector maintains the trial court did not make the necessary

findings to support a restriction of his gun rights under either Arizona law or the Brady

Act. He further contends the court did not follow the procedural rules relating to firearms

restrictions.

¶14 We review a trial court’s order granting an injunction for a clear abuse of

discretion. LaFaro, 203 Ariz. 482, ¶ 10, 56 P.3d at 59. A court abuses its discretion

when it commits an error of law in the process of reaching a discretionary conclusion or

“‘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.’” Hurd v. Hurd, 223

Ariz. 48, ¶ 19, 219 P.3d 258, 262 (App. 2009), quoting State ex rel. Dep’t of Econ. Sec. v.

Burton, 205 Ariz. 27, ¶ 14, 66 P.3d 70, 73 (App. 2003). “[W]e review the application of

7
Arizona and federal law to the facts de novo.” Bell v. Smitty’s Super Valu, Inc., 183 Ariz.

66, 67 n.1, 900 P.2d 15, 16 n.1 (App. 1995).

¶15 In general, a trial court may issue an order of protection if it finds

“reasonable cause” to believe “[t]he defendant may commit an act of domestic violence.”

§ 13-3602(E)(1). A different standard applies, however, when a defendant’s right to

possess firearms under the Second Amendment to the United States Constitution or under

article II, § 26 of the Arizona Constitution is implicated in the proceeding. When a court

issues an order of protection, it may prohibit the possession of firearms “[i]f the court

finds that the defendant is a credible threat to the physical safety of the plaintiff or other

specifically designated persons.” § 13-3602(G)(4).5 Firearms restrictions in the federal

Gun Control Act likewise are triggered by a protective order only if the order “includes a

finding that [the] person represents a credible threat to the physical safety of [the]

intimate partner or child,” 18 U.S.C. § 922(g)(8)(C)(i), or if the order “by its terms

explicitly prohibits the use, attempted use, or threatened use of physical force against

such intimate partner or child that would reasonably be expected to cause bodily injury.”

18 U.S.C. § 922(g)(8)(C)(ii).6

5
The preliminary seizure of firearms by law enforcement officials is addressed
separately by A.R.S. § 13-3601(C) through (F) and may last only six months.
6
A co-parent or former spouse falls within the definition of an “intimate partner”
under federal law. 18 U.S.C. § 921(a)(32). In Arizona, orders of protection are “limited
to parties with specified relationships between them.” Ariz. R. Prot. Order P. 1(B)(2)(d).
But the relationship element is not at issue in this case. See A.R.S. §§ 13-3601(A)(1),
(2), 13-3602(A), (C)(4).

8
¶16 Here, the order of protection concerns only Hector and Gina; no other

family members or protected persons are listed in it. The order is also a general no-

contact order that does not include any explicit prohibition of “the use, attempted use, or

threatened use of physical force” against Gina.7 Id.; see § 13-3602(G)(1) (permitting

court to “[e]njoin the defendant from committing a violation of one or more of the

offenses included in domestic violence”); see also Ariz. R. Prot. Order P. 6(C)(5)(a)

(allowing general no-contact orders). A no-contact order that lacks such a specific

provision does not result in firearms restrictions under § 922(g)(8)(C)(ii). United States

v. Sanchez, 639 F.3d 1201, 1205 (9th Cir. 2011). And there would be no basis for such

an express prohibition here.

¶17 The record is devoid of any evidence that Hector threatened or used force

against Gina. In fact, Gina’s testimony confirms he tried to prevent a physical altercation

even though he yelled at and insulted her during their argument. The record similarly

lacks any evidence that would support a finding Hector presented a “credible threat” to

Gina’s “physical safety” under § 13-3602(G)(4) or § 922(g)(8)(C)(i).8 Accordingly, the

trial court’s order prohibiting the possession of firearms lacked any evidentiary support in

the record.

7
The only exception provided is that Hector and Gina may communicate through
electronic mail or facsimile.
8
Assuming the record provides reasonable cause to believe Hector had engaged in
or would engage in custodial interference, see A.R.S. § 13-1302, which A.R.S. § 13-
3601(A) defines as domestic violence, the record provides no support for the additional
findings concerning physical safety required under subsection (G)(4) of § 13-3602 to
prohibit Hector from possessing firearms.
9
¶18 This dearth of evidence stems, in part, from the trial court’s failure to

follow the procedures set forth in our statutes and rules concerning firearms restrictions

in protective-order proceedings. Before a court may restrict the possession of firearms or

ammunition, Rule 6(C)(5)(d) provides that “[t]he judicial officer shall ask the plaintiff

about the defendant’s use of or access to weapons or firearms.” The purpose of the rule

is explained as follows: “This inquiry shall be made to determine if the defendant poses a

credible threat to the physical safety of the plaintiff or other protected persons.” Id.

Section 13-3602(G)(4) then specifies the mandatory procedures for transferring firearms

if a restriction is imposed: “If the court prohibits the defendant from possessing a

firearm, the court shall also order the defendant to transfer any firearm owned or

possessed by the defendant immediately after service of the order to the appropriate law

enforcement agency for the duration of the order.”

¶19 Here, the trial court did not follow these procedures or issue any transfer

order, although service of the order of protection occurred at the hearing. This suggests

the court overlooked the relevant laws; applied an incorrect legal standard, using the

“reasonable cause” test under § 13-3602(E) rather than the “credible threat” test under §

13-3602(G)(4); or based its decision on the erroneous legal assumption that firearms

restrictions automatically result from an order of protection. See Sanchez, 639 F.3d at

1204-05 (holding federal restrictions of firearms rights not triggered by general no-

contact order). Any one of these legal errors would account for the lack of evidence in

the record supporting the court’s order. But whatever the precise nature of the error here,

10
an abuse of discretion has been established on the record before us. See Hurd, 223 Ariz.

48, ¶ 19, 219 P.3d at 262.9

¶20 Although the trial court’s orders simply may represent an understandable

impulse to err on the side of caution and safety, an order of protection requires a court to

be attentive to the details of the evidence presented and the relationships of the parties.

The statutes and procedural rules concerning orders of protection expressly prohibit

petitions against more than one defendant, see § 13-3602(B)(3), and they require

specificity in both the allegations, see § 13-3602(C)(3), and determinations relating to

domestic violence. See Ariz. R. Prot. Order P. 6(C)(3)(a)(1) (requiring court to consider

“specific acts of domestic violence”). A separate reasonable cause determination is

required for the “plaintiff individually, any children with whom the defendant has a legal

relationship and any other person listed in the petition.” Ariz. R. Prot. Order P.

6(C)(3)(a)(2). Moreover, orders concerning firearms should be based on a court’s

assessment of credible threats of physical harm by the specific person whose rights would

be affected by the order. See § 13-3602(G)(4); Ariz. R. Prot. Order P. 6(C)(5)(d). Our

statutes do not authorize their use to discourage people from yelling or engaging in

“harassment” of the type proscribed by A.R.S. § 12-1809(R). Nor do our statutes

9
Hector also has challenged the trial court’s firearms order on the ground that the
order of protection did not expressly restrain him from harassing, stalking, or threatening
Gina or the children, which would be required by § 922(g)(8)(B) for the federal act to
apply. See Sanchez, 639 F.3d at 1204 (discussing “distinct sub-elements” for “court
order to meet the requirements of § 922(g)(8)”). Because we have resolved the appeal on
other grounds, we need not address this issue.
11
authorize the use of firearms restrictions to provide incentives for positive behavior or to

teach people a “[l]esson” about civilized conduct.

¶21 Despite Gina’s appearance in this court, she has not filed an answering

brief in this appeal. We may treat an appellee’s failure to file a brief as a confession of

reversible error as to any debatable issue. See Cardoso v. Soldo, ___ Ariz. ___, n.1, 277

P.3d 811, 813 n.1 (App. 2012); Guethe v. Truscott, 185 Ariz. 29, 30, 912 P.2d 33, 34

(App. 1995). In light of the legal errors we have found and the lack of evidence

supporting the firearms restrictions here, we exercise our discretion and deem Gina’s

failure to file a responsive brief as a confession that Hector is entitled to the relief he

seeks on appeal.

Disposition

¶22 As a remedy, Hector has requested that we vacate the Brady notice and

restore his constitutional right to possess firearms. He has not otherwise challenged the

order of protection. Accordingly, we vacate all orders restricting Hector’s firearms rights

in this proceeding, including the signed document entitled “Notice to Sheriff of Positive

Brady Indicator.” The remainder of the order of protection is affirmed.

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge*
*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of
Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15, 2012.

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