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N.J.D. v. R.O.D.

Court of Appeals of Missouri, Eastern District, Third Division

July 16, 2019

N.J.D., Petitioner/Appellant,
R.O.D., Respondent/Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Lynne R. Perkins

          SHERRI B. SULLIVAN, P.J.


         This is an appeal from the motion court's denial of N.J.D.'s (Appellant) petition seeking a protective order against R.O.D. (Respondent). We reverse the judgment of the motion court and remand with instructions to grant Appellant's petition and enter a full protective order on her behalf against Respondent.

         Factual and Procedural Background

         Appellant and Respondent were coworkers. In April 2017, a sexual encounter occurred in Appellant's home between her and Respondent that Appellant characterized as a sexual assault. At the hearing on Appellant's petition seeking a protective order against Respondent, Appellant declined to provide details of the occurrence other than stating it was a "sexual assault," and she was "intoxicated" and "coerced."

         Thereafter, Respondent began harassing Appellant both at and outside of their work, making unwanted sexual advances, and repeatedly asking Appellant to be his "side chick." Respondent asked several times to see Appellant outside of work, but Appellant refused.

         In November 2017, Respondent invited Appellant to what she believed was a meeting of coworkers at a bar. When she arrived, she discovered she and Respondent were the only ones there. Respondent engaged Appellant in conversation, pulling out his cell phone to show Appellant pictures of himself posing with guns. Respondent claimed he was going on a hunting trip, but Appellant did not recognize the guns as being types used for hunting. At the hearing on Appellant's petition, Appellant testified that she felt Respondent intended to threaten her by isolating her and showing her pictures of himself with guns, and so she had reported the incident to her supervisor at work.

         In December 2017, Appellant and Respondent attended a goodbye party for two of their coworkers. This party took place at a restaurant. Appellant testified she did not know Respondent would be attending, and if she had known she would not have gone.

         As Appellant sat at a table, Respondent approached and sat opposite her. He asked why she was being cold towards him. Appellant replied she and Respondent were not friends, and she wanted nothing to do with him. Respondent replied loudly, within earshot of other coworkers, "You've been pissed off ever since you sucked my dick." Appellant asked what he meant, and Respondent shouted, "You've been exposed. Exposed. Exposed. Exposed." With this, Appellant picked up a beer from the table and dumped it on Respondent's head. A coworker intervened and escorted Respondent out of the restaurant.

         After Respondent left the restaurant, Appellant asked for her bill. As she was paying, Respondent came back into the restaurant, having removed his beer-soaked shirt. Respondent rushed towards Appellant, grabbed her by the neck, and began strangling her. He did not release his grip on Appellant's neck until coworkers pulled him off and escorted him back out of the restaurant. Appellant testified she was terrified as Respondent strangled her. The next day Appellant sought medical attention for her throat, as it still hurt and made a clicking sound when she swallowed. A doctor diagnosed Appellant with a possible fractured larynx. There were also marks on her neck made by Respondent's hands.

         On January 3, 2018, Appellant filed for an order of protection, alleging Respondent had caused or attempted to cause her physical harm, coerced her, stalked her, harassed her, and sexually assaulted her. At the hearing, Appellant testified as to what had occurred between her and Respondent. Respondent was present but offered no evidence on his own behalf. When asked by the motion court if Respondent intended to testify, counsel for Respondent replied he intended to invoke his Fifth Amendment rights. Respondent cross-examined Appellant, mainly about the incident in the restaurant during which Respondent choked Appellant. Through cross-examination, Respondent attempted to show Appellant had provoked Respondent into strangling her.

         After the hearing, the motion court denied Appellant's petition for a full order of protection. The motion court found there was insufficient evidence presented by Appellant to justify such an order. The motion court did not make findings of fact or conclusions of law. This appeal follows.

         Point ...

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