S.B. v. Pfeifler , 26 Neb. Ct. App. 448 ( 2018 )

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S.B. v. PFEIFLER
Cite as 26 Neb. App. 448S.B., appellee, v. Paul Pfeifler, appellant.
___ N.W.2d ___
Filed October 23, 2018. No. A-18-397.
1. Judgments: Injunction: Appeal and Error. A protection order is anal-
ogous to an injunction. Accordingly, the grant or denial of a protection
order is reviewed de novo on the record.
2. Judgments: Appeal and Error. In a de novo review, an appellate court
reaches conclusions independent of the factual findings of the trial
court. However, where the credible evidence is in conflict on a material
issue of fact, the appellate court considers and may give weight to the
circumstances that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another.
3. Injunction: Proof. A party seeking an injunction must establish by
a preponderance of the evidence every controverted fact necessary to
entitle the claimant to relief.
4. Sexual Assault: Proof. A party seeking a sexual assault protection order
pursuant to Neb. Rev. Stat. § 28-311.11 (Supp. 2017) must prove a
sexual assault offense by a preponderance of the evidence.
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Affirmed.
Seth W. Morris, of Berry Law Firm, for appellant.
David W. Watermeier, of Morrow, Poppe, Watermeier &
Lonowski, P.C., L.L.O., for appellee.
Pirtle, Bishop, and A rterburn, Judges.
Bishop, Judge.
S.B. was granted a sexual assault protection order against
Paul Pfeifler by the district court for Lancaster County. Pfeifler
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Cite as 26 Neb. App. 448claims the evidence was insufficient to support granting the
protection order; we affirm.
BACKGROUND
S.B. filed a “Petition and Affidavit to Obtain Sexual Assault
Protection Order” (petition) on September 29, 2017, in the
district court pursuant to Neb. Rev. Stat. § 28-311.11 (Supp.
2017). She claimed that after a work event on September 22,
she and a “group of girls” went out for drinks. They were with
two doctors initially, one who joined them at their table and
another who left. S.B alleged that she “got up to get a drink
from the bar and upon returning to the table, [Pfeifler], who
[she] barely [knew], smacked [her] butt while [she] was set-
ting [her] drink down on the table.” S.B. “was shocked and
offended that this doctor, who [she] didn’t know, assaulted
[her] in this way in front of [her] co-workers.” Since she
and Pfeifler are part “of the same practice group” and have
to attend weekend seminars at times where she would see
Pfeifler, S.B. was “concerned that [Pfeifler would] continue
this kind of behavior.” An “Order to Show Cause Sexual
Assault” was entered by the district court setting the matter
for hearing on October 6. On that day, Pfeifler personally
appeared and indicated he had been served the day before; he
requested a continuance, which was granted.
On October 24, 2017, S.B., who was not represented by
an attorney, and Pfeifler, who was now represented by an
attorney, appeared for the hearing. S.B.’s petition was marked
as an exhibit and received by the court. S.B. was sworn in to
testify and was asked if the allegations contained in the peti-
tion were true; she replied, “Yes.” Pfeifler was then sworn
in to testify, and the court proceeded to ask him questions.
The court asked Pfeifler to look at the paragraph of the peti-
tion which contained the allegations related to the incident
on September 22 and to tell the court what was true in that
statement. Pfeifler answered, “Yes, we were with a group
of people. Yes, we were in a booth. No, I did not slap her
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Cite as 26 Neb. App. 448or smack her.” When asked if he touched S.B. in any way,
Pfeifler responded, “Yes. I did bump her with the back of my
hand.” He explained:
We were at a bar. It was a tight, tight booth. She was
shuffling between. I was watching the entertainment that
was on the bar as well as in the aisle. She had stopped in
front of me to put down drinks. I reached forward with
the back of my hand and gave her a slight bump with the
back of my hand — I’m not exactly sure where I con-
tacted her, to my recollection — so that way she would
move so I could continue watching the entertainment at
the bar.
The court asked, “So it was your intent to touch [S.B.]?”
Pfeifler responded, “Yes, I did bump her to have her move out
of the way.” Pfeifler did not recall anything being said and
stated that it “was the only contact or communication that we
had that evening.” He further testified:
[W]e were at the bar for more than an hour following
such incident, and nothing was brought to my attention
until the next morning that there was even a problem.
Upon that I did apologize to [S.B.] And, I quote, she
accepted my . . . apology and said, “Man, you are good.”
The court asked if Pfeifler had anything else he wanted to tell
the court about what happened; he responded, “That is it.” The
court asked S.B. if she had any questions to ask Pfeifler; she
did not.
The court then proceeded to question S.B., asking initially
whether there was anything more she wanted the court to
know. She replied, “I’d say there is absolutely no mistaking
between a bump and what he did. It was a full-on slap, and
there’s no mistaking it.” S.B. said she was “not the one who
actually saw it,” but, rather, “[t]wo other girls saw it.” She
continued, “I was in shock. I didn’t even know what happened.
One of the girls told me, ’cause there was two girls who saw it.
I didn’t even see it. I just felt it.” She said the “girls” told her
that “[Pfeifler] slapped [her] butt.” According to S.B., “There
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Cite as 26 Neb. App. 448was no one else in [her] radius besides [Pfeifler], and he was
right behind [her] when [she] was putting [her] drink on the
table.” S.B. said she “tried to chill out for a little bit,” finished
her drink, and then left. She was “in shock” and did not say
anything to Pfeifler at the time. She went back to her hotel
and then “spoke with [her] boss in the morning, who spoke
with [Pfeifler].”
S.B. said Pfeifler apologized to her the “Saturday after
the meetings,” and she accepted his apology, but she “prob-
ably would have said just about anything to get him away
from [her].” According to S.B., Pfeifler said, “‘I’m sorry if I
offended you or made you feel uncomfortable in any way.’”
S.B. said, “He didn’t own up to what he did, but he did apolo-
gize . . . .” She claimed her boss told Pfeifler that he was “to
not come anywhere near [S.B.]” and that he needed to “write
a letter to the office apologizing.” S.B. said she “made it very
clear to [her] doctor and the girls who saw that [she did] not
want this man near [her], and he still went against what [her]
boss said and came up to [her] after the meeting.” When
the court finished questioning S.B., the court asked Pfeifler
additional questions about the booth in the bar and how he
was seated there. The court asked Pfeifler (not his attorney)
whether he had any questions of S.B. He did not. The court
proceeded to ask S.B. additional questions about the type
of bar they were at, and she indicated there was music and
dancing in the aisle by patrons and “workers there dancing as
well, like, on the bar and stuff.” Pfeifler testified that it was
a “night club” where the bartenders and waitresses “are all
dressed in various skimpy outfits” and “[t]hey dance on the
bar.” Pfeifler claimed he “was watching the girls dancing on
the bar.”
The court then asked, “Anything else you want to say?”
Pfeifler’s attorney responded, “No.” The court immediately
thereafter stated on the record that it found by a “preponder-
ance of the evidence that the sexual assault protection order
should be granted.”
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Cite as 26 Neb. App. 448A “Sexual Assault Protection Order (After Hearing, No
Ex Parte Order Issued)” was entered by the district court on
October 24, 2017. The order states that Pfeifler is “enjoined
from imposing any restraint upon the person or liberty of the
protected party [S.B.]”; “enjoined from harassing, threatening,
assaulting, molesting, attacking, or otherwise disturbing the
peace of [S.B.]”; and “enjoined from telephoning, contacting,
or otherwise communicating with [S.B.]” The protection order
“is granted for a period of one year from the date of this order”
unless renewed or otherwise dismissed or modified by order of
the court.
Pfeifler filed a motion for new trial on October 31, 2017,
and following a hearing, the district court entered an order
on April 10, 2018, denying Pfeifler’s motion. Pfeifler appeals
from that order and the order granting the sexual assault pro-
tection order.
ASSIGNMENTS OF ERROR
Pfeifler claims, restated, that there was insufficient evidence
to support a sexual assault protection order because there was
insufficient evidence to prove that a sexual assault occurred,
including that S.B. failed to prove the “element of sexual
gratification.”
STANDARD OF REVIEW
[1] A protection order is analogous to an injunction.
Accordingly, the grant or denial of a protection order is
reviewed de novo on the record. Mahmood v. Mahmud, 279
Neb. 390, 778 N.W.2d 426 (2010).
[2] In such de novo review, an appellate court reaches
conclusions independent of the factual findings of the trial
court. However, where the credible evidence is in conflict on
a material issue of fact, the appellate court considers and may
give weight to the circumstances that the trial judge heard and
observed the witnesses and accepted one version of the facts
rather than another. Torres v. Morales, 287 Neb. 587, 843
N.W.2d 805 (2014).
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Cite as 26 Neb. App. 448ANALYSIS
Sexual assault protection orders provide a new avenue of
protection for victims of a sexual assault. Last year, the
Nebraska Legislature enacted § 28-311.11, which became
effective on August 24, 2017. It states, in relevant part:
(1) Any victim of a sexual assault offense may file a
petition and affidavit for a sexual assault protection order
as provided in subsection (3) of this section. Upon the
filing of such a petition and affidavit in support thereof,
the court may issue a sexual assault protection order
without bond enjoining the respondent from (a) imposing
any restraint upon the person or liberty of the petitioner,
(b) harassing, threatening, assaulting, molesting, attack-
ing, or otherwise disturbing the peace of the petitioner, or
(c) telephoning, contacting, or otherwise communicating
with the petitioner.
(2) The petition for a sexual assault protection order
shall state the events and dates of acts constituting the
sexual assault offense.
(3) A petition for a sexual assault protection order shall
be filed with the clerk of the district court and the pro-
ceeding may be heard by the county court or the district
court as provided in section 25-2740.
(4) A petition for a sexual assault protection order
may not be withdrawn except upon order of the court.
A sexual assault protection order shall specify that it is
effective for a period of one year unless renewed pursuant
to subsection (11) of this section or otherwise dismissed
or modified by the court. Any person who knowingly
violates a sexual assault protection order after service or
notice . . . shall be guilty of a Class I misdemeanor except
that for any second violation of a sexual assault protec-
tion order within a twelve-month period, or any third or
subsequent violation, whenever committed, such person
shall be guilty of a Class IV felony.
....
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Cite as 26 Neb. App. 448(7) A sexual assault protection order may be issued
or renewed ex parte without notice to the respondent if
it reasonably appears from the specific facts shown by
affidavit of the petitioner that irreparable harm, loss, or
damage will result before the matter can be heard on
notice. . . .
....
(11) An order issued under subsection (1) of this sec-
tion may be renewed annually. To request renewal of the
order, the petitioner shall file a petition for renewal and
affidavit in support thereof at least forty-five days prior
to the date the order is set to expire. . . .
(12) For purposes of this section, sexual assault
offense means:
(a) Conduct amounting to sexual assault under section
28-319 or 28-320 or sexual assault of a child under sec-
tion 28-319.01 or 28-320.01 or an attempt to commit any
of such offenses; or
(b) Subjecting or attempting to subject another person
to sexual contact or sexual penetration without his or her
consent, as such terms are defined in section 28-318.
Neb. Rev. Stat. § 28-319 (Reissue 2016) states that first degree
sexual assault occurs when any person “subjects another per-
son to sexual penetration” without consent (or under other
circumstances not relevant here). There is no claim of sexual
penetration in the present matter. Neb. Rev. Stat. §§ 28-319.01and 28-320.01 (Reissue 2016) pertain to sexual assault of a
child; these sections are also not relevant here. However, rel-
evant to the present case, Neb. Rev. Stat. § 28-320 (Reissue
2016) states that second and third degree sexual assault occurs
when any person “subjects another person to sexual contact”
without consent of the victim or when the victim was physi-
cally or mentally incapable of resisting or appraising the nature
of his or her conduct. As applied here, the question is whether
the facts support that Pfeifler subjected or attempted to subject
S.B. to sexual contact without her consent.
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S.B. v. PFEIFLER
Cite as 26 Neb. App. 448According to Neb. Rev. Stat. § 28-318(5) (Reissue 2016),
“[s]exual contact” means, in relevant part:
[T]he intentional touching of the victim’s sexual or inti-
mate parts or the intentional touching of the victim’s
clothing covering the immediate area of the victim’s
sexual or intimate parts [genital area, groin, inner thighs,
buttocks, or breasts, see § 28-318(2)]. Sexual contact
shall include only such conduct which can be reasonably
construed as being for the purpose of sexual arousal or
gratification of either party.
Pfeifler described the place he and S.B. were at as a “night
club.” He said the bartenders and waitresses were “all dressed
in various skimpy outfits” and “[t]hey dance[d] on the bar.”
Pfeifler testified that he “was watching the girls dancing on the
bar,” and he admitted to touching S.B. Pfeifler said that “[S.B.]
had stopped in front of [him] to put down drinks” and that he
“reached forward with the back of [his] hand and gave her a
slight bump with the back of [his] hand.” He said he “did bump
her to have her move out of the way,” but he was not sure
where he touched her. However, S.B. said there was “abso-
lutely no mistaking between a bump and what he did. It was a
full-on slap, and there’s no mistaking it.” She said she did not
see Pfeifler do this, but she “just felt it.” She said the “girls”
told her that “[Pfeifler] slapped [her] butt.” Further, accord-
ing to S.B., “There was no one else in [her] radius besides
[Pfeifler], and he was right behind [her] when [she] was put-
ting [her] drink on the table.” She was “in shock” and did not
say anything to Pfeifler at the time. She spoke with her boss,
who then spoke with Pfeifler. Pfeifler subsequently apologized
to S.B. According to S.B., he told her, “‘I’m sorry if I offended
you or made you feel uncomfortable in any way.’”
[3,4] A protection order is analogous to an injunction. Elstun
v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (1999). A party
seeking an injunction must establish by a preponderance of
the evidence every controverted fact necessary to entitle the
claimant to relief. See Abboud v. Lakeview, Inc., 237 Neb. 326,
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Cite as 26 Neb. App. 448466 N.W.2d 442 (1991). Accordingly, a party seeking a sexual
assault protection order pursuant to § 28-311.11 must prove a
sexual assault offense by a preponderance of the evidence.
Pfeifler claims there “was no evidence adduced at the hear-
ing that shows a clear intent of Pfeifler’s actions.” Brief for
appellant at 5. He claims that “[S.B.] did not see who ‘slapped’
or ‘smacked’ her” and that Pfeifler “did not intentionally con-
tact the sexual or intimate parts of [S.B.], [and] any contact
that occurred was unintentional in an attempt to get a better
view of the entertainment at the bar.” Id. at 6. He claims this
evidence falls short of establishing a sexual assault by a pre-
ponderance of the evidence. However, as noted above, S.B.
testified to feeling the slap on her buttocks, and the two “girls”
saw it happen. And nobody else but Pfeifler was near S.B. at
the time. Even Pfeifler admits that S.B. stopped in front of him
to put down drinks when the contact occurred. In summary,
there was no dispute there was physical contact when Pfeifler
intentionally touched S.B. However, the district court was pre-
sented with competing testimony as to the precise nature of
the contact. Pfeifler admitted to intentional contact but claimed
that it was a “slight bump” and that he was not sure where the
contact occurred, whereas S.B. claimed it was an intentional
slap on her buttocks.
Even on de novo review, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers and may give weight to the circumstances that the trial
judge heard and observed the witnesses and accepted one ver-
sion of the facts rather than another. Torres v. Morales, 287
Neb. 587, 843 N.W.2d 805 (2014). We apply this standard here
and defer to the district court’s acceptance of S.B.’s version of
the facts over Pfeifler’s version. There is sufficient evidence to
support that Pfeifler slapped S.B. on her buttocks.
However, Pfeifler also claims there was “no evidence intro-
duced that Pfeifer seemed sexually aroused by the contact.”
Brief for appellant at 7. He claims his conduct was “for the
sole purpose of moving [S.B.] out of the way so that he could
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Cite as 26 Neb. App. 448see the entertainment at the bar.” Id. He argues that there were
no witnesses who testified about Pfeifler’s demeanor after the
contact occurred and no evidence that Pfeifler “seemed sex­
ually aroused by the contact.” Id. He claims, “To the contrary,
all evidence adduced at the hearing points to the contact being
accidental in nature.” Id. He contends proof of sexual gratifica-
tion is “a condition precedent necessary to reach the ultimate
conclusion that [S.B.] was the victim of sexual contact, and
therefore the District Court erred in granting the sexual assault
protection order.” Id.“Whether there is sufficient evidence to prove sexual arousal
or gratification (which, by necessity, must generally be inferred
from the surrounding circumstances) is extraordinarily fact
driven.” State v. Brauer, 287 Neb. 81, 94, 841 N.W.2d 201,
210 (2013). Even sexual contact done for the defendant’s
amusement can be reasonably construed as being for the pur-
pose of sexual arousal or gratification. State v. Osborne, 20
Neb. App. 553, 826 N.W.2d 892 (2013). See State v. Charron,
226 Neb. 871, 415 N.W.2d 474 (1987) (act of defendant who
grabbed woman from behind, pressed forcefully in her vaginal
area, and then walked away, laughing and bobbing his head,
were circumstances from which trial court could find that
defendant’s conduct was for purpose of his sexual arousal or
gratification).
In its order denying Pfeifler’s motion for new trial, the dis-
trict court addressed Pfeifler’s argument that the evidence did
not establish sexual arousal or gratification. The court noted,
“According to [Pfeifler], the contact was accidental and was
not made for the purpose of sexual arousal or gratification.”
The district court, quoting § 28-318(5), properly concluded
that the conduct need only be “‘reasonably construed as being
for the purpose of sexual arousal or gratification.’” (Emphasis
omitted.) The court then summarized the evidence, as we have
already set forth above, and stated that it “found [S.B.] cred-
ible and the evidence to be sufficient to grant the sexual assault
protection order.”
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Cite as 26 Neb. App. 448The district court did not specifically say that Pfeifler’s
conduct would be reasonably construed as being for the pur-
pose of sexual arousal or gratification, but as noted by S.B.,
the court “properly considered all attendant facts of the case
and properly determined that [Pfeifler’s] actions, in that setting
and under those circumstances, rose to the level of being for
the purpose set forth in the applicable statute.” Brief for appel-
lee at 12. In this court’s de novo review, we have considered
the circumstances surrounding the contact and conclude that
a slap on a woman’s buttocks in a nightclub can be reason-
ably construed as being for the purpose of sexual arousal
or gratification.
CONCLUSION
We affirm the district court’s entry of a sexual assault pro-
tection order in this case.
A ffirmed.