                                                                                                         FILED
                                                                                                 COURT OF APPEALS
                                                                                                      DIVISION 11
                                                                                                2015 JUAN 16 ;   i 8 : 30
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
                                                                                                           VA SL 1PNGTON
                                           DIVISION II

ALLYAH JASEM SALIM AYESH,                                                   No. 46004 -1 - II


                                  Respondent,


          v.



    JONATHAN MICHAEL BULLIS,                                       UNPUBLISHED OPINION


                                  Appellant.




         LEE, J. — Jonathan M. Bullis appeals the domestic violence protection order issued against


him, arguing that the evidence was insufficient to support the order' s issuance. Because substantial

evidence supports the superior court commissioner' s findings that Bullis placed the victim in fear

of imminent physical harm and that domestic violence occurred, we affirm the one -year protection


order.



                                                 FACTS


         Bullis and Allyah Ayesh were involved in a romantic relationship from July 2012 until

December 2013. 1 After the two had an argument in Bullis' apartment on December 1, 2013, Bullis

knocked their Christmas tree down. As Ayesh prepared to leave the apartment, she looked over at

Bullis and saw him huddled with a gun to his head. The two struggled for the gun, and Ayesh took

it from Bullis. Ayesh then took two additional firearms from the apartment and went to stay with

her sister.




1
    Contrary to the allegation in Ayesh' s appellate brief, the declaration containing this information
was part of the record   below. Report   of   Proceedings ( RP)   at   6, 32 -33, 98, 120.
No. 46004 -1 - II



          On the night of December 8, Bullis sent Ayesh approximately 150 text messages in which

he threatened to harm himself. She replied with a single text on December 9, asking Bullis to stop

contacting her because their relationship was over. Approximately 30 minutes later, he drove over

to her   sister' s   house    and    demanded his firearms.           He refused to leave despite repeated requests


from Ayesh' s        sister and     brother -in -law,   so   Ayesh   called   911.     Bullis was taken to the hospital for


a mental     health    evaluation and released.              On the evening of December 10, the information on

Ayesh' s cell phone was erased.


          On December 11, Ayesh filed a petition seeking a protection order against Bullis. Ayesh

alleged in the petition that she ended her relationship with Bullis after he threatened suicide by

putting a gun to his head, and that she had feared for her life while the two struggled for the gun.

She added that after she received an excessive number of texts from Bullis, she asked him to stop

contacting her,       whereupon        he   came   to her    residence and refused          to leave.   Ayesh also stated that


the information on her phone had been accessed and erased without her permission. Finally, she

noted that Bullis had thrown the Christmas tree, downloaded a tracking device on her phone, and

threatened to break the glasses on her face.


          The commissioner issued temporary protection orders until the petition could be heard. At

the hearing, Ayesh testified that she felt threatened for her own safety during the struggle for the

gun, explaining that the gun once was pointed at her abdomen. Ayesh also testified that the number

of   texts   from Bullis      made     her " very   afraid"    and   that   her fear   of   Bullis   was   ongoing.   Report of


Proceedings ( RP)        at   15.     Her sister testified that Ayesh was terrified when she came to stay on

December 1 and that the subsequent texts also upset her. She added that Ayesh was still afraid of


Bullis.
No. 46004 -1 - II



             Bullis testified that he knocked the Christmas tree over in frustration and acknowledged

that he      and     Ayesh had    struggled over   his firearm.   He denied threatening Ayesh but admitted

sending her approximately 150 texts with " extreme language" in an attempt to get her attention.
Clerk'   s   Papers    at   31. He also testified that the mental health professionals who evaluated him did


not find that he presented a danger to anyone. Bullis denied erasing the contents of Ayesh' s phone,

and his mother testified that she had possession of Bullis' phone when the information on Ayesh' s

phone was erased.




             After each party presented closing argument, the commissioner outlined the allegations in

the petition. The commissioner found that Ayesh' s allegations about Bullis' phone tracking and

his threat to break her          glasses were unfounded.       The commissioner then found that although the


parties disagreed about the details surrounding the struggle over the firearm, they agreed that such

a struggle had occurred:


             What is clear and what has been proven by preponderance of the evidence is that
             there   was a struggle. .   What is clear from the admissions of Mr. Bullis is that it
             involved a firearm, again something that I must be aware of in terms of increasing
             danger during an argument. Firearms simply should not be a part of an argument.
             And it is clear that you broke a Christmas tree.


RP at 120. The commissioner then turned to a discussion of the text messages:


                       The text messages that were described actually repeatedly by counsel as
             childish, I don' t believe that is the correct word for the nature of these text
             messages.    I believe the correct word for these text messages is frightening,
             disturbing, suicidal. They continued even after there was a request to stop. They
             were excessive. They were battering. You testified today that they were to elicit a
             response, any response.


RP at 120 -121.




                                                           3
No. 46004 -1 - II



         Although Ayesh had not been able to establish that Bullis erased the contents of her cell

phone,   the   commissioner     found that this     event explained          why   she   filed the   petition: "   She is getting

more and more scared. There are text messages, and then her phone gets erased completely around

midnight.      That   explains      why   she   came    in   on   the   date that     she   came     in."   RP     at   121.   The


commissioner addressed Bullis in concluding as follows:

          T] he actions that you took were absolutely frightening, threatening, intimidating,
         and   though there    is   no overt    threat to   kill her,   no   intent   on your part—      and I believe
         you when      you testify that     you   had   no   intent to   cause     her to fear for her life. You
         did cause her to fear for her life with your actions by bringing a firearm into an
         argument, by breaking the Christmas tree, by bombarding her with a barrage of text
         messages that vacillate from romantic to frightening to suicidal. That is domestic

         violence.




RP at 122. The commissioner entered a one -year domestic violence protection order. Bullis now


appeals, arguing that the evidence was insufficient to support the commissioner' s finding that his

actions constituted domestic violence.


                                                        ANALYSIS


         We review the findings supporting a protection order for substantial evidence, and we

review   the decision to issue       a   protection    order   for    abuse of     discretion. Scott v. Trans -Sys., Inc.,


148 Wn.2d 701, 707 -08, 64 P. 3d 1 ( 2003);                 Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P. 3d

50 ( 2002). " Substantial evidence is evidence that is sufficient to persuade a fair -minded person of


the truth   of the asserted premise."       Snyder v. Haynes, 152 Wn. App. 774, 779, 217 P. 3d 787 ( 2009).

A court abuses its discretion when its decision is " manifestly unreasonable, or based on untenable

grounds."      Mayer   v.   Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P. 3d 115 ( 2006). We defer to the


trier of fact on the persuasiveness of the evidence, witness credibility, and conflicting testimony:

State v. Ainslie, 103 Wn. App. 1, 6, 11 P. 3d 318 ( 2000).



                                                                  4
No. 46004 -1 - I1



          Chapter 26. 50 RCW authorizes the issuance of a protection order if the party seeking it

alleges "   the   existence of        domestic    violence and ... [   declares] the specific facts and circumstances


from    which relief          is   sought."    RCW 26. 50. 030( 1);      Hecker, 110 Wn.         App.   at   869.   Domestic


violence       includes "      the infliction of fear of imminent physical harm, bodily injury or assault,

between        family   or    household     members."       RCW 26. 50. 010( 1)(     a).   Because an order for protection


is   a civil   remedy, it      must    be   supported
                                                          by   a preponderance of     the evidence.     Reese v. Stroh, 128

Wn.2d 300, 312, 907 P. 2d 282 ( 1995);                   City of Tacoma v. State, 117 Wn.2d 348, 351 -52, 816 P. 2d

7 ( 1991).      This standard required the commissioner to find that it was more likely than not that

domestic violence occurred. Freeman v. Freeman, 169 Wn.2d 664, 673, 239 P. 3d 557 ( 2010).


          Bullis argues that the evidence was insufficient to show that he placed Ayesh in fear of


imminent physical harm and that the commissioner erred in finding the existence of domestic

violence.       He maintains that he never attempted to injure Ayesh during their struggle over his

firearm. Bullis also contends that he knocked the Christmas tree over in fatigue and frustration


but not in an attempt to harm Ayesh. He argues further that although the texts he sent may have

constituted harassment, they did not show that he placed Ayesh in fear of imminent physical harm.

Bullis argues further that the commissioner erred in disregarding the medical and psychiatric

findings that he presented no danger to Ayesh.


          The fact that Bullis was released after his mental health evaluation does not demonstrate


that he did not place Ayesh in fear of physical harm. Both Ayesh and her sister testified that Bullis'


actions made           Ayesh       fear for her   own personal      safety.   The credibility of these witnesses is not

reviewable        by   this   court.   Spence     v.   Kaminski, 103 Wn.      App.   325, 333, 12 P. 3d 1030 ( 2000).
No. 46004 -1 - II



         In addition to considering the testimony from Ayesh and her sister, the commissioner

reviewed    Bullis'   many text   messages and   described them       as   frightening   and   disturbing. 2 Other

evidence showed that Bullis came to Ayesh' s residence after she asked him to stop contacting her

and would not leave when told to do so. As the trial court observed, Bullis succeeded in placing

Ayesh in fear for her      physical   safety   whether     he intended to     or not.    We conclude that the


commissioner' s findings that Bullis placed Ayesh in fear of imminent harm and engaged in


domestic violence are supported by a preponderance of the evidence and affirm the protection

order.




         We affirm.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




    We concur:




2
    Exhibit 2,   which contained   these messages,   is   not part of the appellate record.
