                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                                MARC KROON,
                                Petitioner/Appellee,

                                         v.

                               TRICIA KROON,
                              Respondent/Appellant.

                            No. 1 CA-CV 15-0719 FC
                                  FILED 7-21-2016


            Appeal from the Superior Court in Maricopa County
                           No. FC 2015-053099
            The Honorable Richard Albrecht, Judge Pro Tempore

                                   VACATED


                                    COUNSEL

Best Law Firm, Phoenix
By Cynthia Best, Stephen Vincent, Randi Burggraff, Robert Hendricks
Counsel for Respondent/Appellant

DeRoon & Seyffer, Phoenix
By Richard R. Seyffer, Charles R. Seyffer
Counsel for Petitioner/Appellee
                           KROON v. KROON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Maurice Portley joined.


D O W N I E, Judge:

¶1            Tricia Louise Kroon (“Wife”) appeals from the superior
court’s order upholding an order of protection issued against her, as well
as from the simultaneously issued Notice to Sheriff of Brady Indicator
(“Brady Notice”).1 For the following reasons, we vacate the order of
protection and the Brady Notice.

                FACTS AND PROCEDURAL HISTORY

¶2            Marc Kroon (“Husband”) and Wife were in the midst of
divorce proceedings when Husband petitioned for an order of protection,
alleging that Wife had entered his residence while he was out of town and
removed property. The superior court issued an ex parte order of
protection and later held an evidentiary hearing to determine whether the
order should remain in place.2

¶3             Wife admitted entering the home while Husband was away,
gaining access through a dog door. Although Wife had moved from the
community-owned residence several months earlier, she took the position
that as a joint owner of the property, with no court order granting either
party exclusive use, she was legally entitled to enter the home and retrieve
her personal property. Wife testified that due to Husband’s history of




1      The Brady Notice relates to notification requirements under the
federal Handgun Violence Prevention Act. See 18 U.S.C. § 922(g)(8)
(firearm possession “shall be unlawful” for a person subject to a court
order, issued after a hearing, that prohibits the use or threat of physical
force that would reasonably be expected to cause bodily harm).
2      Wife had obtained an order of protection against Husband that the
court considered at the same evidentiary hearing. Both orders were
upheld.



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                           KROON v. KROON
                           Decision of the Court

domestic violence, she waited until he was out of town “[f]or safety
reasons.”3

¶4            After Wife entered the home, she was confronted by
Husband’s girlfriend, and both women called the police. Husband
telephonically advised responding officers that he “did not want any
property removed from the residence due to the ongoing divorce
process,” but the officers nevertheless gave Wife permission to remove the
property.

¶5            At the conclusion of the hearing, the superior court found by
a preponderance of the evidence that Wife had committed domestic
violence by trespassing and affirmed the order of protection. Wife timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-2101(A)(1), (A)(5)(b).

                              DISCUSSION

¶6            We will uphold an order of protection absent an abuse of
discretion by the issuing court. See Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14
(App. 2012). “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.” Id.
We review questions of law de novo. Michaelson v. Garr, 234 Ariz. 542, 544,
¶ 5 (App. 2014).

¶7           An order of protection may issue if there is reasonable cause
to believe a person has committed an act of domestic violence or may
commit such an act. A.R.S. § 13-3602(E). Here, the superior court found
that Wife had committed “domestic violence . . . that being trespassing[.]”
Criminal trespass is a qualifying domestic violence offense for purposes of
issuing orders of protection. See A.R.S. § 13-3601(A).

¶8            The criminal trespass statute        relevant to residential
structures provides, in pertinent part:

      A person commits criminal trespass in the first degree by
      knowingly:


3      Husband had been convicted previously of two criminal offenses
involving Wife as the victim.



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                            Decision of the Court

       Entering or remaining unlawfully in or on a residential
       structure.

A.R.S. § 13-1504(A)(1). Construing the language of our criminal trespass
statutes, this Court has held that the alleged trespasser must be aware of
the unlawfulness of her actions, stating:
       Regardless of the definition of “knowingly,” the definition of
       criminal trespass itself requires that the person knowingly
       enter or remain unlawfully. Where the criminal statute itself
       makes this requirement, that is, that the defendant know his
       entry or remaining was unlawful, it is still an essential
       element of the crime even though no longer required for the
       mental state of “knowingly.”
State v. Kozan, 146 Ariz. 427, 429 (App. 1985).

¶9           According to Wife, she “believed—and still believes—she is
the owner of the property, and she had a right to be there.” Wife therefore
contends the superior court erred by relying on the predicate offense of
criminal trespass. Based on the evidence presented at the hearing, we
agree.

¶10           Wife testified repeatedly that she believed she had a legal
right to enter the house. No contrary evidence was offered. It is
undisputed that Wife was a co-owner of the residence and that no court
order forbade her from occupying or entering the premises. The police
report regarding the incident states that Wife removed property “from her
residence” and that officers advised her that “she does have rights to the
house and that, if she wanted to take just the few items she wanted as
sentimental possessions, [they] would stand by to assure the peace was
preserved.” Furthermore, we are faced with an order of protection —
which requires proof of a predicate domestic violence offense — not an
injunction against harassment, which can issue without such a proven
offense. See A.R.S. § 12-1809(S) (Injunction against harassment may issue
if defendant committed acts directed at the plaintiff “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.”).

¶11          The superior court articulated no basis for upholding the
order of protection against Wife other than criminal trespass. See Rule




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                          Decision of the Court

38(h), Arizona Rules of Protective Order Procedure4 (“At the conclusion of
the hearing, the judicial officer must state the basis for continuing,
modifying, or revoking the protective order.”). Because the record did not
establish that predicate domestic violence offense, we vacate the order of
protection and the simultaneously issued Brady Notice. See 18 U.S.C. §
922(g)(8) (Brady firearm prohibitions apply only if person is subject to a
qualifying court order).

                            CONCLUSION

¶12           We vacate the order of protection against Wife. In the
exercise of our discretion, we deny both parties’ requests for attorneys’
fees incurred on appeal.




                               :AA




4     Renumbered from Rule 8(G) effective January 1, 2016.



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