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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McComas v. Kirn (01/28/2005) sp-5865

McComas v. Kirn (01/28/2005) sp-5865

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


MICAH McCOMAS,           )
                              )    Supreme Court No. S-11089
             Appellant,            )
                              )    Superior Court No. 3AN-02-1700
CI
     v.                       )
                              )    O P I N I O N
HEATHER KIRN,                 )
                              )    [No. 5865 - January 28, 2005]
             Appellee.             )
                              )
                              


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:   Micah  E.  McComas,  pro   se,
          Greenville,  South Carolina.  Heather  McCoy,
          pro se, Anchorage.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION

          Heather   Kirn  petitioned  for  a  long-term  domestic

violence  protective order against her ex-husband, Micah McComas.

The  superior court granted Kirns request on September 10,  2002.

McComas  now appeals the order, arguing that the superior  courts

findings  of  fact  and conclusions of law  were  erroneous.   We

affirm,  because  we  conclude that the superior  court  did  not

clearly  err  in  finding  that McComas  had  committed  a  crime

involving  domestic violence against Kirn, that the actions  that

supported  the order were not too remote in time,  and  that  the

order  was  not  barred  by denial of an earlier  request  for  a

protective order.

II.  FACTS AND PROCEEDINGS

          Heather Kirn and Micah McComas married in 1998.   Their

son  was  born three months later.  In 1999 McComas was  arrested

and incarcerated on theft-related charges.  The parties separated

soon  after  the  arrest, and in September 2000  Kirn  filed  for

divorce.

          McComas  was  paroled to the Akeela House (a  substance

abuse  treatment center) on October 1, 2000.  A few  days  later,

McComas left the Akeela House against court orders.  On October 9

he  went  to Kirns workplace to discuss the divorce.  The  police

were summoned and McComas fled to their sons day care.  When  the

childs  caretaker  informed him that Kirns mother  had  his  son,

McComas drove to his mother-in-laws home and demanded to see  his

child.  After his mother-in-law denied his request, he broke  two

windows  in her vehicle.  Kirn petitioned for ex parte and  long-

term  protective  orders  that day.  The district  court  granted

Kirns  request for an ex parte protective order and  consolidated

the domestic violence case with the parties pending divorce case.

That same night, October 9, McComas was arrested and incarcerated

for having left the Akeela House and for criminal mischief.

          The  divorce  hearing  was held on  October  25,  2000.

Superior  Court  Judge Stephanie Joannides entered  a  decree  of

divorce on December 15, 2000, nunc pro tunc to October 25,  2000.

The  divorce  decree dissolved the protective order  but  ordered

McComas not to telephone or otherwise contact Kirn directly.  The

decree awarded primary physical custody and sole legal custody of

the parties son to Kirn.  McComas was still incarcerated when the

decree was entered.

          On  July  23, 2002, one week before McComas was  to  be

released  from custody, Kirn again petitioned the  court  for  ex

parte  and long-term protective orders against McComas.  Superior

Court  Judge  Sharon Gleason issued an ex parte protective  order

that day and scheduled a hearing on Kirns request for a long-term

protective order for August 7.  McComas was released on July  31,

but  was rearrested the next day for violating the conditions  of

his  parole  by failing a drug test.  Because McComas  could  not

attend  the August 7 hearing, the superior court rescheduled  the

hearing for September 10.  It also issued an order extending  the

ex parte protective order and denying McComas visitation with his

son.   McComas attended the September 10, 2002 hearing.  Superior

Court Judge William F. Morse conducted the hearing, granted Kirns

request   for  a  long-term  protective  order,  and   reinstated

supervised  visitation  per  the existing  order  issued  in  the

divorce proceeding.  McComas appeals.1

III. DISCUSSION

     A.   Standard of Review

          We  review the factual findings supporting issuance  of

the  protective  order for clear error.2  A finding  of  fact  is

clearly  erroneous  when  the reviewing  court  is  left  with  a

definite  and  firm conviction that the trial court  has  made  a

mistake.3   We  review  the superior courts interpretation  of  a

statute de novo.4  We apply our independent judgment to issues of

res judicata and collateral estoppel.5

     B.   McComass Appeal Is Not Moot.
          
          We  first consider whether the appeal is moot.  McComas

asks  us to vacate the September 2002 long-term protective order.

Most  of the protective orders provisions expired in March 2003.6

But  the provision prohibiting McComas from threatening to commit

or committing domestic violence, stalking, or harassment7 remains

in  effect  indefinitely.8  The protective order  is  permanently

filed  in  a central registry of protective orders.9  If  McComas

violates  the quoted prohibition, he will be in violation  of  AS

11.56.740(a)(1),  and  subject  to  mandatory  arrest  under   AS

18.65.530(a)(2).10  McComass appeal is therefore not moot.11

     C.   The  Superior Court Did Not Clearly Err in Finding that
          McComas   Had  Committed  a  Crime  Involving  Domestic
          Violence.
          
          Alaska  Statute  18.66.100(b) gives the superior  court

          authority to issue a protective order if it finds by  a

preponderance of the evidence that the respondent has committed a

crime  involving  domestic violence against the  petitioner.   On

September 10, 2002 the superior court found by a preponderance of

the  evidence that McComas had committed two crimes  of  domestic

violence  against Kirn:  criminal mischief and threats  of  harm.

McComas challenges those findings.

          McComas argues that the superior court erred in finding

that his destruction of the windows in Kirns mothers vehicle  was

a crime involving domestic violence against Kirn.  Alaska Statute

18.66.990(3) defines a crime involving domestic violence  as  one

or  more  specified  offenses committed  by  a  household  member

against  another household member.  The definition  of  household

member  includes  adults  or minors who  are  current  or  former

spouses  and adults or minors who are related or formerly related

by marriage.12

          McComas was convicted of criminal mischief in the third

degree  for  breaking  Kirns mothers vehicle  windows.13   Alaska

Statute 18.66.990(3) lists the offenses that are crimes involving

domestic  violence  when  committed  against  household  members.

Criminal mischief is one of the listed offenses.14  Because Kirns

mother  formerly  had been related to him by  marriage,  McComass

conduct  in  damaging  the  vehicle  would  qualify  as  a  crime

involving  domestic violence.  But there was no  evidence  before

the  superior court on September 10 that Kirn owned or shared the

use of the vehicle.  Reliance on the criminal mischief charge  is

therefore problematic:  the superior court may issue a protective

order  only  when the respondent has committed a crime  involving

domestic violence against the petitioner.15

          Nonetheless, the alternative ground relied upon by  the

superior court  threats of harm  justifies entry of the September

10 order.  A crime involving domestic violence includes any crime

against  the  person under AS 11.41 committed  by  one  household

member  against  another.16  Under AS  11.41.270(a),  [a]  person

          commits the crime of stalking in the second degree if the person

knowingly  engages in a course of conduct that recklessly  places

another person in fear of death or physical injury, or in fear of

the  death  or  physical  injury of a family  member.  Course  of

conduct  means  repeated acts of nonconsensual contact  involving

the  victim or a family member.17  Nonconsensual contact includes

sending  mail or electronic communications to that person without

that  persons consent.18  Thus, sending threatening mail  can  be

stalking in the second degree.

          On  July 9, 2000, McComas sent Kirn a card that  stated

in part:

          Maybe if [Kirns son] is lucky his mother will
          recieve her punishment from God and get aids;
          then  shrivel  up  and die, while  hes  still
          young. . . .
          
          For  being  selfish and not doing whats  best
          for   [Kirns  son],  for  lying  to  God  and
          breaking your vows, you will recieve  one  or
          more   of   the   following:  herpes,   aids,
          syphilix,  goneria,  genital  warts,  cancer,
          clymidia,  heart  attack,  brain  tumor,   or
          severe depression to the point of suicide.
          
Kirn  received  a  second  card on July  13,  2001   after  Judge

Joannides entered the no-contact order  that stated:

          HEATHER, Today marks the one year anniversary
          of  your adulterous relationship with  scott.
          YOU  KNOW  THE CONSEQUENCES FOR THIS  ACTION.
          JUDGEMENT DAY IS COMING!  JESUS.
          
The back of the card read, IT MUST SUCK TO BE YOU!

          On  May 5, 2002 McComas wrote on Kirns copy of a  court

document  entitled  Mr. McComas[s] Response to  the  Plaintiff[]s

Reply  to  Mr.  McComas[s] Pleading Dated April  30,  2002:  P.S.

Theres  no lower form of life on this planet than a dirty  whore.

I  hope  you  are enjoying your worldly pleasures while  you  can

because  your judgment is coming.  At the September 2002 hearing,

Judge  Morse  asked  Kirn to describe what she  thought  McComass

statements  meant.  She responded: For him to cause  me  harm  in

some way.  In fact, death.

          On  appeal,  McComas argues that his statements  simply

          stated his religious belief that [Kirn] would go to hell for her

actions.  Based on the parties testimony and his observations  of

McComass   demeanor  at  the  September  hearing,   Judge   Morse

determined  that  McComass written comments  in  the  cards  were

intended  as  threats  and that the anger  behind  them  had  not

subsided.  Judge Morse told the parties:

          I  frankly  am  very troubled  by  [McComass]
          conduct  here today and his recent  writings,
          and I dont see any reason to believe that  he
          isnt  going to explode next week or  a  month
          from  now  when he starts thinking about  his
          wife and how he thinks hes been wronged.   He
          clearly  cannot deal with the fact that  shes
          not  married to him anymore, despite what  he
          says.   Hes obsessed.  There isnt a  question
          in my mind that thats the case.
          
          . . . .
          
          I  think  that his written comments regarding
          her  [adulterous] conduct and his belief that
          some sort of biblical judgment day is coming,
          are  threats.   Not merely of  some  biblical
          phenomenon,  but  of  his  response  to   her
          conduct  if he thinks she continues to  wrong
          him.
          
          I  find Mr. McComas demeanor on the stand  to
          be  very  troubling.  He is clearly pressured
          and  angry and extremely emotional  and  very
          obsessed over his wifes conduct.
          
          The  superior court did not clearly err in finding that

McComass  statements were threats.  McComass words can fairly  be

read  to express a desire that Kirn suffer harm and a belief that

she  would.  His hearing testimony indicated that his  anger  for

Kirn had not diminished.  He testified:

          Im  sitting in jail for just years  thinking,
          you  know, my wifes out there with some other
          guy  and  theres nothing I can do  about  it.
          And  she just wants me -- she wants me to get
          angry, you know, and just sit there and build
          up  hatred  for her.  And shes going  to  use
          that against me.  And she created, you know -
          -  I -- I have a lot of anger for her but  --
          you know, for what she did to my family.
          
Furthermore, damaging the vehicle windows could fairly  be  taken

to reveal a willingness to act violently on his anger.

          McComas  argues on appeal that his statements, even  if

they  were threats, were constitutionally protected speech.  This

argument  has no merit; the United States Supreme Court has  held

that  threats  through which the speaker means to  communicate  a

serious  expression  of an intent to commit an  act  of  unlawful

violence  to a particular individual or group of individuals  are

not constitutionally protected speech.19

           Because  McComass threats could amount to stalking  in

the second degree,20 the superior court did not commit legal error

in  relying  on  them  as justification for  the  September  2002

protective order.21

     D.   The  Actions that Supported Issuance of the  Protective
          Order Were Not Too Remote in Time To Justify the Order.
          
          McComas  argues that the actions for which the superior

court  granted  Kirns request for the protective order  were  too

remote  in  time  to  justify the order.  We disagree.   Although

McComas  destroyed the vehicle windows in October 2000,  he  made

subsequent  threats  to Kirn in July 2001  and  May  2002.   Kirn

petitioned  for  an ex parte protective order on July  23,  2002,

just  before  McComas was scheduled to be released  from  prison.

Only  three months elapsed between McComass last threat and Kirns

petition.  Kirn points out that McComas was unable to cause  harm

or  execute  upon  any of his threats during those  three  months

because  he  was  still incarcerated.  Moreover, AS  18.66.100(e)

provides: A court may not deny a petition for a protective  order

under  this section solely because of a lapse of time between  an

act  of  domestic  violence  and  the  filing  of  the  petition.

McComass actions were not too remote in time.

     E.   The  2002 Protective Order Was Not Barred by the Courts
          Prior Denial of the Requested Order.
          
          McComas   argues  that  Kirn  was  already   denied   a

restraining  order and cannot without further adverse  action  by

[McComas]  rec[ei]ve  a  new order on the same  evidence  already

consider[e]d and denied.  Kirn petitioned for both  an  ex  parte

and  a  long-term protective order on October 9, 2000.  She cited

          McComass abusive phone calls, unsolicited appearances at her

workplace,  and threats to take away her son as the  reasons  for

her petition.  The court issued an ex parte protective order that

day  and consolidated the domestic violence case with the parties

divorce  case.  It found probable cause to believe  that  McComas

had  committed  a  crime involving domestic  violence   malicious

destruction of property  against Kirn.

          The  superior  court conducting the  October  25,  2000

divorce  hearing  directed McComas to arrange visitation  through

someone  else  and  not to call Kirn.  That court  saw  no  need,

however, to extend the protective order; the court explained that

it  would  address the issue in the divorce decree.  The December

2000 divorce decree included a no-contact order that stated:

          The  defendant [McComas] shall not  take  the
          child  out of Anchorage.  The defendant shall
          not   telephone  or  otherwise  contact   the
          plaintiff  directly.   All  visitation  plans
          shall  be  coordinated through the visitation
          supervisor designated by the plaintiff.   The
          court  hereby dissolves the domestic violence
          order  that had been in place and substitutes
          this  custody  and visitation  order  in  its
          place.
          
(Emphasis  added.)   McComas  argues  that  by  dissolving  Kirns

existing  protective order and substituting a  no-contact  order,

the  divorce decree barred Kirn from petitioning for a  long-term

protective  order in 2002.  He claims that nothing new transpired

between  October of 2000 . . . and the issuance of the long  term

protective order by Judge Morse. He also asserts that the divorce

decree was sufficient in curtailing Mr. McComas contact with  his

wife.

          Although  he  never  identifies  the  legal  principles

potentially   underlying  this  argument,   McComas   essentially

contends  that res judicata barred Kirns petition  for  the  2002

order.   Res  judicata  consists of claim  preclusion  and  issue

preclusion.22  McComass argument amounts to an argument for claim

preclusion,  which  prevents a party from suing on a claim  which

has  been previously litigated to a final judgment by that  party

          . . . and precludes the assertion by such parties of any legal

theory,  cause  of  action,  or defense  which  could  have  been

asserted  in  that action. 23 A final judgment in a prior  action

bars  a  subsequent action if the prior judgment was (1) a  final

judgment   on   the  merits,  (2)  from  a  court  of   competent

jurisdiction, (3) in a dispute between the same parties (or their

privies) about the same cause of action.24

          We  agree  with  Kirn  that a  change  in  circumstance

justified  the  2002  protective order.  As  Kirn  argues,  [t]he

previous  order was not required and the divorce decree  covering

McComas  behavior  was not appealed, as McComas was  incarcerated

and did not constitute a threat.  When the superior court entered

the  divorce  decree  in 2000, McComas was  incarcerated.   Kirns

attorney told the court at the divorce hearing that McComas would

probably  be  imprisoned for two more years.   It  was  therefore

unnecessary to issue a protective order or maintain the  existing

protective   order;  the  decrees  no-contact  order  effectively

resolved Kirns concerns.  Moreover, the no-contact provisions  of

a long-term protective order would have expired after six months.25

The   no-contact  order  contained  in  the  divorce  decree  was

therefore  the  best way to prevent McComas from contacting  Kirn

beyond that six-month period.

          When  Kirn petitioned on July 23, 2002 for the ex parte

and  long-term protective orders, she wrote on the petition  that

McComas was due to be released in eight days.  McComas was indeed

released  on July 31, although he was reincarcerated a day  later

for  violating the conditions of his parole.  The superior  court

granted  Kirns  request for the ex parte order at  the  August  7

domestic  violence hearing, but noted: If it turns out that,  you

know, the parole board says go back to jail for another year .  .

.  you  really  dont need this protective order because  hes  not

coming  out.   Between  the August 7 and September  10  hearings,

McComas  was  transferred to a correctional community residential

center.   McComas testified  at the September 10 hearing that  he

          could be released as soon as October 2002.  Explaining that he

did not believe McComas when he testified that he would stay away

from  Kirn,  Judge  Morse  then issued the  challenged  long-term

protective   order,  which  not  only  prohibited  McComas   from

contacting Kirn, but also ordered him to stay away from her home,

workplace,  childs  daycare, and vehicle.   The  2002  protective

order therefore accommodated Kirns need for additional protection

following   McComass   anticipated   release.    These    changed

circumstances  justified the additional protections  afforded  by

the September 2002 protective order.26

          The   protective  order  was  also  justified  by   the

additional security it provided.  The 2000 no-contact  order  was

apparently  insufficient to deter McComas from  contacting  Kirn.

He  repeatedly violated the order by contacting Kirn directly  by

mail  or telephone.  Although no contact was also a condition  of

McComass  parole,  the  superior  court  in  September  2002  was

justified   in   concluding  that  additional  protections   were

warranted  given  McComass history of parole violations  and  his

disregard  for the divorce decrees no-contact order.   Under  the

circumstances, the courts decision to issue the protective  order

was reasonable.

IV.  CONCLUSION

          We  therefore AFFIRM the September 10, 2002  protective

order.

_______________________________
     1     McComass  appellate brief also asks  us  to  vacate  a
protective order issued in August 2003.  Because the August  2003
protective  order was issued after McComas filed this appeal,  it
is not properly before us and we do not address it here.

     2    Harris v. Westfall, 90 P.3d 167, 172 (Alaska 2004).

     3    Adams v. Adams, 89 P.3d 743, 749 (Alaska 2004).

     4    J.M.R. v. S.T.R., 15 P.3d 253, 256 (Alaska 2001).

     5    Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).

     6     At  times pertinent here, AS 18.66.100(b)(2)  provided
that  orders  entered  under (c)(2)  (16)  of  this  section  are
effective for six months unless earlier dissolved by court order.
Following  amendment of AS 18.66.100(b)(2) in 2004,  such  orders
remain effective for one year.

     7    AS 18.66.100(c)(1).

     8    AS 18.66.100(b)(1).

     9    AS 18.65.540(a).

     10    AS 11.56.740(a)(1) provides in pertinent part: A person
commits  the crime of violating a protective order if the  person
is  subject to a protective order . . . and knowingly commits  or
attempts  to commit an act with reckless disregard that  the  act
violates or would violate a provision of the protective order . .
.  .  AS 18.65.530(a)(2) provides: (a) [A] peace officer, with or
without  a  warrant,  shall arrest a person if  the  officer  has
probable cause to believe the person has . . . (2) committed  the
crime of violating a protective order.

     11     Smith v. Smith, 549 S.E.2d 912, 914 (N.C. App.  2001)
(holding appeal of expired domestic violence order not moot).

     12    AS 18.66.990(5)(A), (F).

     13    Under AS 11.46.482(a)(1), [a] person commits the crime
of  criminal mischief in the third degree if, having no right  to
do  so or any reasonable ground to believe the person has such  a
right,  with  intent  to damage property of another,  the  person
damages property of another in an amount of $500 or more.

     14    AS 18.66.990(3)(E).

     15    AS 18.66.100(b) (emphasis added).

     16    AS 18.66.990(3)(A).

     17    AS 11.41.270(b)(1).

     18    AS 11.41.270(b)(3)(F).

     19     Virginia v. Black, 538 U.S. 343, 359 (2003); see also
Powell v. State, 12 P.3d 1187, 1190 (Alaska App. 2000).

     20    See AS 11.41.270(a).

     21     Kirn  argues  on appeal that McComas  also  committed
assault in the fourth degree when he sent her the cards.  Assault
in  the  fourth  degree  involves words  or  other  conduct  that
recklessly  place  another person in fear  of  imminent  physical
injury.   AS 11.41.230(a)(3) (emphasis added).  The threats  were
made  by  mail while McComas was still incarcerated and  was  not
then  scheduled for imminent release, and could not  be  read  to
contain  a  threat  of  imminent  physical  injury.   There   was
consequently no assault in the fourth degree.

     22    McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003).

     23    Id. (quoting Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska
1999)).

     24    Id. at 906-907 (internal quotes omitted).

     25    AS 18.66.100(b)(2).  See supra note 6.

     26    Fardig v. Fardig, 56 P.3d 9, 12 (Alaska 2002) (holding
res  judicata  and  collateral estoppel inapplicable  because  of
material change of circumstances).