IN THE COURT OF APPEALS OF IOWA
No. 18-0722
Filed May 1, 2019
MICHAEL W. KING,
Plaintiff-Appellee,
vs.
GAGE M. SMITH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,
Judge.
Gage Smith appeals following the issuance of a final domestic abuse
protective order against him. AFFIRMED.
Gage M. Smith, Urbandale, pro se appellant.
Michael W. King, Des Moines, pro se appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
PER CURIAM.
Gage Smith appeals following the issuance of a final domestic abuse
protective order against him. He argues there is insufficient evidence to support
the court’s finding that he committed domestic abuse and, therefore, the court
improperly issued the protective order. Because sufficient evidence supports the
district court’s finding that Smith committed domestic abuse against King, we
affirm.
Background Facts and Proceedings.
This case originally involved four petitions for relief from domestic abuse
filed pursuant to Iowa Code section 236.3 (2018). Gage Smith obtained temporary
protective orders against his uncle, Michael King, and Nichole Teel1 on April 2,
2018. Later that same day, King and Teel filed separate petitions for relief from
domestic abuse seeking temporary protective orders against Smith. King’s and
Teel’s petitions were set for hearing on April 11, 2018, and Smith’s temporary
protective orders were scheduled for hearing on April 17, 2018.
The incident that led to the filing of the petitions occurred on the night of
April 1, 2018. At the time King, Teel, and their children shared a house with Smith.
That night, after spending a few days in Missouri, Smith returned home to find
Caitlind, his former girlfriend, and Zach, one of King’s acquaintances, at the house.
Caitlind was leaving as Smith entered the house, but it is unclear from the record
when or if Zach left at any point. Smith became upset because he did not want
Zach in the house, and a disagreement ensued between Smith and King. King
1
The record does not reflect that Smith and Teel are in any way related.
3
and Teel testified that Smith said he was going to get his gun and shoot them.
King admitted he then shoved Smith out of the house and his hand came into
contact with Smith’s face. King further testified that he wanted Smith out of the
house after Smith threatened to shoot them because he was concerned Smith
would get his gun from the front porch, the portion of the house where Smith lived.
Once out of the house, Smith called 911 to report the incident. Smith
admitted in his testimony that he asked the 911 operator if he could shoot King
and Teel because he wanted to know about the stand your ground law. The
situation quickly defused when two Des Moines police officers arrived at the house
and removed Smith’s gun from his waistband, after Smith admitted he had the gun
on his person during the entire incident.
Hearings were held on April 11 and April 17, 2018.2 With the patience of
Job, the court carefully guided the parties, each representing themselves, through
the admission of exhibits and the somewhat rambling and frequently irrelevant
testimony. In an order dated April 17, 2018, the court stated that:
Based upon the evidence presented, the court finds by a
preponderance of the evidence:
1) King committed domestic assault against Smith.
2) Smith committed domestic assault against King.
3) There was no evidence to establish that Teel committed
domestic assault against Smith. In addition, Teel cannot prosecute
a claim for domestic assault against Smith because they do not meet
the definition of family members or household members under the
statute.
4) Smith cannot prosecute a claim for domestic assault
against Teel because they do not meet the definition of family
members or household members under the statute.
5) Smith and King represent credible threats to the safety of
each other.
2
We were not provided a transcript of the April 11th hearing.
4
The court went on to order and set the parameters for a final domestic abuse
protective order against both Smith and King, pursuant to Iowa Code chapter 236.
The court further ordered that the temporary protective order by Smith against Teel
and the petition for relief from domestic abuse by Teel against Smith were both
dismissed. As best this court can tell from Smith’s pro se brief, he is appealing the
final domestic abuse protective order by arguing there was insufficient evidence to
find he committed domestic assault against King.3,4 We affirm the district court,
finding sufficient evidence to show that Smith committed domestic assault against
King.
Standard of Review.
Civil domestic abuse cases are heard in equity, and therefore our review is
de novo. See Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). “Respectful
consideration is given to the trial court’s factual findings and credibility
determinations, but not to the extent where those holdings are binding upon us.”
Id. Therefore, the district court’s findings of fact are binding on us if supported by
substantial evidence: evidence that reasonable minds could accept as adequate
to reach the same findings. See Tim O’Neill Chevrolet, Inc. v. Forristall, 551
N.W.2d 611, 614 (Iowa 1996); see also Lashley v. Charran, No. 07-0201, 2007
WL 4553598, at *2 (Iowa Ct. App. Dec. 28, 2007).
3
Accordingly, we only address the district court’s second holding above, that Smith
committed domestic assault against King.
4
King did not file an appellate brief.
5
Discussion.
Smith’s pro se brief contends the district court had insufficient evidence to
find that he committed domestic assault against King. Iowa Code section 236.4(1)
states that allegations of domestic abuse must be proven “by a preponderance of
the evidence.” “A preponderance of the evidence is the evidence ‘that is more
convincing than opposing evidence’ or ‘more likely true than not true.’ It is
evidence superior in weight, influence, or force.” Martinek v. Belmond-Klemme
Cmty. Sch. Dist., 772 N.W.2d 758, 761 (Iowa 2009) (citations omitted). Section
236.2(2) defines “domestic abuse” as “committing assault as defined in section
708.1” under certain domestic circumstances.5 Section 708.1(2)(b) defines assault
as, without justification, “[a]ny act which is intended to place another in fear of
immediate physical contact which will be painful, injurious, insulting, or offensive,
coupled with the apparent ability to execute the act.”
The district court found that
King’s knowledge of Smith’s ownership of a handgun, coupled with
Smith’s statement that he was going to get it and shoot them,
demonstrates King’s concern for his safety. When King’s concern is
coupled with Smith’s admission that he inquired whether he could
shoot King, it demonstrates to this court that he had the apparent
ability to carry out the act and a conscious consideration to do so.
This . . . constitutes an assault.
We agree. Smith’s own statements and actions show that he intended to place
King “in fear of immediate physical contact” by threatening to shoot him and Teel.
See Iowa Code § 708.1(2)(b). Further, Smith had a gun in his waistband during
the altercation and, therefore, had the “ability to execute the act” already
5
Smith and King fall under section 236.2(2)(a) (family members residing together at the
time of the assault).
6
threatened. Id. The court considered all of the evidence presented by the parties
and found that Smith and King both committed domestic assault against each
other. “Understandably[, the] trial court was in a better position than are we to
observe the conduct of all witnesses, including the parties hereto, and determine
the credibility of their testimony.” Paxton v. Paxton, 231 N.W.2d 581, 584 (Iowa
1975). We find the district court properly determined there was a preponderance
of the evidence to support a finding of domestic assault by Smith against King.
Any arguments and requests for relief made by Smith not specifically
addressed in this opinion are deemed denied.
Accordingly, we affirm the court’s issuance of a final domestic abuse pro-
tective order.
AFFIRMED.