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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the Matter of:
KIMBERLY PRIDDY,
Petitioner/Appellee,
v.
SHERMAN TERRELL MOORE,
Respondent/Appellant.
No. 1 CA-CV 20-0272 FC
FILED 3-11-2021
Appeal from the Superior Court in Maricopa County
No. FC2020-050931
The Honorable Michelle Carson, Judge Pro Tempore
AFFIRMED
COUNSEL
Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Erica L. Leavitt
Counsel for Respondent/Appellant
Udall Shumway, PLC, Mesa
By Steven H. Everts
Counsel for Petitioner/Appellee
PRIDDY v. MOORE
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Sherman Moore (“Father”) appeals the superior court’s order
of protection against him. We affirm the order of protection because Father
shows no reversible error.
FACTS AND PROCEDURAL BACKGROUND
¶2 We recount the facts in the light most favorable to sustaining
an order of protection. Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5 (App.
2014). Father and Kimberly Priddy (“Mother”) share custody of their minor
child, A.P. According to a November 2018 paternity order, Mother was
awarded sole legal decision-making authority over A.P., and Father
received alternate weekends of parenting time.
¶3 On February 9, 2020, after A.P. returned from a weekend with
Father, Mother observed a fresh cut above his eye. A.P. said that Father
“hit me” and explained what happened. A.P. repeated the story to his uncle
(a minister), a police officer and others. On February 12, 2020, Mother
petitioned for an order of protection against Father, which was granted ex
parte.
¶4 Father contested the order and requested an evidentiary
hearing. Five witnesses testified at the hearing. Mother, the uncle and the
police officer testified about their conversations with A.P., repeating what
A.P. told them about Father’s abuse. Father and his girlfriend
(“Girlfriend”) testified. Father denied the accusation of abuse, surmising
that A.P. might have been hurt at school or while roughhousing with
Father’s other child. Father conceded, however, that he spanked one of his
children in the past. He argued that Mother and his other child’s mother
were colluding against him.
¶5 Among the exhibits, Mother introduced the November 2018
paternity order for A.P., which found that Father physically abused his
other son and deemed A.P. at similar risk of abuse. In admitting the
paternity order into evidence, the superior court qualified that it would
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PRIDDY v. MOORE
Decision of the Court
“determine the weight and credibility to attach.” Mother also introduced
the police report from a March 2019 shouting match between the parties in
front of A.P.
¶6 The court affirmed the order of protection, finding that Father
had physically abused A.P. but calling it “a very close call.” The court
offered three reasons for “appellate” purposes: (1) Father offered
conflicting statements and testimony, including on when A.P. was injured,
(2) there was no evidence of collusion between the mothers, and (3) the
consistent stories of witnesses who shared A.P.’s words, adding that a
child’s earlier reports are more reliable. The court also found Girlfriend
unpersuasive. The court never mentioned the police report or paternity
order in its decision. Along with the order of protection, the court also
issued a Notice of Brady Indicator (“Brady order”), prohibiting Father from
“purchasing or possessing a firearm or ammunition for the duration” of the
protective order.
¶7 Father appealed the unsigned judgment affirming the now-
expired protective order. The order is not moot, see Cardoso v. Soldo, 230
Ariz. 614, 619, ¶ 14 (App. 2012), and we have jurisdiction, see A.R.S. § 12-
2101(A)(1), (5)(b); Barassi v. Matison, 130 Ariz. 418, 421-22 (1981).
DISCUSSION
¶8 We review the order of protection for an abuse of discretion,
Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014), and the evidentiary
rulings are reviewed for a clear abuse of discretion and substantial
prejudice, Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996). “[I]t will
not be presumed that an error is prejudicial so as to require reversal, [and]
the prejudice must appear from the record.” Dykeman v. Ashton, 8 Ariz.
App. 327, 329 (1968).
¶9 Father argues that “Mother presented a weak case, and her
Order of Protection should have been quashed.” On appeal, he contends
the superior court committed two evidentiary errors that require this court
to vacate the order of protection.
¶10 Father first argues that A.P.’s paternity order should have
been precluded as improper character evidence under Rule 404(b) because
“the only purpose for its use was to improperly establish that his conduct
conformed to that character trait.” Father points, in particular, to the
paternity court’s findings that Father abused his older son and A.P. was at
risk of similar abuse. Mother counters that the evidence was admissible to
prove A.P.’s injury was not accidental. Father then argues the court
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PRIDDY v. MOORE
Decision of the Court
erroneously admitted a police report about a shouting match between him
and Mother because it was not identified in her petition for order of
protection and “occurred outside the 12-month window” established by
A.R.S. § 13-3602(E)(2). Father contends admitting the report violated his
due process rights.
¶11 Even if the evidence were inadmissible, however, Father
shows no prejudice from its admission. First, the superior court never
mentioned the police report or paternity order in its decision. Second, the
police report described a shouting match from March 2019, less than 12
months before Mother petitioned for an order of protection in February
2020. And third, the court qualified its admission of the paternity order,
explaining it would “determine the weight and credibility to attach.”
¶12 The record also includes ample evidence, apart from the
protective order, to support the superior court’s decision. To issue the order
of protection, the court only needed to find reasonable cause to believe that
Father may commit an act of domestic violence or has committed an act of
domestic violence within the past year; domestic violence is broadly
defined to include child abuse. A.R.S. §§ 13-3602(E), -3623. The court heard
from three different witnesses, including the uncle and a police officer, who
heard and relayed the same story from A.P. The record also shows A.P.
told a medical professional about Father’s abuse. The court found these
witnesses credible. On this record, we cannot conclude that Father
probably would have prevailed if the police report and previous court
order had not been admitted. See Dykeman, 8 Ariz. App. at 329 (no reversal
if prejudice does not affirmatively appear in the record).
CONCLUSION
¶13 Because Father shows no error, the order of protection is
affirmed. Father and Mother seek their attorney fees and costs on appeal
under Arizona Rule of Protective Order Procedure 39 and A.R.S. § 13-
3602(S). We decline to award attorney fees in our discretion but award
Mother her reasonable costs as the prevailing party on appeal upon
compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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