dissenting. I would reverse and dismiss this case because I do not believe that appellee Angie Dixon presented sufficient evidence to justify the grant of a protective order. I conclude that the trial court erred in finding that there was the infliction of fear and imminent physical harm, bodily injury, or assault, an element of the statutory offense, under the circumstances of this case.
At the September 20, 2005, hearing, Dixon testified that she and Simmons had separated on April 1, 2005, and that she began receiving text messages on April 22. She claimed that Simmons called her a lying whore and stated that she needed to quit telling people that he whipped her “a**” or he would actually do it. She claimed that she never said such a thing, but merely told people that he had a habit of pushing when he got drunk. Dixon also testified that Simmons threatened to kill the dog he had given her as a Christmas gift because they were in a dispute as to whether she had returned all of his Harley-Davidson items. She stated that she received the last message on May 22, 2005, and that she decided to get an order of protection in June 2005, after Simmons came into Big Daddy’s club, called her a whore, and pushed her.
She claimed that she filed a report with the Dell police although the club is in Blytheville, because she was asked to leave the club and she went home and called the police. According to her, the report never got faxed to the sheriffs department until September 20, 2005, and she waited so long to file the complaint because she was told that she would have to wait for a letter to get a court date. Dixon further testified that she was going to dismiss the complaint as long as Simmons left her alone and stopped making catty remarks and flipping her off. She stated that she believed that Simmons would leave her alone because he was getting married. She also stated that she would be satisfied with a restraining order or a mutual restraining order if the court did not grant an order of protection.
On cross-examination, Dixon stated that after the sheriffs department received the police report, she told them that the only thing Simmons was doing now was making catty remarks and flipping her off, which she admitted did not present a clear and present danger of bodily harm. She testified that she worked at Fasco and Drift-In and that Simmons had never been to either place to her knowledge, although she believed that either Simmons or his fiancee had called her supervisor at Drift-In. Dixon also admitted that she asked that Simmons be restrained from the residence where neither of them still lived and admitted that when she went to work at Drift-In, she told her supervisor, Wayne Snow, that she had a restraining order against Simmons.
Dixon testified that “[A]t the time I went to the Dell Police Department it was because of the incident at Big Daddy’s. I had all the text messages, therefore, they wanted those.” However, she testified that she was afraid because Simmons said in the text messages that if he caught her out he would whip her and that she would find her dog dead in her backyard.
Simmons’s testimony agreed with much of Dixon’s, and he likewise confirmed the incident at Big Daddy’s in June 2005, where there was a confrontation which resulted in Dixon and her male companion being ousted by the club’s bouncers.
In Dixon’s affidavit that she filed on September 20, 2005, seeking the order of protection, Dixon recited the text messages and an incident at a Sonic restaurant that occurred August 5, made no mention of the incident at Big Daddy’s that precipitated her police report, yet asked that the court exclude Simmons from an apartment where they no longer lived, her place of employment, and also “Big Daddy’s.”
The purpose of the domestic abuse law is to “provide an adequate mechanism whereby the State of Arkansas can protect the general health, welfare, and safety of its citizens by intervening when abuse of a family member of a household by another member of a household occurs or is threatened to occur, thus preventing further violence.” Ark. Code Ann. § 9-15-101 (Repl. 2002).
In this instance, testimony reveals that Dixon filed her petition after the altercation in Big Daddy’s club, after which she admitted that she was the one asked to leave. In addition, she did not dispute Simmons’s testimony that she was the one who initially approached him in the club and had to be restrained by her boyfriend. The club incident occurred well after Dixon testified that she received her last text message, and her actions negate the prospect that she feared Simmons would cause her bodily harm. Further, Dixon admitted that Simmons no longer bothered her except to make “catty remarks,” and that these remarks did not cause her any imminent fear, but that she just wanted them to stop.
It appears that both Dixon and Simmons said and did unkind things to each other, and Dixon was often the aggressor. The trial court recognized this when it stated that Simmons’s threat to whip Dixon was clearly intended to scare Dixon to stop “badmouthing” Simmons; however, the trial court made no finding as to whether Simmons’s text message actually inflicted Dixon with fear of imminent harm. Dixon asserts that the trial court did make a finding of imminence when it stated that this finding was required for the issuance of an order of protection. This assertion is incorrect. As stated previously, the court only found that Simmons intended to scare Dixon, not that he actually inflicted her with imminent fear. Even if the assertion were correct, such a finding of imminence would be clear error. Witness credibility did not seem to be an issue in this case, as the trial court decided to issue an order of protection based upon Simmons’s own testimony.
The trial court clearly erred in issuing an order of protection against Simmons because it did not make a finding of infliction of fear of imminent bodily harm. In the absence of that finding, the court could have (but did not) made a finding that Simmons had actually caused Dixon bodily harm. While Simmons admitted to sending some ill-advised text messages, I have a definite and firm feeling that a mistake has been made in this case. Not only was there no fear of imminent infliction of physical injury, but the court issued an order of protection requiring Simmons to stay away from a night club and from a residence at which neither party resided. While protection-order hearings are not criminal in nature, there is some stigma attached to having been found to be the perpetrator in a domestic-abuse case. The trial court at most should have issued mutual restraining orders because both parties agreed that they wanted the other to leave them alone; however, it was error to grant an order of protection against Simmons simply because Dixon wanted him to stop making catty remarks, especially in light of the fact that Dixon appeared to be also making derogatory statements about Simmons.
While Dixon did claim after the fact that she was afraid, it is abundantly clear from her testimony and the other evidence presented that she was angered by the incident at Big Daddy’s, sought to make a police report only as a result of that incident, and that it was the police who then injected the text messages into this dispute. I do not think the important statutory protection afforded by Ark. Code Ann. § 9-15-101 for persons who experience real and threatened domestic abuse is advanced by permitting its utilization to allow a party, such as Ms. Dixon, in a back-and-forth boyfriend-girlfriend feud to score one-upmanship points.