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The district court ruled on objections as they were made and tried this case as a law action. Therefore, our review is for the correction of errors at law. In a law action, the district court's findings of fact are binding upon us if supported by substantial evidence.
Respondent Daniel Rajtora and petitioner Kendra Speicher were the parents of an eight-year-old daughter. Although they never married, the parties have resided with one another on various occasions. In March 2008, respondent returned their daughter to petitioner's residence after a visitation. Respondent did not see petitioner at any time that day, and did not speak to her at the drop-off. Petitioner testified that she called respondent using a new cell phone respondent had just purchased for their daughter, and asked respondent to prevent their daughter from taking her new cell phone to church or school. Petitioner testified that respondent threatened her in his reply. At the hearing, respondent admitted swearing but denied making a threat. The district court then issued a civil domestic abuse protective order in favor of petitioner. Respondent appealed the issuance and argued that the district court's finding that he committed domestic abuse assault was not supported by a preponderance of the evidence. He specifically maintained that there was insufficient evidence that he acted in a manner 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.
Did the district court err in holding that respondent committed domestic abuse assault?
The court held that even assuming respondent made the alleged threat, the court were compelled to find insufficient evidence of assault because petitioner did not establish respondent had an apparent ability to execute the act. The court ruled that assault required fear of immediate physical contact coupled with the apparent ability to execute the assault. However, the court held that the record did not establish respondent’s apparent ability to execute the threat at the time the threat was made. As the testimony only established petitioner’s belief respondent had a future ability to return from a distance and execute the threat. The court found insufficient evidence to support the assault element of domestic abuse assault. Thus, the court reversed and remand for dismissal of the protective order.