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Emery v. Bryand

Court of Appeals of Minnesota

December 30, 2013

Taryn Emery, petitioner, Respondent,
v.
Joshua Bryand, Appellant.

UNPUBLISHED OPINION

Freeborn County District Court File No. 24-CV-13-592.

Crysta L. Parkin, Southern Minnesota Regional Legal Services, Rochester, Minnesota (for respondent)

Eric J. McCloud, McCloud Law Firm, PLLC, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Smith, Judge.

SMITH, Judge

We affirm the district court's grant of a harassment restraining order because the district court (1) did not abuse its discretion by finding reasonable grounds to believe that the relevant act was nonconsensual and (2) did not commit error by not requiring proof of an immediate and present danger of harassment.

FACTS

On April 4, 2013, respondent Taryn Emery petitioned the district court for a harassment restraining order (HRO), alleging that, after appellant Joshua Bryand sexually assaulted her, he also took photographs of her. The district court granted a temporary restraining order (TRO). At the hearing that followed, Emery testified that she spent the evening of Friday, March 22, with a male friend, Bryand, and Bryand's wife, primarily at the Bryand home. The group socialized until approximately 3:15 a.m. By 3:30 a.m., Emery was asleep on the living room couch, her male friend was on the basement couch, and Bryand and his wife were upstairs.

Emery testified that, shortly thereafter, she woke up to somebody touching her upper leg and "front private areas." She realized it was Bryand and was "so intimidated and so scared" that she "pretended to be asleep." Without revealing that she was awake, she "brush[ed] [Bryand's] hands off [her] leg and turn[ed] to [her] side, hoping that he would leave." She testified that in response, Bryand "waited a few seconds and then flipped [her] back onto [her] back." Bryand continued to "touch" and "rub" her, removed her clothing, penetrated her, and "moved" and "pushed" her into multiple positions. Emery testified that, at one point, she "tried making noise like [she] was . . . waking up, " so Bryand would stop, but Bryand "covered [her] mouth with his hands and said, Sh – sh – sh." Once she was quiet, Bryand resumed the sexual assault. When he was done, but before re-dressing her, Bryand used his cell phone to take three photographs of her. Emery testified that after Bryand returned upstairs, she fled from the Bryand home and went to the hospital. The following Monday, she reported the incident to the police.

Emery was the only person to testify at the hearing. The district court found her testimony credible and granted an HRO.

DECISION

I.

We review the district court's grant of an HRO for an abuse of discretion. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn.App. 2008). In doing so, we review the district court's findings of fact for clear error, giving due regard to the district court's opportunity to judge witness credibility. Id. But whether the facts found by the district court ...


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