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Donat v. Johnson

Supreme Court of South Dakota

March 25, 2015

BARBARA DONAT, Petitioner and Appellee,
v.
CORY JOHNSON, Respondent and Appellant

Considered on Briefs February 17, 2015.

As Amended June 3, 2015.

Page 123

[Copyrighted Material Omitted]

Page 124

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA. THE HONORABLE WARREN G. JOHNSON, Retired Judge.

JOSEPH M. KOSEL of Johns & Kosel, Prof., LLC Lead, South Dakota, Attorneys for petitioner and appellee.

ERIC T. DAVIS THOMAS E. BRADY of Brady Pluimer, PC Spearfish, South Dakota, Attorneys for respondent and appellant.

ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.

OPINION

Page 125

ZINTER, Justice.

[¶1] Barbara Donat obtained a protection order against Cory Johnson. Johnson appeals, contending that the circuit court clearly erred in its factual findings, abused its discretion in granting the protection order, violated Johnson's due process rights, erred in permitting " other acts" evidence, applied an unconstitutionally vague statute, and abused its discretion in crafting the protection order. We affirm.

Facts and Procedural History

[¶2] Donat and Johnson met in 2008 through social activities involving their spouses and a third couple. The three couples engaged in activities approximately 100 times from 2008 through 2011. However, beginning in 2011 and continuing into 2012, a series of events lead to a dissolution of the couples' friendship. Although many of the details of those events are in dispute, we restate them in a light most favorable to the circuit court's findings. See State v. Akuba, 2004 S.D. 94, ¶ 25, 686 N.W.2d 406, 417 (quoting State v. Almond, 511 N.W.2d 572, 573 (S.D. 1994)) (noting that a circuit court's resolution of a question of fact " will be upheld unless our examination of the evidence, construed in a light most favorable to the trial court's findings, convinces us that the finding was clearly erroneous" ).

[¶3] In June 2011, while the three couples were socializing at a bar, Johnson asked to use Donat's phone. Donat refused. An intoxicated Johnson yelled at her and called her offensive names. The circuit court found that Johnson's words caused Donat to leave the bar in emotional turmoil and fear.

[¶4] In January 2012, Donat's husband told Johnson not to purchase a lot next to Donat's home. Johnson later became angry, drove to Donat's home, and shoved a cake into Donat's husband, stating: " I need to get out of here before I do something I regret."

[¶5] In March 2012, Johnson made an unwanted sexual advance on Donat. After dropping off his wife and daughter from an event, Johnson took Donat home. Johnson stopped at the end of Donat's driveway and ran his hand up her leg, trying to get underneath her dress. Johnson told Donat how hurt he was that she did not want him to buy the lot next to her home. He also indicated he was hurt that they had not been talking for the past few months. Johnson asked her to kiss him and stated that he knew she would share his feelings if she kissed him. Donat rebuffed Johnson, demanding to be released from the vehicle. Johnson pleaded with her not to tell his wife. Donat told a friend about the incident, and thereafter, Donat decided to

Page 126

only see Johnson in public where others were present.

[¶6] Johnson and his wife did ultimately purchase a lot in the same subdivision as Donat (but not the lot adjacent to Donat's home). Two roads provided access to the Johnsons' lot-a 3.4-mile, unpaved road and a 1.5-mile, paved road running directly in front of Donat's home. Johnson primarily used the paved road. After Johnson purchased the lot, he made frequent trips to his property to visualize the layout of his future home. Additionally, Johnson had a contract with the subdivision to plow and sand the paved road during the winter months, so Johnson frequently used the road running in front of Donat's home.

[¶7] There were additional incidents in 2012, culminating with a final incident in August 2012. On that occasion, the three couples attended a banquet where Johnson became intoxicated. Johnson beat the third husband in the presence of the other couples, injuring him severely. After that incident, the Donats and the third couple avoided all contact with Johnson.

[¶8] In December 2013, over a year after their last contact, Johnson approached Donat while she was waiting for her son at a bus stop in the subdivision. Johnson, whom Donat had never seen at the bus stop before, pulled up next to Donat and indicated she should roll her window down. Donat complied, and Johnson asked about road conditions.[1] The two made " small talk" for a few moments, and Donat drove away. At the hearing, Donat testified that she felt very uncomfortable during the encounter. This was the first time Donat believed Johnson was stalking/harassing her. Over the next two months, Johnson appeared at the bus stop six times. According to Donat, Johnson would drive by very slowly and glare at her.

[¶9] . From the fall of 2013 to the spring of 2014, Donat also observed Johnson driving slowly by her home. Johnson would travel slowly and stop in front of the home while glaring at Donat. The neighbors across the street, the Merchants, confirmed that a white truck would slow down and stop in front of Donat's home.[2] Mr. Merchant, a retired Marine Corps Colonel, testified that the truck would stop in such a way so as to have an unobstructed view into Donat's home. Merchant became concerned enough that, on several occasions, he attempted to approach the driver while he was stopped. However, every time Merchant attempted to confront the truck's operator (later confirmed to be Johnson),[3] the vehicle would quickly leave the scene. Merchant thought ...


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