IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JULIE WARE, Appellant,

v. JESSE VERNON NELSON, Respondent. No. 69738-2- DIVISION ONE UNPUBLISHED OPINION FILED: April 28, 2014 £^ O C3
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Becker, J. — To obtain a sexual assault protection order, a petitioner must 

### establish by a preponderance of the evidencethatthe alleged sexual misconduct occurred. Here, the trial courtfound thatthe petitionerfailed to do so after a 

### hearing that presented a classic credibilitycontest. Deferring to the trialcourt's assessment ofwitness credibility, we affirmthe court's decision to deny appellant's petition. FACTS 

### Julia Ware, age 37, filed a petition for a sexual assault protection order, alleging that Jesse Nelson, age 40, sexually assaulted heron October 13, 2012. The petition also alleged a history ofrepeated sexual assault and stalking by Nelson from 1989 to the present. The court granted an ex-parte temporaryNo. 69738-2-1/2 

### sexual assault protection order and set a hearing for a laterdate. The hearing occurred on November 26, 2012. After a day oftestimony from seven witnesses, the trial court denied 

### Ware's requestfor an order ofprotection and dismissed her petition. Ware appeals. ANALYSIS 

### Under chapter7.90 RCW, the Sexual Assault Protection OrderAct, a 

### person may petition the court for an orderof protection fromnonconsensual sexual conduct by another person. The court must issue a sexual assault 

### protection order ifthe court finds by a preponderance of the evidence "that the petitioner has been a victim ofnonconsensual sexual conductor nonconsensual sexual penetration by the respondent." RCW 7.90.090(1 )(a). Here, the trial court reviewed all affidavits and exhibits and heard testimony from the petitioner, 

### Ware, and several ofthe affiants. The courtdenied Ware's petition and entered findings of fact and conclusions of law. Ware contends that review is de novo. This is incorrect. We review a 

### decision to grant or deny an order ofprotectionfor abuse ofdiscretion.1 Wewill reverse onlyifthe trial court's decision ismanifestly unreasonable or exercised on untenable grounds or foruntenable reasons. We decline Ware's invitationto abandon this standard ofreview and adopt a less deferential standard for orders under RCW 7.90.090. We deferto the trier offact on the persuasiveness ofthe

1Inre Knight. Wn. App. 317P.3d 1068, 1072 (2014). citing Heckerv. Cortinas. 110Wn. App. 865, 869, 43 P.3d 50 (2002).No. 69738-2-1/3 

### evidence, witness credibility, and conflicting testimony.2 Where the court holds a hearing and weighs contradictory evidence prior to the entry of a protection order, the proper standard of review is the substantial evidence standard.3 

### [T]he substantial evidence standard of review should be applied
.. . where competing documentary evidence had to be weighed and conflicts resolved. The application ofthe substantial evidence 

### standard incases such as this is a narrow exception to the general rule that where a trial court considers only documents, such as parties' declarations, in reaching its decision, the appellate court may review such cases de novo because that court is inthe same position as trial courts to review written submissions.141 "Credibility determinations are for the trier offact and cannot be reviewed on 

### appeal."5 We review questions of law de novo. With respectto the allegation that Nelson sexually assaulted heron October 13, 2012, Ware testified that the assault occurred sometime in the evening, as itwas getting dark, while she was going back and forth between her 

### apartment and her neighbors' apartment. However, evidence presented by 

### Nelson's wife and his hunting partners provided an alibi. The court specifically found Nelson's wife to be more credible than Ware and noted inconsistencies in Ware's evidence. The courtfound by a preponderance ofthe evidence that Nelson did not committhe alleged assault on October 12, 2013. The court furtherfound thatWare did not establish by the preponderance ofthe evidence that other contacts between Ware and Nelson during the previous 23 years of

2Knight. 317 P.3d at 1072; see ajso Inre Marriage ofRideout. 150 Wn.2d 337, 351, 77 P.3d 1174 (2003). 3 Rideout. 150 Wn.2d at 351. 4 Rideout. 150 Wn.2d at 351. 5State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990).No. 69738-2-1/4 their off-and-on sexual relationship amounted to nonconsensual sexual conduct
or sexual penetration. Ware asserts that the facts are undisputed. But the facts are undisputed only ifone looks solely atWare's affidavit and testimony to the exclusion ofother affidavits and ignores the fact that many ofthe affiants presented livetestimony before the trial court. Ware also contends that the trial court erred by considering hearsay. But ER 1101(c)(4) governs the applicability ofthe Washington evidence rules to protection order proceedings, and the rules of evidence need not be applied in 

### such proceedings.6 Substantial evidence supports the court's findings, and the findings in turn supportthe conclusions of law. The orderdenying Ware's petition is affirmed. 

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WE CONCUR: 

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# 6uiA6Gourlev v. Gourlev. 158 Wn.2d 460, 464, 145 P.3d 1185 (2006). 4