Alexandria Alethea Tsukanova, Appellant V. Edward K. Smith, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ALEXANDRIA ALETHEA
TSUKANOVA,
Appellant,
v.
EDWARD K. SMITH,
Respondent.
No. 85464-0-I
UNPUBLISHED OPINION
BOWMAN, A.C.J. — Alexandria Tsukanova appeals the superior court’s
refusal to issue an order protecting her from Edward Smith. Because the court
did not abuse its discretion, we affirm.
FACTS
Tsukanova and Smith met in 2017. According to Tsukanova, the two
“went on a few dates,” but she “ultimately turned down a longer relationship with
him.” Tsukanova suffers from PTSD1 and claimed that Smith sent her “to a
hospital in retaliation for the fact that [she] didn’t want to move in with him.”
On February 27, 2023, Tsukanova petitioned for an antiharassment
protection order (AHPO) restraining Smith from harming or contacting her,
coming within 1,000 feet of her, and engaging in any stalking behavior. In her
petition, Tsukanova alleged Smith was stalking and harassing her. She said
Smith raped her once in August 2017 and several times in March 2022 at an
1 Post-traumatic stress disorder.

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Airbnb in Newcastle. Tsukanova attached Airbnb records, flight records,2 and
text messages to her petition. The court issued a temporary ex parte AHPO
granting Tsukanova’s requests and set a full hearing for March 13, 2023. The
court then twice continued the hearing, each time reissuing the temporary AHPO.
The court held the AHPO hearing on May 15, 2023. At the hearing,
Tsukanova testified that Smith visited her in March 2022. She said that during
the visit, the two had consensual sex. But she also testified that her PTSD was
symptomatic then and that Smith exploited her state of mind, raping her several
times. In response, Smith’s counsel pointed to Smith’s declaration, in which he
denied that he raped Tsukanova. Smith argued that she was using the court
process as “retaliation” and in an attempt to commit “extortion.”
After her testimony, Tsukanova acknowledged that the evidence may not
support issuing an AHPO but argued that the court should issue a sexual assault
protection order (SAPO). The court denied Tsukanova’s petition. It explained
that it “questioned [the] credibility of [Tsukanova’s] statements after review of all
evidence, testimony [and] argument of [counsel],” so “insufficient evidence”
supported issuing either an AHPO or SAPO.
Tsukanova appeals.
ANALYSIS
Tsukanova argues that the court erred by refusing to issue a protection
order and showed “egregious abuse of discretion” by questioning her credibility
“without cause or reason.” We disagree.
2 Smith lives out-of-state.

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We review a court’s decision to deny a petition for a protection order for an
abuse of discretion. Maldonado v. Maldonado, 197 Wn. App. 779, 789, 391 P.3d
546 (2017). A court abuses its discretion when its decision is manifestly
unreasonable, based on untenable grounds or reasons, or reached by applying
the wrong legal standard. Id.; In Marriage of Freeman, 169 Wn.2d 664, 671, 239
P.3d 557 (2010). We defer to the trial court’s determinations on the
persuasiveness of the evidence, witness credibility, and conflicting testimony.
Snyder v. Haynes, 152 Wn. App. 774, 779, 217 P.3d 787 (2009).
To obtain an AHPO, the petitioner must show the respondent has
subjected them to unlawful harassment. RCW 7.105.225(1)(f). “Unlawful
harassment” means a “knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, harasses, or is detrimental to such
person, and that serves no legitimate or lawful purpose.” RCW 7.105.010(36)(a).
“Unlawful harassment” can also mean
a single act of violence or threat of violence at a specific person
that seriously alarms, annoys, harasses, or is detrimental to such
person, and that serves no legitimate or lawful purpose, which
would cause a reasonable person to suffer substantial emotional
distress, and must actually cause substantial emotional distress to
the petitioner.
RCW 7.105.010(36)(b).
To obtain an SAPO, the petitioner must show the respondent has
subjected them to nonconsensual sexual conduct or nonconsensual sexual
penetration. RCW 7.105.225(1)(b). “Nonconsensual” means “a lack of freely
given consent.” RCW 7.105.010(26). “Sexual conduct” means any of the

No. 85464-0-I/4
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following:
(a) Any intentional or knowing touching or fondling of the
genitals, anus, or breasts, directly or indirectly, including through
clothing;
(b) Any intentional or knowing display of the genitals, anus,
or breasts for the purposes of arousal or sexual gratification of the
respondent;
(c) Any intentional or knowing touching or fondling of the
genitals, anus, or breasts, directly or indirectly, including through
clothing, that the petitioner is forced to perform by another person
or the respondent;
(d) Any forced display of the petitioner’s genitals, anus, or
breasts for the purposes of arousal or sexual gratification of the
respondent or others;
(e) Any intentional or knowing touching of the clothed or
unclothed body of a child under the age of 16, if done for the
purpose of sexual gratification or arousal of the respondent or
others; or
(f) Any coerced or forced touching or fondling by a child
under the age of 16, directly or indirectly, including through clothing,
of the genitals, anus, or breasts of the respondent or others.
RCW 7.105.010(32). And “sexual penetration” means
any contact, however slight, between the sex organ or anus of one
person by an object, the sex organ, mouth, or anus of another
person, or any intrusion, however slight, of any part of the body of
one person or of any animal or object into the sex organ or anus of
another person including, but not limited to, cunnilingus, fellatio, or
anal penetration. Evidence of emission of semen is not required to
prove sexual penetration.
RCW 7.105.010(33).
Under RCW 7.105.225, the court must issue a protection order if it finds
by a preponderance of the evidence that the petitioner proved the required
criteria for obtaining a protection order. The court may not deny a petition for a
protection order on the basis that the conduct alleged does not meet the criteria
for the issuance of the order requested if the conduct would satisfy the elements
of another type of order. RCW 7.105.100(5).

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Here, Tsukanova testified that Smith raped her several times. And while
she petitioned for only an AHPO, she asked the court to issue either an AHPO or
SAPO. The court considered her request to issue one of the two protection
orders. But it concluded that “it did not appear . . . the petitioner’s statements
were fully credible in weight of the totality of the circumstances.” And it refused
to issue either order. It is not manifestly unreasonable for the court to refuse to
issue a protection order when it finds a petitioner’s allegations are not credible.
Because the court’s ruling does not amount to an abuse of discretion, we
affirm the court’s denial of Tsukanova’s petition for a protection order.
WE CONCUR: