Tara appealed.

The trial record was assembled and transmitted to the California Court of Appeal, First Appellate District, Division Four. Case No. A165356. The briefs were filed. The arguments were made. Walsh raised three.

The first argument: the trial court erred in refusing to continue the trial when Walsh told the court she was having mental health issues.

The appellate court disagreed. When Walsh first made the request for a continuance, the jury had already been sworn and she had already delivered an opening statement in propria persona. The trial court observed that Walsh had withstood examination by opposing counsel and appeared to understand the nature of the proceedings. The court told her directly: it was not precluding her from presenting a psychiatrist’s note, but if she wished to continue the case, the court would require good cause. Walsh never provided the note. She never established good cause. She had represented herself through voir dire, through opening statements, through direct examination. The court concluded she was able to proceed.

The appellate court found no abuse of discretion.

The second argument: the evidence was insufficient to support the jury’s verdict on all three torts, battery, intentional infliction of emotional distress, and domestic violence.

The appellate court found this claim waived.

When challenging the sufficiency of evidence on appeal, the appellant’s burden is to set forth in her brief all the material evidence on the point, not merely her own evidence. Walsh’s opening brief summarized only her own testimony. It neglected Russell’s testimony, which described symptoms he experienced, how those symptoms would abate in Walsh’s absence, what the appellate opinion described as a blood test revealing high lithium levels (the laboratory report linked in this edition is a urine report), and the statements of a nanny who had witnessed Walsh drugging his wine. By failing to set forth all the material evidence pertaining to battery, intentional infliction of emotional distress, and domestic violence, Walsh’s claims were deemed waived.

She had told only her side of a story the jury had already heard in full. Not that the brief had fabricated — it had omitted, which in appellate review carries the same weight, because the court is entitled to treat what the appellant declines to mention as what the appellant cannot contest.

The appellate court then addressed the merits anyway.

Even if Walsh’s claims were not waived, the court found, substantial evidence supported the jury’s verdict on all three torts.

On battery: Walsh admitted to drugging Russell’s wine and placing it near him, intending that he ingest the drug. Russell explained the sensations he experienced: the abnormal symptoms, the panic upon realizing he had been drugged, the subsequent withdrawal and neuropathy. The jury could reasonably find that Walsh intentionally did an act which resulted in harmful or offensive contact with Russell’s person.

Walsh argued self-defense. The appellate court noted that self-defense requires the defendant to have reasonably believed, in view of all the circumstances, that the plaintiff was going to harm her. Russell testified that he never physically harmed Walsh or threatened her with physical harm. The jury apparently resolved the question of credibility against Walsh.

Walsh argued consent, that Russell had impliedly consented to being drugged. She cited two cases involving medical consent forms. The appellate court found neither case relevant. Those cases involved doctors and signed consent forms, professionals in a clinical setting, the patient informed, the document executed with a pen. This case involved a woman putting drugs in a man’s wine without telling him. That the defense could locate no authority closer to the facts than a signed medical waiver said something the brief itself did not say: there is no body of case law recognizing implied consent to being covertly poisoned by an intimate partner, because no court has been asked to find that such consent exists.

On intentional infliction of emotional distress: Walsh’s extreme and outrageous conduct consisted of drugging Russell’s wine without his knowledge or consent. Her reckless disregard for the probability of causing emotional distress could be inferred from the fact that she accompanied Russell to the emergency room on one of his trips for a toxicology report when he suspected he had been drugged. She knew he was in distress. She later drugged him again.

On domestic violence: Walsh did not contest that she and Russell had the requisite relationship. The injury finding was supported by the evidence that Walsh placed Russell in reasonable apprehension of imminent serious bodily injury by inducing the panic he experienced upon noticing he had been drugged, panic that resulted in symptoms including withdrawal and neuropathy.

The court’s conclusion was a single sentence: “Finding none of these arguments persuasive, we affirm the judgment.” Russell was entitled to recover his costs on appeal.

The opinion was filed September 15, 2023. Justice Goldman wrote for the court. Justice Streeter and Justice Hiramoto concurred. The opinion is captioned Stephen Russell v. Tara Walsh, A165356. It was not certified for publication in the official reports.

The appeal had taken more than a year after the verdict. The legal system had processed briefs, assembled the appellate record, reviewed the transcript, considered the arguments, and produced a reasoned opinion affirming the judgment — in the time it takes a child to grow from four to five and a half. Steve received word the way litigants receive appellate opinions: as a filed opinion carrying the authority of three justices who had reviewed the record and found nothing to disturb. The judgment had survived this appeal. The verdict remained in the record, a foundation for what Steve hoped would follow. And it changed nothing. Evie was behind the same gate. The custody order was the same order. The permanence of the verdict produced a strange new weight — not the heaviness of “real” that had arrived in the courtroom, but the heaviness of knowing that permanent and irreversible are not the same as effective. The stone was carved. The stone could not reach Chappaqua.

Steve had already taken the judgment to Westchester County Supreme Court under Index No. 55523/2023. The affidavit in support of registration was filed on January 13, 2023, eight months before the appeal was decided. Full Faith and Credit. The Constitution requires it. A judgment entered in one state must be recognized and enforced by another.

The California judgment for battery, domestic violence and intentional infliction of emotional distress was now enforceable in the same county where the family court orders remained in effect. The separate punitive award had been struck. In New York, the appellate court had narrowed the speech restrictions and rejected the default characterization of the February 2022 order. It had not ruled that the hearing never occurred, and it had not vacated custody. The distance between those outcomes was what Steve wanted someone to examine.

Two court systems. Two states. Two appellate courts.

In California, the battery verdict was final. The jury’s determination that Tara Walsh had committed battery, with a separate punitive finding of malice, oppression or fraud was embedded in the civil record, indexed, permanent, affirmed on appeal.

In New York, the Appellate Division had held that the February 2022 order was not entered on default and replaced the blanket deletion command with a narrower directive. It upheld the remaining speech restrictions.

Both records existed simultaneously. The California record said Steve had been battered. The New York record narrowed the speech restrictions and rejected the default characterization of the February 2022 order. And in the space between those two records — in the gap between what the courts had found and what had changed as a result — the custody order remained. The child remained in New York.

The battery verdict was final. The custody situation was unchanged.

Evie was five. She had never seen a courtroom. She did not know that two appellate courts in two states had reviewed the facts of her life and reached conclusions about the people who raised her. She knew only what the people around her told her, and her mother was the person the jury had found liable, and the affirmed judgment had not brought her back to her father.