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W.M. v. Muck

Court of Appeals of Oregon

December 3, 2014

W. M., guardian ad litem, Petitioner-Respondent,
v.
CHARLES MUCK, Respondent-Appellant

Submitted March 13, 2014.

Yamhill County Circuit Court. CV110221. Carroll J. Tichenor, Judge.

Brent J. Goodfellow and Johnstone & Goodfellow filed the brief for appellant.

Vincent A. Deguc filed the brief for respondent.

Before Duncan, Presiding Judge, and Hadlock, Judge, and Lagesen, Judge.

OPINION

[267 Or.App. 369] HADLOCK, J.

Respondent appeals a judgment that imposed a permanent stalking protective order (SPO) against him, contending that the evidence was insufficient and that the trial court therefore erred in imposing it. We agree with respondent and reverse.

Respondent requests that we review the record de novo. See ORS 19.415(3) (the Court of Appeals may, in our sole discretion, review an equitable case de novo ). This, however, is not an " exceptional case." See ORAP 5.40(8)(c) (" The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases." ). " Therefore, we review the facts for any evidence and the legal conclusions based on those facts for errors of law." Langford v. Langford, 262 Or.App. 409, 410, 324 P.3d 623 (2014) (internal quotation marks omitted).

Petitioner and her family live next door to respondent.[1] One night, at around 9:00 p.m., petitioner's father contacted law enforcement to complain that respondent was playing loud music. The music stopped when the sheriff arrived. The next day, petitioner, then 14, was playing basketball in the driveway of Fong, a mutual neighbor. Fong's house is sited diagonally across the street from petitioner's home and directly across from respondent's. One of Fong's sons was playing with petitioner when respondent arrived home. Respondent backed his truck into his

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driveway and crossed the street to check his mailbox, which was located near Fong's driveway. Petitioner heard respondent say, over his shoulder, that he would report her and her friend to the police for making noise, referring to the bouncing of the basketball. When asked, at trial, what effect respondent's statement had on her, petitioner stated that it " wasn't something I necessarily expected from him" and that it was " important [267 Or.App. 370] enough to let my dad know about." Petitioner went home. Her father arrived there a short time later.

About 20 minutes after that first incident, petitioner went back outside to walk over to the Fong residence to retrieve some items that she had left there. When she got to the end of her driveway, she heard respondent talking on a cell phone. He was standing in his driveway. Respondent was not talking loudly enough for petitioner to make out what he was saying. By the time she got to the bottom of Fong's driveway, however, respondent began to talk louder. When asked what respondent was saying, petitioner testified:

" Things like[,] what goes around comes around. And I know that as if you were saying that he knew that was the way things worked. And that it was open now, and the war was on. And that I don't usually use language, but I knew he was talking about my dad because he was referring to a man [using a profane and unflattering term], and he was repeating that over ten times."

While she was in Fong's house, petitioner continued to hear respondent talking, but was unable to understand what he was saying. She then left Fong's to return home; while making that trip, she continued to hear respondent, who remained in his driveway, saying " [m]ainly the same things." When asked about the effect of hearing respondent's statements, petitioner stated: " I was * * * very shocked. And coming back to my house, I didn't think I would lose my composure, I didn't ...


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