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D.M.G. v. Tepper

Court of Appeals of Oregon

May 17, 2017

D. M. G., Petitioner-Respondent,
v.
Genisis TEPPER, Respondent-Appellant.

          Submitted March 21, 2017

         Jackson County Circuit Court 16SK00020; Ronald D. Grensky, Judge.

          Tracey R. Howell fled the brief for appellant.

          James A. Wallan and Hornecker Cowling LLP fled the brief for respondent.

          Before Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         Respondent appeals from the trial court's entry of a stalking protective order (SPO) pursuant to ORS 30.866(1). The trial court issued the SPO based on two incidents. In the frst, respondent stood in front of petitioner at a high school football game and said, "[w]ouldn't it be funny if I maced her?" In the second, respondent directed a third party to smear fsh on petitioner's car. On appeal, respondent argues that the trial court erred when it granted the SPO because neither contact qualifes as a basis for issuing an SPO under ORS 30.866(1). Held: The trial court erred when it issued the SPO. The frst incident, which involved expressive conduct, failed to satisfy the heightened standard necessary to be a qualifying contact under State v. Rangel, 328 Or 294, 303, 977 P.2d 379 (1999). With respect to the second incident, petitioner's alarm as a result of having fsh smeared on her car was not objectively reasonable.

         Reversed.

          FLYNN, J. pro tempore.

         Respondent appeals from the trial court's entry of a stalking protective order (SPO) pursuant to ORS 30.866(1).[1]Respondent argues that the trial court erred when it granted the order because the evidence does not permit a finding that respondent engaged in "repeated and unwanted contact" that meets the requirements for issuance of an SPO. We agree with respondent and, accordingly, reverse.

         ORS 30.866(1) provides that a person may obtain an SPO against another person if:

"(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person's immediate family or household thereby alarming or coercing the other person;
"(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and
"(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's ...

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