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State v. MacDonald

Court of Appeals of Oregon

September 27, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
KENNETH FRANK MacDONALD, Defendant-Appellant.

          Argued and submitted August 23, 2017.

         Washington County Circuit Court D152120M; Kirsten E. Thompson, Judge.

          Anna E. Belais, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for violating a stalking protective order that prevented him from, among other things, "[w]aiting outside" his daughter's school. The conviction was based on evidence that, in an effort to contact school administrators when classes were not in session, defendant stood outside the school for about ten seconds-the amount of time between when he pressed the school's door buzzer and when an office assistant remotely unlocked the door to let him enter. Defendant argues that that type of "waiting outside" is not what was contemplated by the stalking protective order and that the court should have granted his motion for a judgment of acquittal on the charge of violating the order. Held: The state's evidence of defendant's momentary pause-which was incidental to, and solely for the purpose of gaining access to the school-was legally insufficient to prove that he was "waiting outside" the school within the meaning of the stalking protective order.

         [288 Or. 21]

          DeVORE, J.

         Defendant appeals a judgment of conviction for violating a stalking protective order that prevented him from, among other things, "[w]aiting outside" his daughter's school. The conviction was based on evidence that, in an effort to contact school administrators when classes were not in session, defendant stood outside the school for about 10 seconds-the amount of time between when he pressed the school door's buzzer and when an office assistant remotely unlocked the door to let him enter. Defendant argues that that type of "waiting outside" is not what was contemplated by the stalking protective order and that the court should have granted his motion for a judgment of acquittal on the charge of violating the order. We agree and reverse his conviction.

         Because defendant challenges the sufficiency of the state's proof, we describe the facts in the light most favorable to the state. See, e.g., State v. Makin. 360 Or. 238, 240, 381 P.3d 799 (2016). Defendant and his ex-wife, L, have two daughters, who both live with L. In July 2011, defendant was served with a permanent stalking protective order that required him to "stop any contact with [L] and any attempt to make contact with [L]." The order defines "contact" to include, among other things, "[w]aiting outside the home, property, place of work or school of [L] or of a member of [L's] family or household * * * unless otherwise modified by [defendant and L's] parenting plan."

         Under their parenting plan, defendant had visitation rights on Sundays only, so he did not take either of his children to or from school. On June 5, 2015, defendant went to a daughter's school about two and a half hours after L had picked up the daughter, P, from the school. Defendant was with a companion. They walked to one of the school's doors, which was locked and required a visitor to use a passcode or ring a door buzzer. Defendant did not have the code, so he pressed the button. The buzzer alerted a school employee, A, to their presence.

         After pressing the button, defendant and his companion waited outside for "all of maybe 10 seconds, " before A remotely unlocked the door by pushing a button in the school [288 Or. 22] office. Defendant and his companion entered the school, walked directly to the office, and spoke with A. Defendant identified himself and asked A to put his name on a list of parents who wished to receive emails from the school and asked for information about how to access the school's student-information database. Defendant had called ahead and been told he needed to make those inquiries in person. Upon completing that business-eight to 10 minutes after entering the school office-defendant and his companion left the school.

         Based on his conduct at the school, the state charged defendant with violating the protective order. See ORS 163.750(1) (making it a crime to engage "intentionally, knowingly or recklessly in conduct prohibited by the order"). The misdemeanor complaint alleged that defendant "did unlawfully and recklessly engage in conduct prohibited by the order and not modified by the parenting plan, by waiting outside [P's school], the school of a member of the immediate family of [L]." (Emphasis added.)

         Defendant waived his right to a jury, and the case was tried to the court. After the state presented its case, defendant moved for a judgment of acquittal. Defendant argued that nothing in the stalking protective order prevented him from being present at the school, and that the state had charged the case based solely on "waiting outside" the school. According to defendant, "there's no waiting. Waiting is being stationary with an expectation of something to happen, " whereas ...


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