K. A. L., Petitioner-Respondent,
David John HINKLE, Respondent-Appellant.
Submitted March 20, 2017
County Circuit Court 16SK00371; A161950 Ronald D. Grensky,
Christopher Missiaen fled the brief for appellant.
appearance for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
appeals from the stalking protective order (SPO) entered
against him under ORS 163.738(2)(a)(B) after he intentionally
engaged in "repeated and unwanted contact, " both
expressive and nonexpressive, with petitioner. Respondent
argues that petitioner presented insuffcient evidence to
support an SPO. Held: The evidence presented was
insuffcient to support an SPO as a matter of law. First,
respondent's expressive contacts, which included letters,
voice mails, and text messages, did not amount to
"unequivocal" threats "objectively likely to
be followed by unlawful acts, " as required by State v.
Rangel, 328 Or. 294, 303, 977 P.2d 379 (1999), and thus are
protected by Article I, section 8, of the Oregon
Constitution. Second, respondent's nonexpressive contacts
were not objectively alarming, ORS 163.738(2)(a)(B)(ii),
meaning that the contacts would not objectively "cause
apprehension or fear resulting from the perception of danger,
" ORS 163.730(1). Finally, respondent's
nonexpressive contacts did not cause petitioner reasonable
apprehension regarding her personal safety, ORS
Or.App. 342] SHORR, J.
appeals a stalking protective order (SPO) that the trial
court entered against him, arguing that the order was not
supported by sufficient evidence. We are bound by the trial
court's findings of fact if they are supported by
"any evidence, " and we review its legal
conclusions for errors of law. Roth v. Kins. 272
Or.App. 381, 382, 356 P.3d 153 (2015). Applying that
standard, we conclude that the evidence presented in this
case is insufficient to support an SPO as a matter of law.
Accordingly, we reverse.
review the sufficiency of the evidence supporting an SPO, we
view the evidence and all reasonable inferences that may be
drawn from it in the light most favorable to petitioner.
Noriega v. Parsons, 253 Or.App. 768, 770, 296 P.3d
522 (2012). In accordance with that standard, the facts of
this case are as follows. Petitioner and respondent met and
began a casual social relationship. Eventually, petitioner
tried to distance herself from respondent, largely because
respondent attempted to contact petitioner too often.
Sometime later, respondent drove to petitioner's home in
the evening, parked on the street nearby, and sat in his car
for a short period of time. Before driving away, respondent
called petitioner and left a voicemail message stating that
he had come to talk to her, but left after he saw that she
had a guest. Petitioner, who saw respondent's car on the
street, promptly texted respondent that he should never come
to her house again. Following that incident, respondent
attempted to contact petitioner a number of times via text,
social media, and phone calls. Despite petitioner repeatedly
asking respondent to stop contacting her, respondent's
attempts to contact petitioner only escalated. At one point,
respondent brought two bottles of "Bubbly Bitch"
brand wine to petitioner's home while she was out, and
left them on her doorstep with a handwritten letter and a
handwritten note that said "my favorite kind of
bitch." Shortly thereafter, petitioner blocked
respondent's phone number and social media accounts. Over
the next few weeks, respondent sent petitioner two more
handwritten letters. In the letters, [288 Or.App. 343]
respondent repeatedly apologized to petitioner,
"beg[ged] for forgiveness, " and referred to a
"connection" that he believed that the two of them
shared. Respondent called petitioner "doll, " and
wrote that, although his efforts might be "futile,
" he "refuse[d] to lose amazing people in [his]
between receiving the second and third letters, petitioner
filed a stalking complaint with the police and sought an SPO.
The trial court issued a temporary protective order and
scheduled a hearing. At the hearing, the court heard the
foregoing facts. Over respondent's objections to the
sufficiency of the evidence, the court then issued a
permanent SPO, which respondent timely appealed.
sole assignment of error, respondent argues that the trial
court erred because there was insufficient evidence to
support the SPO. Specifically, respondent argues that (1)
petitioner failed to establish that there were
"repeated" qualifying contacts with petitioner, as
required by ORS 163.738(2)(a)(B)(i); (2) none of his
speech-based contacts constituted a "threat" as
defined by State v. Rangel. 328 Or. 294, 302-03, 977
P.2d 379 (1999); and (3) petitioner did not present evidence
to support a finding that she reasonably feared for her
personal safety as required by ORS 163.738(2)(a)(B)(iii).
court may enter an SPO if the court finds, among other
things, that a person intentionally or recklessly engaged in
"repeated and unwanted contact" with another person
that alarms that person. ORS 163.738(2)(a)(B)(i).
"Repeated" means at least two incidents. ORS
163.730(7). "Contact" includes speaking or writing
to a person, delivering objects to his or her home, waiting
outside the person's home, and a host of other behaviors.
ORS 163.730(3). "Alarm means to cause apprehension or
fear resulting from the perception of danger, " ORS
163.730(1), and "danger, " in turn, refers to
"a threat of physical injury, not merely a threat of
annoyance or harassment." Roth, 272 Or.App. at
386. The nature of the contacts must be such that the
resulting alarm is objectively reasonable. ORS