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K. A. L. v. Hinkle

Court of Appeals of Oregon

October 18, 2017

K. A. L., Petitioner-Respondent,
v.
David John HINKLE, Respondent-Appellant.

          Submitted March 20, 2017

         Jackson County Circuit Court 16SK00371; A161950 Ronald D. Grensky, Judge.

          Christopher Missiaen fled the brief for appellant.

          No appearance for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Respondent 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 163.738(2)(a)(B)(iii).

         Reversed.

         [288 Or.App. 342] SHORR, J.

         Respondent 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.

         When we 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."[1] 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] life."

         Sometime 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.

         In his 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).

         A trial 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 ...


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