A. A. C., Petitioner-Respondent,
John Paul MILLER-POMLEE, Respondent-Appellant. 296 Or.App. 816
and submitted April 13, 2018
County Circuit Court 16SK01182 Clara L. Rigmaiden, Judge.
Michael Vergamini argued the cause and fled the brief for
S. Shelton and Arnold Law fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
appeals a permanent stalking protective order (SPO), arguing
that (1) the trial court erred in determining that text
messages he sent to petitioner constituted unwanted contact
for purposes of the civil stalking statute, ORS 30.866; (2)
the record contains no evidence to support the trial
court's finding that respondent electronically tracked
petitioner's whereabouts; and (3) "tracking" is
not a "contact" sufficient to support entry of an
SPO under ORS 30.866.
trial court did not err. First, the trial court did not rely
on the text messages that respondent sent to petitioner as a
predicate contact for issuance of the SPO. Instead, it relied
on respondent's electronic tracking of petitioner's
whereabouts. Second, the record contains evidence that
respondent was electronically tracking petitioner's
whereabouts. Third, electronically tracking someone's
whereabouts is a "contact" under ORS 163.730(3).
Moreover, the record was legally suffcient to permit the
trial court to use respondent's electronic tracking of
petitioner as a predicate contact for issuance of a permanent
SPO under ORS 30.866.
Or.App. 817] TOOKEY, J.
appeals a stalking protective order (SPO) that the trial
court entered against him. On appeal, respondent contends, among
other points, that (1) the trial court erred in "finding
that objectively non-threatening text messages constituted
*** unwanted contact" for purposes of the civil stalking
statute, ORS 30.866; (2) the record contained insufficient
evidence to support the trial court's finding that
respondent was "tracking" petitioner's
wherabouts; and (3) in any event, "tracking" is not
a "contact" sufficient to support entry of an SPO
under ORS 30.866. We conclude the trial court did not err and
review the trial court's factual findings for 'any
evidence' and its legal conclusions for errors of
law." Christensen v. Carter/Bosket, 261 Or.App.
133, 135, 323 P.3d 348 (2014). "As in other equitable
proceedings, we view the evidence, as supplemented and
buttressed by permissible derivative inferences, in the light
most favorable to the trial court's disposition and
assess whether, when so viewed, the record was legally
sufficient to permit that outcome." Id.
(internal quotation marks omitted). We state the facts
consistently with that standard.
and respondent were romantically involved from May 2010 until
November 2014. During that time, they had a child together,
L. Over the course of their relationship, respondent was
physically and verbally abusive to petitioner. The physical
abuse included, among other things, grabbing and squeezing
petitioner's throat, throwing "anything that he
could get his hands on" at petitioner- e.g.,
shovels, garden pots, and a box of chalk-pushing petitioner
to the ground, pushing a large oil heater over onto
petitioner's foot, and stomping on petitioner's feet.
The verbal abuse included, among other things, threatening
that, if petitioner "hurt his feelings," he would
"hurt [her] ten times worse," telling petitioner
that she was "ugly" and that her "feet were
disgusting," and accusing petitioner of being a [296
Or.App. 818] "whore." Some of respondent's
abusive conduct occurred in front of L.
during their relationship, respondent tried to exercise
control over petitioner. For example, he attempted to control
what she wore, to whom she talked, who she was around, and
how often she was on her phone. If petitioner did not do what
respondent wanted, he would "punish" her by, for
example, taking her cell phone, car keys, or money, so that
she could not pay bills.
November 2014, after petitioner and respondent separated,
petitioner and respondent met in a parking lot for respondent
to return some of petitioner's possessions. When their
conversation did not go as respondent had wanted it to go, he
"took his body and slammed [petitioner's] body into
[petitioner's] car." L was in the backseat of the
car when that occurred. During the SPO hearing, petitioner
testified that this made her feel "terrified"
because (1) respondent had previously "hurt"
petitioner and "grabbed her throat" and (2) it
occurred in a public place, "in front of people,"
which demonstrated to petitioner that respondent "had no
November 2014, petitioner filed for and received a temporary
restraining order against respondent. In December 2014,
respondent and petitioner agreed to a "mutual no contact
however, did not comply with the terms of the mutual no
contact order. Instead, he continued to call petitioner and
"say abusive things" to her. He also frequently
sent petitioner unwanted and "abusive" text
messages. As a result of this conduct, sometime around July
2015, petitioner changed her phone number. She did not give
respondent her new phone number.
as described below, respondent began to send petitioner text
messages that indicated that he was monitoring
petitioner's email communications and tracking her
2015, after petitioner had changed her phone number, she
emailed her new phone number to a Department of Human
Services caseworker from her personal email [296 Or.App. 819]
account. Petitioner did not share her personal email account
with respondent, did not want him accessing her personal
email account, and had never given him permission to access
her personal email account. Nevertheless, after petitioner
emailed her new phone number to the caseworker, respondent
began sending text messages to petitioner's new phone
2016, after taking L to a soccer clinic, petitioner received
a text message from respondent indicating that respondent
knew that petitioner had taken L to the soccer clinic and
indicating that respondent had pictures of L that were taken
during the soccer clinic. This "[r]eally scared"
petitioner because she did not "know how [respondent]
knew where [she and L] were."
after receiving the text message from respondent regarding
the soccer clinic, petitioner emailed her attorney from her
personal email account. Petitioner then received a text
message from respondent indicating he had read the email that
she had sent to her attorney. In the text message, respondent
also accused petitioner of "making up lies," and
called petitioner a "liar," a "deadbeat
mom," and a "low life." Petitioner was
"alarmed" because she did not know how respondent
had read the email between her and her attorney.
May of 2016, respondent sent a text message to petitioner
asking her what had caused a scar on L's cheek. In
actuality, L had the remnants of a temporary tattoo on his
cheek. Petitioner was "concerned" and
"afraid" because, at the time, respondent did not
have visitation with L, and, according to petitioner,
respondent would have "had no way of knowing if [L] had
anything on his cheek." Petitioner was also
"concerned" because (1) she did not know if
respondent was following her, or if she and L were being
photographed again and (2) respondent had previously
"retaliated" against petitioner when he thought L
was injured. That retaliation included threatening to hurt
petitioner. Petitioner explained during the ...