K. A. L., Petitioner-Respondent, v. HINKLE

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Court of Appeals of Oregon.

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

A161950

    Decided: October 18, 2017

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge. Christopher Missiaen filed the brief for appellant. No appearance for respondent.

 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. King, 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 there-after, 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,  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, 356 P.3d 153. The nature of the contacts must be such that the resulting alarm is objectively reasonable. ORS 163.738(2)(a)(B)(ii). Finally, the contacts must also cause the contacted person reasonable apprehension regarding his or her personal safety. ORS 163.738(2)(a)(B)(iii).

 In Rangel, 328 Or. 294, 977 P.2d 379, the Supreme Court held that, in cases where the contacts are expressive, such as speech or writing, as opposed to nonexpressive behaviors, Article I, section 8, of the Oregon Constitution requires, in addition to the statutory elements just described, that the petitioner requesting an SPO prove that those expressive contacts constitute “threats.” A threat is a “communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” Id. at 303, 977 P.2d 379. In addition, the threat must be “so unambiguous, unequivocal, and specific to the addressee that it convincingly expresses * * * the intention that it will be carried out.” Id. at 306, 977 P.2d 379.

In this case, respondent's contacts with petitioner were predominantly letters and other written and verbal communications; that is, they were expressive contacts. To support an SPO, at least two of those communications must meet Rangel's definition of a “threat.” None do. Neither respondent's letters, nor the note left with the wine at petitioner's home, express an “unambiguous [and] unequivocal” threat to petitioner, much less an intention to harm her. Respondent's communications may have been inappropriate and subjectively alarming to petitioner, and were certainly unwanted, but we cannot conclude that they gave rise to an “unequivocal” threat “objectively likely to be followed by unlawful acts,” as required by Rangel, 328 Or. at 303, 977 P.2d 379. See, e.g., Roth, 272 Or. App. at 387, 356 P.3d 153 (“Although respondent's communications were unwanted[,] *** they did not suggest that respondent would engage in unlawful or violent conduct. Thus, we cannot conclude that respondent's communications qualify as ‘threats' under Rangel [.]”); Michieli v. Morgan, 192 Or. App. 550, 555, 86 P.3d 688 (2004) ( “Although there is *** evidence of repeated and unwanted contact with petitioner that reasonably caused her alarm, the fact remains that there is a complete absence of evidence of an ‘unequivocal’ threat that instilled in petitioner an objectively reasonable fear of imminent and serious personal violence.”).

Respondent also sent a number of text messages, social media messages, and voicemail messages to petitioner after she asked him to stop, until petitioner eventually blocked respondent on her cell phone and social media  accounts. Like the letters, however, there is no evidence that those expressive communications were in any way threatening under Rangel's construction of that term.2

Respondent's nonexpressive contacts are similarly insufficient to support the SPO, as they are not objectively alarming. ORS 163.738(2)(a)(B)(ii). At one point, respondent drove to petitioner's home during the evening, waited for a short period of time in his car, and then drove away, after leaving a voicemail message on petitioner's phone telling her that he had come to talk to her but had decided against it. Waiting outside a person's home is a contact that the court may consider when issuing an SPO. ORS 163.730(3). However, respondent's brief visit, though unwanted, is not objectively alarming to the degree necessary to support the issuance of an SPO. ORS 163.738(2)(a)(B)(ii). See, e.g., Weatherly v. Wilkie, 169 Or. App. 257, 262, 8 P.3d 251 (2000) (“[W]e are unpersuaded that respondent's contacts would have caused a reasonable person in petitioner's position to feel alarmed, or reasonably to be apprehensive about her personal safety. None of the contacts [including one, or at most two, drives past petitioner's home] is either implicitly or explicitly threatening.”).

On another occasion, respondent left wine at petitioner's doorstep with the inappropriate message that referred to petitioner as a “bitch.” Petitioner was not at home at the time. Again, although that behavior understandably made petitioner uncomfortable, it is not the sort of behavior that would objectively “cause apprehension or fear resulting from the perception of danger.” ORS 163.730(1). Indeed, there was no evidence presented at trial that the contact caused petitioner to be concerned about her personal safety. ORS 163.738(2)(a)(B)(iii). See King v. W. T. F., 276 Or. App. 533, 540, 369 P.3d 1181 (2016) (“[A]lthough it is clear that respondent engaged in a series of unwelcome contacts with petitioner[, including leaving a bouquet of flowers on her doorstep while she was out], there is no basis for concluding that respondent's behavior would have caused petitioner to  have an objectively reasonable fear for her personal safety.”); Roth, 272 Or. App. at 383, 356 P.3d 153 (reversing issuance of an SPO where the respondent's nonexpressive contacts included, among other things, leaving “several pots of flowers on [petitioner's] front porch, along with scented soap bars and decorative signs”).

In sum, the record in this case lacks sufficient evidence to support entry of the SPO against respondent. Therefore, we conclude that the trial court erred in issuing the SPO.

Reversed.

FOOTNOTES

1.   Respondent claimed at the SPO hearing that the note referred to an “inside joke” between himself and petitioner.

2.   Because none of respondent's expressive contacts constitute a threat under Rangel, we need not decide whether an SPO might be warranted under the statutory analysis provided by ORS 163.738(2)(a)(B) based on those contacts.

SHORR, J.

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