Boyd v. Essin

• Decision Date: 18 October 2000
• Citation: 170 Or. App. 509,12 P.3d 1003
• Parties: Linda BOYD, Respondent, v. George ESSIN, Appellant.
• Court: Oregon Court of Appeals

12 P.3d 1003

170 Or. App. 509

Linda BOYD, Respondent, v. George ESSIN, Appellant.

(18-98-09414; CA A102768)

Court of Appeals of Oregon.

Argued and Submitted February 11, 1999.

Decided October 18, 2000.

William N. Kent, Eugene, argued the cause and filed the briefs for appellant.

Nyla L. Jebousek, Lane County Legal Aid Service, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER¹, Judges.

KISTLER, J.

The trial court issued a permanent stalking protective order enjoining respondent George Essin from contacting petitioner Linda Boyd.² On appeal, respondent argues that the record does not establish a sufficient basis for the order. We review de novo and affirm.

Petitioner and respondent were married. They had seven children. In May 1997, their second oldest son came home and found his father (respondent) and his sister arguing. The son explained that respondent was "trying to kick my sister out of the house and shoving her back down the hallway." The son stepped between respondent and his sister and "told him that he wasn't going to do that. That this was a house for the kids and the family." Respondent pushed his son down the hallway. At that point, the daughter said that someone should call 9-1-1. When the son tried to do so, respondent "slammed his [sic] down and grabbed the phone out of [his son's] hand and, uh, threw that down to[o] and shoved [his son] back to the door." The son testified, "[A]t that point, he head butted me. Uh, flung open the door, uh wrestled me out, um, pushed me down the sidewalk and hit me in the back of the neck." Respondent's actions that day were not unusual. Rather, as the son agreed, respondent's actions were "characteristic of his behavior as [the son] was growing up."

Approximately two months later, on June 24, 1997, the trial court issued a restraining order against respondent. As part of the order, the court found that "[p]etitioner [Linda Boyd] has been abused by respondent [George Essin] as defined in ORS 107.705" and that the abuse had occurred within 180 days. Abuse, as defined in ORS 107.705, means one of three things: (1) attempting to cause or causing bodily injury; (2) intentionally, knowingly, or recklessly placing another in fear of imminent bodily injury; or (3) causing another to engage in involuntary sexual relations by force or threat of force. See ORS 107.705(1) (defining abuse). The restraining order does not specify the particular way in which respondent abused petitioner. Respondent, however, told his anger management counselor that "he believes he had an anger problem during the spring and summer of 1997," the period during which the restraining order was issued. Petitioner told the counselor, more specifically, that respondent "threatened her once with a gun, and once with a baseball bat."³

After the restraining order issued, the parties separated. Approximately ten months later, their marriage was dissolved. Petitioner testified that, after they separated, respondent confronted her at public events. One time, he stood by the door when she tried to leave church. She testified that she walked by him quickly and went to pick up one of the children but "three times before I could make it to the van [respondent] was standing between me and my children or between me and the van." Sometimes, respondent would try to speak to her. According to petitioner, "it usually starts off nice." "He tells me that he loves me and that he will never have anyone else. And he doesn't know how he'll go on without me and then he becomes angry and he goes from one extreme to the other." When asked whether respondent had threatened her physically when he got angry, petitioner answered: "Not in public, no, he doesn't. Yes, in private many times."

When asked whether respondent had confronted her only at their church and at their children's school events, petitioner answered, "[N]ow [that] he can't come by my house anymore I don't see his vehicle going by my house multiple times per day. In fact, since th[e temporary] stalking order has been in place it has been a relief. I went to my daughter's concert and I got to hear my oldest daughter sing."

After their separation, petitioner began getting telephone calls in the middle of the night.⁴ No one would respond when she answered. Because petitioner could not be sure who was calling her, she got caller ID. After that, she knew when respondent was calling. Sometimes respondent called to speak to the children, which the restraining order permitted him to do.⁵ Other times, he called at odd hours. He called at 3:51 in the morning, he called when the children were not in, or he called when petitioner was supposed to be at work. Petitioner's witness testified:

"I've been to your house on numerous occasions when [respondent] has made repeated, numerous phone calls where I could hear him yelling and screaming at you and you would be asking him to please not call you and hanging up. And then, you know, there would be another immediate phone call with him, you know. Saying, you know, I didn't hear what he said but it was, you know, I could hear him yelling. And then you eventually having to take the phone off the hook."

Shortly before petitioner filed for a stalking protective order, her neighbors saw respondent parked outside petitioner's house in his car, more than 1,000 feet from the house as the restraining order required. He was watching her home with binoculars. He drove away immediately after being spotted. When one of the neighbors saw him the next day, respondent said that he "had to document something," although he testified at the hearing that he was trying to see if petitioner was home so that their son could go to church with her.

The civil stalking statute authorizes a court to issue a stalking protective order against someone who intentionally, knowingly, or recklessly engages in "repeated and unwanted contact" with another person that alarms or coerces that person. ORS 30.866(1)(a).⁶ The resulting alarm or coercion must be objectively reasonable. ORS 30.866(1)(b). Finally, the contact must cause the person to have a reasonable apprehension regarding his or her personal safety or the safety of the person's immediate family or household. ORS 30.866(1)(c).

Some of the contacts that cause alarm may involve communication. See ORS 163.730(3) (defining the term "contact");⁷ State v. Rangel, 328 Or. 294, 300, 977 P.2d 379 (1999). Others may not. See id. When a party relies on contacts that involve expression to obtain a stalking protective order, the courts have required that a more stringent standard than the one set out in the statute be met to avoid overbreadth problems. See id. at 301, 977 P.2d 379; Hanzo v. deParrie, 152 Or.App. 525, 542, 953 P.2d 1130 (1998), rev. den. 328 Or. 418, 987 P.2d 512 (1999). As the court also explained in Rangel, however, "[n]o overbreadth problem arises if none of the contacts on which the [party seeking the order] relies to establish stalking involves communication." Rangel, 328 Or. at 300, 977 P.2d 379; accord Delgado v. Souders, 146 Or.App. 580, 586, 934 P.2d 1132,

rev. allowed 326 Or. 43, 943 P.2d 633 (1997). Contacts that do not involve expression only need to satisfy the less stringent statutory standard. Delgado, 146 Or.App. at 586,

934 P.2d 1132.

The record in this case contains numerous contacts that could potentially give rise to a stalking protective order. Some of those contacts involve expression. Others do not. We need not decide whether the expressive contacts rise to the level that Rangel requires in order to affirm the trial court's decision. At least three of the nonexpressive contacts suffice. First, respondent assaulted their son in May 1997. ORS 30.866(1)(a) permits a stalking protective order to be based on an alarming contact with a member of the petitioner's immediate family. Respondent's assault clearly caused petitioner to have a "reasonable apprehension regarding the personal safety of * * * a member of [her] immediate family," ORS 30.866(1)(c), and there can be little dispute that petitioner's alarm was objectively reasonable, ORS 30.866(1)(b).⁸

Because the second and third contacts raise related issues, we discuss them together. Petitioner saw respondent drive by her home "multiple times per day" before the temporary stalking protective order was issued. Additionally, petitioner's neighbors saw respondent parked outside of her home watching it with binoculars. The term "`contact' includes but is not limited to * * * [c]oming into the visual * * * presence of the other person." ORS 163.730(3)(a). Respondent clearly came within petitioner's visual presence when she saw him drive by her home. See State v. Maxwell, 165 Or.App. 467, 474, 998 P.2d 680 (2000)

(defining the phrase "visual presence" as capable of being seen). Respondent did not, however, come within petitioner's visual presence when he was watching her home with binoculars; the record does not establish that respondent was capable of being seen from petitioner's house. See id.⁹ The other potentially applicable definition of contact is "[w]aiting outside the home * * * of the person." ORS 163.730(3)(c). The legislature's use of the gerund "waiting," however, implies a durational requirement, and there is no evidence in this record of how long respondent had been parked outside petitioner's home.

Even if watching petitioner through binoculars does not come within the express terms of ORS 163.730(3)(a) and (c), that is not the end of the inquiry. ORS 163.730(3) provides that the term "`contact' includes but is not limited to" a list of defined acts. See n 6 above. The fact that watching someone with binoculars is not one of the listed acts does not necessarily preclude a court from relying on it as a basis for issuing a stalking protective order. In determining whether respondent's act qualifies as a contact, we look initially to the...