C. Q. R. v. Wafula

• Decision Date: 08 July 2020
• Docket Number: A161470
• Parties: C. Q. R., Petitioner-Respondent, v. Phillip Wekesa WAFULA, Respondent-Appellant.
• Court: Oregon Court of Appeals

305 Or.App. 344

471 P.3d 786

C. Q. R., Petitioner-Respondent,

v.Phillip Wekesa WAFULA, Respondent-Appellant.

A161470

Court of Appeals of Oregon.

Argued and submitted May 9, 2019.

July 8, 2020

Kenneth E. Kahn II argued the cause and filed the briefs for appellant.

Ivan Resendiz Gutierrez, Portland, argued the cause for respondent. On the brief were Cody J. Elliott, Sanja Muranovic, and Miller Nash Graham & Dunn LLP.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.^*

AOYAGI, J.

Petitioner obtained a permanent stalking protective order (SPO) after respondent initiated a series of contacts with her over several months. Respondent appeals the SPO judgment, challenging the sufficiency of the evidence, and a supplemental judgment for attorney fees. For the following reasons, we conclude that the trial court did not err in entering an SPO and therefore affirm the SPO judgment. We also affirm, without discussion, the supplemental judgment for attorney fees.

FACTS

Respondent requests de novo review, but we are unpersuaded that this is an "exceptional case" warranting such review. See ORAP 5.40(8)(c) (making de novo review discretionary and providing for it "only in exceptional cases"). We therefore deny that request and instead "review the facts for any evidence and the legal conclusions based on those facts for legal error." Miller v. Hoefer , 269 Or. App. 218, 219, 344 P.3d 121 (2015). Absent express findings, we presume that the trial court implicitly found disputed facts consistent with the outcome. Id. "When the sufficiency of the evidence supporting an SPO is challenged on appeal, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record is legally sufficient to permit that outcome." King v. W. T. F. , 276 Or. App. 533, 537, 369 P.3d 1181 (2016).

We state the facts accordingly. Except as otherwise noted, the facts generally come from petitioner's testimony.

Petitioner is a student at Portland State University (PSU), who, as a graduate student, began taking classes at a building in downtown Portland. Petitioner first encountered respondent, a stranger to her, in early June 2015 at a coffee shop on the PSU campus. Respondent turned as petitioner passed him on the street and followed her into the coffee shop. He entered as she was placing her order and approached her directly. Respondent "introduced himself as Philip and said that he had just seen [her] get off the MAX and felt like he needed to * * * approach [her] and talk to [her]." Petitioner said that it was nice to meet him and asked, because he had an accent, whether he was "from here." Respondent responded that he was from Africa. When petitioner said that she was from Sierra Leone, respondent told her that he was from Sierra Leone too (although he later testified that he is from Kenya). Respondent asked petitioner for her phone number and invited her on a date. Petitioner "told him no," that she "was not interested" and "was in a relationship," and left the coffee shop.

A little over a month later, in mid-July, petitioner was sitting in a bagel shop near the PSU campus, waiting for her order, when she saw respondent "kind of rush in and look around." (Unbeknownst to petitioner at the time, respondent worked in the same building where she had her PSU classes.) Respondent went straight up to petitioner and asked if she remembered him seeing her. Petitioner said she remembered him from the coffee shop. Respondent replied that "no, about a week ago [he] saw [her] at a nightclub." Respondent then described having seen petitioner at Church Bar, what she had been wearing, who she had been with, what dance steps she had done, and how many drinks she had had. Petitioner felt "very apprehensive that [respondent] was approaching [her] in this way." Petitioner asked him why he had not spoken to her at the nightclub. Taking a step toward her, respondent said, "like it was a joke," that it was "because he didn't want to seem creepy." Respondent then smiled and "put his hand on" or "grabbed" petitioner's upper thigh. Petitioner immediately stood, stepped back, and got her order and left.

Petitioner felt "very uncomfortable," "alarmed," and "extremely apprehensive" about the bagel-shop incident. She did not respond "aggressive[ly]" because she did not know respondent or his "triggers," but she believed that her body language made clear to him her discomfort. Petitioner called her mother about what had happened, and her mother told her to get respondent's name and number for "security" if she saw him again, so that petitioner's uncle and stepfather could tell respondent to leave her alone. According to petitioner's mother, petitioner was fearful about the situation and, in both the Sierra Leone community and "African American culture," "that's what men do"; "the women don't take care of things like that."

Petitioner began having friends walk her to classes and to her car. She "constantly" saw respondent around the PSU campus, but their only actual interactions were those initiated by respondent. The next of those was in late August, about six weeks after the bagel-shop incident. Petitioner was at a nightclub in downtown Portland, which was hosting a private event attended by a famous football player. The private event was upstairs, with restricted access, and petitioner was there. Around 12:30 a.m., petitioner went outside the club to meet a friend. Outside, she saw respondent, who made eye contact and waved, trying to get her attention. Petitioner immediately turned away and went back inside and upstairs. She later saw respondent try to come upstairs, but he was turned away and remained downstairs in the unrestricted area; respondent testified that he had wanted to see the famous football player.

Around 2:30 a.m., petitioner left the club and walked to a friend's house. On her way, while petitioner and a friend were crossing a street, respondent pulled up in a white Mercedes and blocked their existing path of travel, although they could have walked around the car. Respondent rolled down his window, and, as petitioner's friend approached, respondent said that he was there for petitioner, not her, pointing at petitioner. According to respondent, he was on his typical route home from downtown when he saw petitioner and took it as "a sign"; he wanted to see if she would "respond to the car," because his car looks good and can "play an important role" in dating. Remembering her mother's instructions, petitioner "immediately asked [respondent] for his name and number," and respondent provided it. Petitioner asked respondent how he had found her, and he said that it was a coincidence. Respondent "was kind of doing that smile thing and it just made [her] feel * * * very unsafe because it was only [her] and [her] friend." Petitioner asked respondent why he was there and said that it was weird that he was there. She then left with her friend, who described petitioner as "afraid" and "worried."

At that point, petitioner was concerned for her personal safety, because respondent "had already approached [her] several times after [she] told him [she] was uninterested on the initial encounter, because he had touched [her] in such an intimate place [her upper thigh] and made [her] feel unsafe for [her] personal space, and because [she] had already seen him walking past in the club earlier that night." Petitioner also had not seen respondent leave the club and did not expect to see him on the street.

After the August encounter, petitioner gave respondent's name and phone number to her uncle and stepfather, who called respondent, but respondent did not understand who they were talking about.

At some point in the weeks after the August encounter, respondent saw petitioner in the building where he works (and where petitioner takes classes). Petitioner turned and walked away from respondent "like she was frightened." Only respondent testified to that specific incident—and his perception that petitioner looked frightened—but petitioner testified more generally that she saw respondent "constantly" in the building.

In mid-September, petitioner and respondent had their next direct encounter. Petitioner had just left the building where she takes classes (and where respondent works) and was walking "shoulder to shoulder" with a companion. A person walking toward them "pushed through between [them]" and "grabbed [petitioner] around [her] waist." Petitioner realized that it was respondent, stopped walking, and "was very apprehensive and also very confused as to what was going on and trying to process everything." Respondent said something to petitioner and then kept walking. According to respondent, rudely walking past or between someone is a "practical joke that [he] do[es] with a lot of people." Usually people think it is rude but then laugh when they realize who it is, but petitioner stopped walking and "just kind of paused," which was a different reaction that made respondent think "whoa."

After the September incident, petitioner asked her uncle and stepfather to call respondent again to ask him to leave her alone, because, "that was the second time that he had touched [her when she] did not want him to." Both petitioner's uncle and respondent testified about the calls. When the uncle called, respondent did not understand who he was talking about until the uncle mentioned the crosswalk encounter, at which point he realized that it was about petitioner. While respondent was on the phone with petitioner's uncle, petitioner's stepfather called. Respondent later told a coworker that people were "threaten[ing]" him and telling him they could find him from his phone number, prompting the coworker to tell respondent to call the police. According to respondent, he was angry with petitioner that she had given his phone number to her uncle and stepfather and was ...