A. A. C. v. Miller-Pomlee, A162876

• Decision Date: 03 April 2019
• Docket Number: A162876
• Citation: 440 P.3d 106,296 Or.App. 816
• Parties: A. A. C., Petitioner-Respondent, v. John Paul MILLER-POMLEE, Respondent-Appellant.
• Court: Oregon Court of Appeals

296 Or.App. 816

440 P.3d 106

A. A. C., Petitioner-Respondent,

v.John Paul MILLER-POMLEE, Respondent-Appellant.

A162876

Court of Appeals of Oregon.

Argued and submitted April 13, 2018.

April 3, 2019

Michael Vergamini, Eugene, argued the cause and filed the brief for appellant.

Adam S. Shelton and Arnold Law filed the brief for respondent.

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

TOOKEY, J.

Respondent appeals a stalking protective order (SPO) that the trial court entered against him.¹ 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 whereabouts; 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 affirm.

"We 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.

Petitioner 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 "whore." Some of respondent's abusive conduct occurred in front of L.

Additionally, 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.

In 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 fear."

Also in 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 order."

Respondent, 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.

Subsequently, as described below, respondent began to send petitioner text messages that indicated that he was monitoring petitioner's email communications and tracking her whereabouts.

In July 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 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 number.

In May 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."

Shortly 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.

Also in 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 SPO hearing what frightened her was "mostly the fact" that she did not know how respondent was aware that L had something on his cheek.

Additionally, although the date is unclear from the record, respondent sent a text message to petitioner at the "exact moment" that she was dropping L off at school, asking her to tell L to have a good day. Petitioner did not drop L off at school at the same time every day, and she did not know how respondent would know she was at L's school at that moment. Petitioner testified that respondent also sent her text messages telling her that respondent "knows where [she is] at that time" and "knows everything."

On or about May 20, 2016, petitioner logged into the Find My iPhone application on her cell phone and discovered that both her cell phone and respondent's cell phone were "logged into [petitioner's] email account," which led petitioner to believe that respondent had been tracking her whereabouts using the Find My iPhone application.² Petitioner testified during the SPO hearing that, by using her email address and password, in conjunction with the Find My iPhone application, respondent could track the location of petitioner's cellphone. During the SPO hearing, petitioner submitted into evidence a screenshot from her cell phone reflecting both petitioner's and respondent's cell phones listed in petitioner's Find My iPhone application.

On May 28, 2016, petitioner texted respondent, asking that he not contact her. That same day she went to the Eugene Police Department to report respondent's conduct. Officer Greg Calef of the Eugene Police Department then emailed respondent, informing him that petitioner had alleged that respondent had sent unwanted text messages to her and had provided evidence that would "implicate him potentially in a computer crime."

On June 16, 2016, petitioner filed a petition for an SPO, and a temporary SPO was issued by the trial court.

The hearing for a permanent SPO was held on July 14, 2016. During that hearing, respondent testified that he had accessed petitioner's personal email account. He denied, however, that he had tracked petitioner's whereabouts using the Find My iPhone application.

At the end of the hearing, the trial court concluded that the record supported the issuance of a permanent SPO. It first determined that the "November [2014 physical] contact [with petitioner] *** was unwanted contact." It noted that it believed "petitioner credible on at least being pushed, and that that was unwanted contact that caused her alarm or coercion."³

The trial court next determined that respondent's tracking of petitioner was an "unwanted contact" and that respondent's denial of that conduct was not credible. Specifically, the court determined:

"[T]aken together[, all the text messages] reveal *** that the respondent[,] who had previously been physically aggressive with the petitioner[,] was continuing to track her whereabouts, track her—her doings, all of her goings on. He was, and this is non-expressive conduct on his part. This is logging into her accounts. I find it credible. I don't find his testimony particularly credible on the issue of whether he was using [F]ind [M]y iPhone. I saw that he was, had at one point been logged onto that, and I see evidence in his own text messages that he knows where she is, and that lends credibility to the idea that he is nonverbally tracking her whereabouts, using her phone, using an app on the phone to know where she is and let her know that he knows what she's doing and where she is, and that that would

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