Castro v. Heinzman

• Citation: 194 Or. App. 7,92 P.3d 758
• Parties: Victoria CASTRO, Respondent, v. Dan HEINZMAN, Appellant.
• Decision Date: 23 June 2004
• Court: Court of Appeals of Oregon

92 P.3d 758

194 Or. App. 7

Victoria CASTRO, Respondent, v. Dan HEINZMAN, Appellant.

CCV 0303234; A121443.

Court of Appeals of Oregon.

Submitted on Record and Brief May 12, 2004.

Decided June 23, 2004.

Jeffrey L. Olson, Tigard, filed the brief for appellant.

No appearance for respondent.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge,¹ and BREWER, Judges.

BREWER, J.

The trial court granted petitioner a permanent stalking protective order (SPO) against respondent. See ORS 30.866. Respondent appeals, and the issue is whether the evidence supported issuance of the SPO. We review the facts de novo, Hanzo v. deParrie, 152 Or.App. 525, 537, 953 P.2d 1130 (1998), rev. den., 328 Or. 418, 987 P.2d 512 (1999), giving deference to the trial court's express and implicit credibility determinations.² We affirm.

Petitioner and respondent met in July 2002, while both were employed by the Oregon Youth Authority at the MacLaren Youth Correctional Facility. Respondent's duties initially justified his having work-related telephonic or in-person contact with petitioner. In August 2002, respondent asked petitioner whether she worked out at a fitness facility and, in an ensuing conversation, petitioner told respondent that she exercised at a gym in Wilsonville. Respondent joined that gym and, over the next few months, the parties became friends. They developed an intimate relationship during the fall of 2002.

In November 2002, petitioner began to lose romantic interest in respondent because of his "manipulative" personality, his excessive consumption of alcohol, and statements that he made to her concerning sexual matters and domestic violence in one of his previous marriages. In late December 2002, the relationship came to an end when respondent insistently complained that petitioner had failed to call him at a certain time and, a few days later, sent her an unwanted Christmas gift at work with a "poor me" letter. Petitioner returned the gift. On December 24, when respondent called to question the return of the gift, petitioner told him that "it was nothing more than a friendship between them." On December 26, respondent called petitioner again. Petitioner told respondent that their "connection was over" and that she "did not want to ever see him again [or] hear from him." On December 27, respondent, while intoxicated, left a message on petitioner's answering machine, urging her to continue their relationship. In addition, respondent sent petitioner e-mails to the same effect. Respondent also sent petitioner copies of e-mails that he had sent to his cousin, in which respondent discussed intimate details of his relationship with petitioner and expressed consternation over the termination of their relationship.

In early January, another employee at MacLaren—a friend of petitioner—told petitioner that she had heard a rumor that respondent was claiming to know intimate things about the friend. The friend complained about the rumor to respondent's supervisor. When confronted by his supervisor, respondent stated that petitioner had broken off the parties' relationship and that petitioner must have been the source of the rumor. The supervisor then contacted petitioner. On January 12, 2003, petitioner provided the supervisor with a written statement that detailed her concerns about respondent's manipulative and obsessive behavior. Petitioner asked the supervisor to obtain a signed statement from respondent assuring her that he would leave her alone and "not spread false rumors" about her. According to petitioner, respondent's supervisor told him not to contact her at work or on his personal time. Petitioner was so concerned about respondent's behavior that she moved to a new residence.

On an occasion in mid-January, respondent came to petitioner's work area several times during the same shift. According to a witness, respondent "was talking to her about a work issue that * * * anyone else would handle over the phone. And he just kept coming back and talking to [petitioner]." On a second occasion in January, respondent came to petitioner's work area when she was alone. On that occasion, "he did not leave until [petitioner] reached for the phone and * * * made it clear that he needed to leave." In addition, on February 27, respondent came to petitioner's work area to deliver medications as part of his job duties.³

Both parties continued to work out at the same gym in January and February 2003. Petitioner used the gym with caution. If respondent's vehicle was parked there, she would leave and return later. In late February, however, petitioner went to an exercise room and found respondent using a machine. Petitioner then left to work out in a women-only room. As petitioner was leaving the gym, she walked past respondent, who was standing next to a drinking fountain. He then stood around, "pretended to work out," and disappeared.

After respondent saw petitioner at the gym, he sent her a flurry of e-mails from February 24 through 28, expressing dismay at the breakup of their relationship and asking her to reconsider her decision to end the relationship. Respondent also left numerous telephone messages on petitioner's answering machine. In the e-mails, respondent adopted a love-struck tone that bemoaned petitioner's desire to be free of him. In an e-mail dated February 27, respondent stated, "I can't believe that I didn't haul you off to some solitary place .... damn the realities.....and just hold you. ....for eternity........DAMN the realities." In another e-mail sent the same day, respondent likened the parties' relationship to a "batter[ing]" wild river experience. He stated, "I revel in the secrecy.......I think that one time in my arms again would destroy the demon of misunderstanding that has tried so hard to destroy the essence." The other e-mails also were replete with respondent's proclamations of love and devotion to petitioner.

Respondent supplemented the e-mail barrage with in-person contacts. After seeing petitioner at the gym, respondent approached her there on three consecutive days. On the first occasion, petitioner "didn't react or give him the time of day." On the second occasion, respondent pursued an "extensive intense `philosophical' conversation." Petitioner cut her workout short and left. On the third day, respondent asked petitioner "about reconnecting sexually." Petitioner declined. When he left the gym, respondent was standing outside in the parking lot. From that vantage point, he called her from a cell phone and further "pressed" her "on the issue." Petitioner again declined to renew the relationship. She then went home and sent respondent an e-mail reiterating her demand that he leave her alone. In a later e-mail, petitioner asked respondent to find another workout location. Respondent replied by e-mail, "I'm laughing. ....you were joking......right?"

On March 11, 2003, petitioner filed a petition for a temporary SPO against respondent. After an evidentiary hearing, the trial court made the SPO permanent and of unlimited duration.

On appeal, respondent makes three assignments of error. He argues (1) that the trial court erroneously issued the permanent SPO "based largely if not entirely on non-threatening telephone calls and e mails"; (2) that petitioner failed to establish that she actually was alarmed or coerced by respondent or that any such alarm or coercion was objectively reasonable; and (3) that the court based its decision on "personal biases."⁴

The civil stalking statute authorizes a court to issue an SPO against someone who intentionally, knowingly, or recklessly makes repeated and unwanted contact with another person, or a member of that person's immediate family or household, causing that person to be alarmed or coerced. ORS 30.866(1)(a). The contact may consist of, among other things, coming into the person's visual or physical presence, following the person, waiting outside the person's home, property, place of work or school, or sending or making written communications of any kind. See ORS 163.730(3) (providing definition of "contact" for both the civil and criminal stalking statutes); Weatherly v. Wilkie, 169 Or.App. 257, 259, 8 P.3d 251 (2000). Additionally, a person seeking the SPO must prove that he or she in fact was alarmed or coerced as a result of the repeated and unwanted contacts, and it must be objectively reasonable for that person to have been alarmed or coerced. See id. (discussing subjective and objective components). "Alarm," for purposes of the issuance of an SPO, means "to cause apprehension or fear resulting from the perception of danger." ORS 163.730(1). "Coerce" means "to restrain, compel or dominate by force or threat." ORS 163.730(2). Finally, the repeated and unwanted contacts must also cause the person reasonable apprehension regarding his or her personal safety or the safety of a member of his or her immediate family or household. ORS 30.866(1)(c).

Potential constitutional problems arise when the petitioner relies on contacts that involve expression. In that circumstance, to avoid constitutional overbreadth problems, the contacts must meet a more stringent standard than the one set out in the statute. See State v. Rangel, 328 Or. 294, 300, 977 P.2d 379 (1999); see also Hanzo, 152 Or.App. at 542,953 P.2d 1130. That more stringent standard requires the contacted person to prove that the contacts involved threats that "instill[ ] in the addressee a fear of imminent and serious personal violence from the speaker, [are] unequivocal, and [are] objectively likely to be followed by unlawful acts." Rangel, 328 Or. at 303,977 P.2d 379. Contacts that do not involve expression need to satisfy only the less stringent statutory standard. Boyd v. Essin, 170 Or.App. 509, 514, 12 P.3d 1003 (2000),rev. den., 331 Or. 674, 21 P.3d 96 (2001).

Respondent's first assignment of error, as we understand it, asserts that, in issuing the permanent SPO, the trial court...