Delgado v. Souders
| Decision Date | 05 March 1997 |
| Citation | 934 P.2d 1132,146 Or.App. 580 |
| Parties | Joy DELGADO, Respondent, and State of Oregon, Intervenor, v. Robert Hunter SOUDERS, Appellant. 95-10330; CA A92188. |
| Court | Oregon Court of Appeals |
Chris W. Dunfield argued the cause and filed the briefs for appellant.
Richard L. Wehmeyer argued the cause and filed the brief for respondent.
Robert M. Atkinson, Assistant Attorney General, argued the cause for intervenor. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.
Robert Souders appeals from the judgment in this civil action under ORS 30.866, in which petitioner Joy Delgado sought and the court issued a stalking protective order against Souders. We affirm.
Delgado and Souders lived approximately one block away from one another in the City of Corvallis. The conduct of which Delgado complained ranged from Souders' repeated appearances in front of the building where Delgado resided and on public sidewalks where Delgado was also walking, to encounters of a notably closer kind. Among the latter were episodes in which Souders crossed a street at a sharp angle and passed within two or three feet of Delgado while she was getting out of her automobile; and various encounters on the Oregon State University campus, a number of which occurred in secluded areas of the campus, including one in which Souders suddenly appeared on a pathway at night approximately one foot away from Delgado. Delgado testified that Souders would appear next to her suddenly and quietly; she characterized his behavior as "sneaking up behind me without any sound and so swiftly." There were also a number of instances in which Souders placed himself in proximity to Delgado's study carrel in the university library, in a manner requiring her to pass him in order to reach her destination; and at least one episode in which Souders showed up on different floors of the library as Delgado moved from one to the other because of her anxiety over his presence. There was evidence that a similar pattern of encounters between Souders and another woman had occurred, including following her from floor to floor at the library. There was no evidence that Delgado and Souders ever exchanged words. 1 As a result of the events, Delgado suffered severe anxiety and related emotional and physical trauma. She changed her place of residence and telephone and underwent professional psychological treatment.
ORS 30.866(1) provides:
ORS 163.730, the definitional provision for the stalking statutes, provides, as relevant:
Souders makes two assignments of error. He contends in one that his "conduct was so trivial that it does not entitle [Delgado] to a court's stalking protective order." The trial court found that the encounters were, at least in part, not "accidental" and constituted "knowingly unwanted contacts." The court concluded further that it was objectively reasonable for Delgado to be apprehensive about her personal safety. Souders acknowledges that we are bound by the trial court's findings, if there was evidence to support them. He argues, nevertheless, that the nature of the contacts could not be "such as to cause a reasonable apprehension of a danger to one's personal safety." To the extent that Souders' argument posits that his conduct was nonculpable or innocuous and was of a kind that Delgado should have been prepared to accept as merely having to share public sidewalks with people "that one does not particularly like," the trial court's findings are to the contrary and clearly are supported by the evidence.
However, as we understand his argument, Souders also maintains that the encounters were not sufficiently aggravated to warrant a reasonable apprehension concerning personal safety on Delgado's part. In that connection, Souders contends that the stalking law is aimed at menacing situations involving "ex-husbands" and "jilted boyfriends," rather than at the ostensibly different kind of circumstance involved here, where no overtly threatening acts or communications occurred.
Although Souders does not characterize his argument as such, its implicit thesis is that the legislation should not reach conduct of the kind in which he understands himself to have engaged. However, subject to constitutional limitations, see State v. Rangel, 146 Or.App. 571, 934 P.2d 1128 (1997), it is the function of this and other courts to discern what the legislature has said. There is simply no question that the statute contemplates that alarm and the other evils at which it is directed can result from exactly the kinds of contacts that occurred here. ORS 163.730(3) defines "contact" to include, inter alia, following another person, coming into another person's physical or visual presence and waiting outside certain places that the other person frequents. We reject Souders' assignment.
In his other assignment, Souders contends that the stalking statute is unconstitutional on several grounds. However, some of his constitutional arguments turn on one or both of two underlying contentions or assumptions. First, he asserts that, although denominated a "civil" proceeding, an action under ORS 30.866 is "criminal in nature" under the rationale of Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977). We held otherwise in Johnson v. McGrew, 137 Or.App. 55, 902 P.2d 1209, rev den 322 Or. 361, 907 P.2d 248 (1995). Souders suggests that Johnson was wrongly decided. We disagree.
Secondly, Souders argues that the speech provisions of the state and federal constitutions, Article I, section 8, and the First Amendment, preclude a finding that he violated the stalking statute. He contends that the statute cannot be invoked against him "without [evidence of a] genuine and imminent threat of violence which is necessary to remove the accused's actions from constitutional [speech] protection." We held in Rangel that ORS 163.732, the criminal analog of ORS 30.866, could survive under the constitutional speech provisions only if construed in such a manner that the actor's expression giving rise to the victim's apprehension for safety must be accompanied by the intent and ability to commit the threatened harm. That conclusion may be equally applicable to the civil stalking statute, but it is unnecessary to decide that question here.
Unlike Rangel, no speech or other constitutionally protected expression is involved in this case, nor does the statute make expression the only kind of conduct that can constitute stalking. ORS 163.730(1)(c) defines eleven different methods of "contact" that can constitute the threshold element of stalking. Of those, five necessarily involve communication, three can be committed with or without communication, and three--the contacts enumerated in ORS 163.730(3)(a)-(c)--would normally entail only physical noncommunicative conduct, as they did here. Those last three forms of contact are the only ones in which Souders arguably engaged. The statute is...
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