Delgado v. Souders

Citation334 Or. 122,46 P.3d 729
PartiesJoy DELGADO, Respondent on Review, and State of Oregon, Respondent on Review, v. Robert Hunter SOUDERS, Petitioner on Review.
Decision Date16 May 2002
CourtSupreme Court of Oregon

Chris W. Dunfield, Corvallis, argued the cause and filed the brief and additional authorities for petitioner on review.

Richard L. Wehmeyer, Corvallis, argued the cause for respondent on review Delgado.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent on review State of Oregon. With him on the briefs and additional authorities were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.2


This case involves ORS 30.866, set out post, the civil anti-stalking statute. The trial court entered a stalking protective order (SPO) under that statute, prohibiting defendant from knowingly following plaintiff, knowingly being in plaintiff's presence or within 100 feet of her residence, and from entering certain property. Defendant appealed, raising various constitutional challenges to ORS 30.866 and further arguing that there was not sufficient evidence to support entry of the SPO in his case. The Court of Appeals affirmed. Delgado v. Souders, 146 Or.App. 580, 934 P.2d 1132 (1997). We affirm the Court of Appeals' decision and the trial court's order.


The facts are as follows. In 1995, plaintiff was a student at Oregon State University (OSU) in Corvallis, working toward a doctoral degree in education administration. In the summer of 1995, plaintiff lived in an apartment about four blocks from the OSU campus and seven blocks from her office at the School of Education building, and she regularly walked to and from campus. During that summer, plaintiff noticed defendant several times a week, sometimes more than twice a day, either walking around plaintiff's apartment building or walking nearby as plaintiff walked to and from campus. She also noticed defendant a number of times in the OSU library when she was studying there. Initially, defendant's presence caused plaintiff no alarm or concern, although she began to notice defendant with increasing frequency and, on one occasion, noticed that defendant appeared to be looking in her direction.

One morning in late September 1995, when plaintiff was walking to campus, she heard leaves crunching behind her, turned, and saw defendant right behind her. Defendant passed by plaintiff within one or two feet and, in the course of passing by, crossed the street diagonally away from her. Plaintiff was startled and thought it strange that defendant had not said anything when he passed by her so suddenly, particularly because the area otherwise was deserted.

After that encounter, between September and November 1995, plaintiff noticed defendant on at least three occasions seated at tables near her study carrel in the basement of the OSU library. She ultimately stopped going to her study carrel, because defendant's presence made her uncomfortable. During the same time frame, plaintiff also noticed on a few occasions that defendant would appear on different floors of the library when she was working on those floors. On one or two of those occasions, she and defendant made "very, very brief" eye contact. By mid-November, plaintiff began to feel as if defendant were stalking her and became concerned for her personal safety.

In late November 1995, plaintiff was unloading her vehicle in the afternoon after returning home from a Thanksgiving trip. At that time, the street was quiet and deserted. When plaintiff locked and closed her vehicle door and turned around, she saw defendant about two or three feet away from her; he walked past her and, in the course of passing by, crossed the street diagonally away from her. Plaintiff began to feel more uncomfortable about defendant's conduct and became afraid and concerned for her personal safety. Consequently, she began documenting her encounters with defendant. One of plaintiff's concerns was the manner in which defendant "silently and swiftly" walked up behind her, without announcing—or without her otherwise noticing—his presence. Plaintiff also was concerned by the physically close nature of defendant's appearances, at times when no other people were nearby and when defendant was walking in a large, unobstructed area.

On December 1, 1995, during the late afternoon, plaintiff noticed defendant, from a distance, walking toward the School of Education building. At one point, defendant walked on the same side of the street as plaintiff; however, he turned and walked up a pathway near the building, and did not come into contact with plaintiff or otherwise give any indication that he was aware of her presence. Plaintiff again became concerned and afraid as a result of seeing defendant so frequently, particularly because, to plaintiff's knowledge, defendant neither worked nor attended classes at the School of Education building. Shortly after noon the next day, plaintiff was walking between the School of Education building and the OSU computer center, at a time when the campus seemed deserted, when she sensed something behind her. Although she did not hear anything, she started to turn, and defendant was "right there," about one foot away. As plaintiff described it, defendant again had come up behind her swiftly, without any sound, and then passed by her. When defendant was about three feet ahead of plaintiff, plaintiff said "what the hell" to him, but he did not respond and kept walking forward. Later that day, plaintiff called the police, and, on December 7, 1995, plaintiff filed a civil stalking complaint3 against defendant under ORS 30.866(1).

Later on December 7, 1995, an Oregon State Police (OSP) officer located defendant, handcuffed him, and transported him to the Public Safety Building on the OSU campus. An OSU public safety officer then issued defendant a notice, which is not at issue in this proceeding, declaring that he no longer was permitted on the OSU campus. On December 12, 1995, a trial court held an initial hearing on plaintiff's complaint and, after considering plaintiff's allegations, entered a temporary SPO against defendant under ORS 30.866(2). Soon thereafter, defendant moved to dismiss the complaint upon various constitutional grounds; the trial court denied that motion.

In February 1996, the trial court held an evidentiary hearing, pursuant to ORS 30.866(3)(a). Plaintiff testified about the encounters described above, adding that, throughout those encounters, defendant had not spoken to her, although he had made "side glances" in her direction when crossing the street and, on one or two occasions at the library, had made "very, very brief" eye contact. Plaintiff also presented evidence that she had suffered depression, anxiety, and "psychosocial stress" related to those encounters. Finally, plaintiff presented evidence that, in 1993, another female OSU student had obtained an SPO against defendant.

At the close of plaintiff's evidence, defendant moved to dismiss, based upon insufficient evidence. The trial court denied that motion, and defendant then presented his case. For his part, defendant testified that, like plaintiff, he lived within walking distance of the OSU campus and frequently used the OSU library as a resource for his work. Defendant noted that he used materials on different floors of the library and that he often read the newspapers in the basement.

Defendant further testified that he walked everywhere, that he would pass the School of Education building when walking from his apartment to the OSU library, and that he would pass plaintiff's apartment building when walking from his apartment to downtown Corvallis. Defendant testified that it was not unusual for him to walk by plaintiff's apartment building between four to eight times in one day. Defendant also described his manner of walking as "fairly fast" and stated that he regularly overtook other pedestrians on the sidewalk, giving no warning of his approach. Defendant further testified that he never remembered seeing plaintiff during the time period in question and that he did not know that plaintiff had complained about his conduct until he was transported to the Public Safety Building. Finally, other witnesses testified, in defendant's behalf, that defendant was a peaceful and truthful person, and that he walked quickly and "with a purpose," using long strides.

At the close of all the evidence, defendant renewed his pretrial motion to dismiss plaintiff's complaint, based upon various constitutional grounds. The trial court adhered to its earlier ruling and also concluded that plaintiff had established all the elements required to obtain an SPO under ORS 30.866(3)(a). The court then entered an order that prohibited defendant from knowingly following plaintiff or knowingly being in her presence; telephoning plaintiff; knowingly being in plaintiff's presence in the OSU library; knowingly being within 100 feet of plaintiff's residence; and entering the School of Education building or the OSU computer center. As noted, defendant appealed. On appeal, the state intervened as a party. The Court of Appeals affirmed the trial court's order. Delgado, 146 Or.App. 580,934 P.2d 1132. We allowed defendant's petition for review, which challenges ORS 30.866 upon various constitutional grounds and also raises issues related to the sufficiency of the evidence.


We first address defendant's evidentiary challenge. See State v. Montez, 324 Or. 343, 346, 927 P.2d 64 (1996)

(addressing subconstitutional issues before constitutional issues). As explained below, we conclude that plaintiff presented sufficient evidence to establish all the elements required to obtain an SPO under ORS 30.866(3)(a)....

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