H. L. P. v. Jones

• Decision Date: 03 February 2021
• Docket Number: A172564
• Citation: 309 Or.App. 108,481 P.3d 415
• Parties: H. L. P., Petitioner-Respondent, v. Jacob Eugene Russell JONES, Respondent-Appellant.
• Court: Oregon Court of Appeals

309 Or.App. 108

481 P.3d 415

H. L. P., Petitioner-Respondent,

v.Jacob Eugene Russell JONES, Respondent-Appellant.

A172564

Court of Appeals of Oregon.

Submitted August 7, 2020.

February 3, 2021

Adam L. Dean and Dean Law Group, P.C., filed the briefs for appellant.

Hannah Proffitt filed the brief pro se.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

MOONEY, J.

Several months after ending their romantic relationship, petitioner obtained a permanent stalking protective order (SPO) against respondent. Respondent appeals from the judgment entering the SPO, challenging the sufficiency of the evidence. We conclude that the trial court erred in granting the permanent SPO because the evidence was not sufficient to support it. We reverse the judgment.

Respondent does not request de novo review, and it is not warranted. See ORS 19.415(3)(b) ; ORAP 5.40(8)(c). We review the trial court's factual findings for any supporting evidence and its legal conclusions for legal error. Miller v. Hoefer , 269 Or. App. 218, 219, 344 P.3d 121 (2015). Given respondent's challenge to the sufficiency of the evidence, "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) (internal quotation marks omitted). We presume that the court resolved any disputed facts consistently with the outcome that it reached. Elliott v. Strope , 307 Or. App. 156, 157, 476 P.3d 972 (2020). We draw the relevant facts from the testimony in the record, and we state those facts in accordance with the standard just described.

Petitioner and respondent dated for approximately 18 months—from th418e time they were seniors in high school until the end of their freshman year of college at Oregon State University (OSU). Respondent had difficulty accepting the breakup and, after petitioner told him that the relationship was over, attempted to get her to reconsider. In the 24 hours immediately post-breakup, he called her 103 times. Petitioner did not answer those calls, and she sent "at least one text message that said, ‘Do not call me’ or ‘Stop calling me.’ ’’ During the next two weeks, respondent continued to call petitioner and also to send her numerous text messages. Respondent did not threaten petitioner. At one point, petitioner saw respondent walking in her direction as she was leaving one class and heading to another. At that point, she "pushed" him, "physically mov[ing] [respondent] out of the way" and told him "[p]lease don't talk to me; I'm going to class." We refer collectively to those events as the "post-breakup phone/text message incidents."

Respondent contacted petitioner on June 14 while she was housesitting for a friend in Lake Oswego (housesitting incident). She noticed a car enter the driveway at 1:50 a.m. and saw that it was respondent when he approached the glass front door. She opened the door and spoke briefly with respondent before asking him to leave. Respondent protested and showed her new cuts on his arm. She believed that the cuts were self-inflicted and that they had been made within the previous 48 hours. Petitioner told respondent that she would call the police if he did not leave, at which point he left. Petitioner would have been alarmed by anyone showing up at that hour, but it was especially "alarming" when respondent appeared there. Petitioner had previously told respondent that she would be housesitting at that location, but she was not sure whether she had told him that she would be there overnight.

Petitioner and respondent were each taking summer classes at Portland Community College (PCC). Petitioner had rearranged her class schedule to avoid contact with respondent. On August 1, after parking her car and while walking toward her class, petitioner noticed that respondent was parked in the same parking lot and that he was following her (PCC parking lot incident). She was aware that respondent had a midmorning chemistry class that day, but she became concerned that he was moving toward her in the parking lot. Petitioner ran to her class and did not see respondent again that day.

On August 5, petitioner saw respondent outside of her place of employment. She called respondent's parents to report seeing him, and they told her that he had only been there to buy a bottle of water at a nearby convenience store (place of employment incident). On August 10, respondent's mother contacted petitioner to arrange for the return of certain gifts respondent had given her (gift return incident). Petitioner agreed to meet with respondent's mother and return certain gifts.

Finally, on August 18, someone spray painted the word "pedophile" on the garage door of a friend of petitioner¹ and she believed that it was respondent who had done so (vandalism incident). There was a sideways "smiley face" next to that word and the inclusion of that symbol suggested to petitioner that respondent had done the spray painting. They had a "sort of inside joke[ ]" about "smiley faces." Soon after that incident, respondent sent a text message to petitioner's mother claiming that petitioner was "having sexual relations with a 63-year-old man" and that she had been drinking and driving (text to petitioner's mother incident). Petitioner denied being in an intimate relationship with her friend, denied drinking and driving, and was unable to explain how respondent would have known where her friend lived.

Petitioner was alarmed by respondent's contacts because she knew that he had "physically hurt people" in the past, referring to an incident in high school in which he "beat a kid to a pulp." In spring 2019, respondent told her to "shut up" or else he would pour a "very hot" cup of coffee on her. Although petitioner did not include it as an unwanted contact in her petition, she did describe that, during their breakup conversation, respondent "physically restrain[ed]" her by grabbing her arms and holding them against her sides. Also, respondent had previously "stalked" her, walking around campus trying to find her. Respondent had engaged in self-harm that he said he inflicted because of her. Respondent had access to multiple firearms at his house, including an "illegally modified assault rifle," and he had previously indicated a desire "to shoot people."

Petitioner sought and obtained a temporary SPO against respondent. She points to the six incidents just described in support of her petition, arguing that each one constituted unwanted contact that alarmed or coerced her or a member of her immediate family. The trial court held an evidentiary hearing on October 3 and, at the conclusion of the hearing, issued a permanent SPO against respondent.

In issuing that order, the trial court used a form that contained preprinted findings that tracked the required statutory elements, which the court adopted and, in addition, the court made the following findings from the bench:

"The parties were in a relationship. The relationship ended in early June. The Respondent was extremely distraught, sending over a hundred text messages and showing up at Petitioner's door in the middle of the night to display cut marks on his arms, and plead with the Petitioner to continue the relationship. He left only after Petitioner threatened to call the police.

"Thereafter, the Respondent made several attempts to contact Petitioner, as she testified, instilling in her a reasonable fear that he was stalking her.

"Then, on August 18th, 2019 he spray—spray painted ‘Pedophile’ on the garage of Mr. Haggart, a mechanic who was helping Petitioner with her car.

"Petitioner filed for a stalking protective order on August 21st. Respondent responded on August 23rd with a text to Petitioner's mother that accused her of prostituting with the mechanic and making other accusations that were equally disturbing and false.

"Petitioner is a credible witness. Respondent is not a credible witness."

Although the trial court did not specifically designate which contacts it was relying on, it referred to the vandalism incident, the text to petitioner's mother, and the housesitting incident when it made its oral findings and concluded that respondent "intentionally, knowingly, and recklessly engaged in repeated unwanted contact with" petitioner, and that it was reasonable for petitioner to be alarmed by that contact.

Respondent now appeals the judgment, assigning error to the trial court's decision to issue the permanent SPO. He argues that the "contacts" do not qualify under ORS 30.866 to support issuance of a permanent SPO because (1) the expressive contacts were not threatening, (2) the nonexpressive contacts would not reasonably generate apprehension for petitioner's personal safety, and (3) petitioner initiated some of the contacts, leaving respondent without reasonable notice as to what type of contact was unwanted.

To obtain an SPO under Oregon's civil stalking statute,² a petitioner must establish the following elements by a preponderance of the evidence:

"(1) that the respondent engaged in ‘repeated and unwanted contact’ with the petitioner;

"(2) that the petitioner was subjectively alarmed or coerced by the contact and that such alarm or coercion was objectively reasonable;

"(3) that the petitioner subjectively experienced apprehension about personal safety as a result of the contact and that such apprehension was objectively reasonable; and

"(4) that the respondent acted with the requisite mental state."

Retherford v. Wafula , 305 Or. App. 344, 352, 471 P.3d 786 (2020).

"Contact" is defined in ORS 163.730(3) and, as relevant here, includes "[c]oming into the visual or physical presence of the other person," "[f]ollowing the other person," or "[w]aiting outside the home, property, place of work or school of the other person or of a member of that person's family or household."...