Habrat v. Milligan, 18-05-08866.

• Decision Date: 27 September 2006
• Docket Number: A128520.,18-05-08866.
• Citation: 145 P.3d 180,208 Or. App. 229
• Parties: Meghan Christine HABRAT, Respondent, v. Donald Ray MILLIGAN, Appellant.
• Court: Oregon Court of Appeals

145 P.3d 180

208 Or. App. 229

Meghan Christine HABRAT, Respondent, v. Donald Ray MILLIGAN, Appellant.

18-05-08866.

A128520.

Court of Appeals of Oregon.

Argued and Submitted March 10, 2006.

Decided September 27, 2006.

Jeffrey E. Potter argued the cause for appellant. With him on the briefs was Gardner, Honsowetz, Potter, Budge & Ford.

James C. Jagger, Eugene, argued the cause for respondent. With him on the brief was James C. Jagger, P.C.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge,^* and LINDER, Judge.

LINDER, J.

The trial court granted petitioner a permanent stalking protective order (SPO) against respondent.¹ Respondent appeals, challenging, among other issues, the adequacy of the evidence to support the issuance of the SPO. We affirm.

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). We defer to the trial court's implicit and explicit credibility determinations, which favored petitioner. Therefore, we rely primarily on petitioner's testimony in relating the facts, but we note some of the conflicting testimony that respondent gave, because those contradictions further inform our view of the evidence.

Petitioner is a hair stylist at a salon in a small shopping center. Respondent is a mail carrier for the United States Postal Service. Respondent and petitioner met because respondent's assigned mail route included delivering mail to the salon where petitioner works. About a year and a half before petitioner sought the SPO, respondent went to the receptionist at the salon and asked for an appointment for petitioner to cut his hair. Petitioner cut respondent's hair on that occasion and a few more times—perhaps four—after that.

As petitioner cuts a client's hair, she usually engages in general "chit-chat" or other small talk with the client. Mostly, petitioner talks about her husband and two children. When petitioner began cutting respondent's hair, respondent initially discussed his work, his sons, and his previous jobs. But he soon became sexually solicitous in a way that made petitioner very uncomfortable. In particular, even though he knew that petitioner was married and had children, respondent asked petitioner to go out with him. When petitioner turned him down and asked if he was kidding, he told her it was "worth a shot" to see if she would accept. Respondent persisted in his overtures in other ways. For example, respondent commented on petitioner's looks, telling her how pretty she was, asking her if she had been a model, and making similar observations about her appearance. He was even directive about how he wanted petitioner to look, saying such things as "I want you to wear that short little skirt I like so much."

Petitioner also learned that respondent may have fabricated stories about petitioner to his girlfriend. At some point after petitioner began cutting respondent's hair, his girlfriend called petitioner. The girlfriend accused petitioner of having an affair with respondent. Petitioner denied it, and she and the girlfriend talked. When the conversation ended, the girlfriend urged petitioner not to tell respondent that she had called, because the girlfriend feared that respondent would hurt her.

Respondent did other things that caused petitioner to be uncomfortable and concerned about the attention that respondent directed toward her. In particular, after he had delivered the salon's mail and had left to continue his mail route, respondent began returning and parking his truck in front of the salon for extended periods of time. Sometimes he would remain there until the end of his shift at 5:00 p.m. Respondent told petitioner that, when he finished his route, he had "nothing better to do." To petitioner, it seemed that respondent was sometimes parking in front of the salon for hours at a time. He usually parked either in a place designed for disabled parking only or in another space directly in front of the salon. Sometimes, he parked within a car's distance of petitioner's vehicle or in a gravel area next to the paved parking and in view from the salon. Sometimes, respondent backed into the parking spot and watched petitioner through his rearview mirror. To petitioner, the ways in which respondent parked and positioned his mail truck seemed to be an effort to antagonize her by indicating, "[L]ook, I'm here. Here I am."

Respondent's sexual overtures and behavior made petitioner wary, uncomfortable, and concerned. She was not alone—her coworkers became concerned for her as well. They began to warn petitioner to be careful. Petitioner's discomfort increased. She worked evenings and began to feel so wary about going out to her car alone that she either had someone walk her to her car or watch her while she walked alone.

Finally, one of petitioner's coworkers took matters into her own hands after respondent approached petitioner with a coupon for a free cup of coffee and presented it to her as a "Valentine's Day" gift. Petitioner and her coworkers considered the gift totally inappropriate. The coworker, out of concern and a desire to protect petitioner, complained about respondent to the local post office.

After the complaint, respondent's behavior changed. He stopped coming in for haircuts and stopped having direct contact with petitioner. Respondent continued to deliver the mail to the salon but said nothing to petitioner when he did so. Instead, he "would glare" at her in a way that she described as "very menacingly." Although respondent continued to park his mail truck in front of the salon, he no longer did so for long or extended periods of time. His longest stays lasted about 45 minutes. Still, the fact that respondent continued to return to park in front of the salon continued to concern petitioner, enough so that family members (her parents) advised the post office about it. The post office, in turn, asked petitioner to keep a log of the dates, time, and durations of respondent's parking activities.

That state of affairs continued for about six months after the coworker's first complaint to the postal service. Then, respondent initiated renewed contact with petitioner three times, after which petitioner sought an SPO.

The first renewed contact occurred on a warm day, when petitioner was driving in her car alone with the window partially down. Respondent saw her driving toward him and tried to flag her over. They both slowed. Petitioner was alone, unlike the other settings in which respondent had previously had contact with petitioner. Through petitioner's open car window, respondent called to her and tried to get her to pull over and stop so that he could "talk to [her]." She told him "absolutely not" and drove on.

A second renewed contact occurred while petitioner was outside the salon, taking a break in the warm sunshine with other coworkers. Respondent again parked in the gravel area near the salon. Petitioner, who apparently was seated on the ground, rested her head on her knees to avert her eyes and avoid any eye contact with petitioner. She heard his footsteps on the gravel, and he approached her, greeting her as "smiley." When she responded, "what!," he accused her of being "grumpy" and left. But he did not turn to leave. Instead, he backed away, holding eye contact with her. She was forced to break his stare by putting her head down and resting it on her knees. She wanted to go inside immediately, but did not want him to believe he had succeeded in intimidating her. After about two minutes, she was so unnerved from the contact that she went inside anyway.

The third, and final, renewed contact by respondent occurred near the end of petitioner's shift one evening. Respondent did not have an appointment for a haircut, but he came in insisting that petitioner give him one. He directed petitioner: "[Y]ou're going to give me a haircut." When petitioner said she was not going to cut his hair, he demanded to know why not. She told him that she was about to finish her shift and leave, and that another hair stylist could cut his hair. He was adamant that only she could cut it. He said, "[N]o, you're the only one who knows how to do it!" He then announced that he'd be back, and turned and left.

Respondent told a much different story. With regard to whether respondent parked his mail truck in front of the salon for long periods, respondent claimed it would have been impossible to complete his route on time if he had done so. He said that he uses an electronic device that records his whereabouts as he completes his mail route and those records would prove that he never parked in front of the salon for extended periods of time. Respondent did not, however, produce those records as evidence. Respondent also claimed that he had no choice where to park. He indicated that, by direct order of his supervisor, he was to park in the first available spot, which was a disabled parking spot in front of the salon. If it was occupied, he could park in the next available spot. Respondent further asserted that he objected to parking in the disabled parking spot and finally had to bring a grievance through the union to force the supervisor to retract the order. Respondent did not corroborate his assertion by calling his supervisor or a union representative as a witness, nor did he produce any documentation of the order or the grievance. His assertions in those regards were supported only by his own testimony.

With regard to his interactions with petitioner, respondent's testimony directly contradicted petitioner's. According to respondent, it was petitioner's idea, not his, that she should begin cutting his hair. Also according to respondent, it was petitioner, not he, who became sexually solicitous. Specifically, respondent testified that petitioner told him that she was not getting along with her husband and that she was free on Monday nights. Respondent also testified that, during the...