A.M.M. v. Hoefer
| Decision Date | 19 February 2015 |
| Docket Number | CV13020176,A154043. |
| Citation | 344 P.3d 121,269 Or.App. 218 |
| Parties | In the Matter of A.M.M., Petitioner–Respondent, v. Brandon Jack HOEFER, Respondent–Appellant. |
| Court | Oregon Court of Appeals |
269 Or.App. 218
344 P.3d 121
In the Matter of A.M.M., Petitioner–Respondent
v.
Brandon Jack HOEFER, Respondent–Appellant.
CV13020176
A154043.
Court of Appeals of Oregon.
Argued and Submitted June 10, 2014.
Decided Feb. 19, 2015.
Michael P. De Muniz argued the cause for appellant. With him on the briefs was Ferder Casebeer French & Thompson, LLP.
No appearance for respondent.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
Opinion
NAKAMOTO, J.
Respondent appeals a judgment imposing a permanent stalking protective order (SPO) against him under ORS 30.866. Respondent contends, as he did before the trial court, that there was insufficient evidence to support entry of the SPO. We agree and, therefore, reverse.
The trial court ruled:
“[B]y a preponderance of the evidence the bare minimum to sustain the stalking order has been proven. There is contact, repeated and unwanted contact, that * * * is, in part, words, * * * but it is not just a words case.
“I'm finding that there is repeated and unwanted contact that an objectively reasonable
person, under the totality of the circumstances would be alarmed by, and that [respondent] knew was unwanted and represents a credible threat * * *.”
The court made no additional findings.
We review the facts for any evidence and the legal conclusions based on those facts for legal error. Travis v. Strubel, 238 Or.App. 254, 256, 242 P.3d 690 (2010).1 We presume that, absent express findings, the trial court implicitly found disputed facts consistently with the outcome. Id. at 257, 242 P.3d 690 (citing Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) ). With that in mind, we turn to respondent's contacts with petitioner.
Petitioner and respondent dated for several months until petitioner ended the relationship in January 2013. During the latter part of that month, respondent returned a fire pit that belonged to petitioner, placing it in her back yard. Around the same time, respondent set up a fake Facebook profile under the name Shauna Blaze and, posing as Blaze, began a correspondence with petitioner's male friend, Drennan, that lasted for several weeks. On February 2, 2013, respondent returned two other items belonging to petitioner, placing them on her front porch at around 7:30 p.m.
At approximately 1:30 a.m. on the morning of February 3, respondent confronted petitioner at a nightclub. Respondent had learned that petitioner was at the club from Drennan, who had invited “Blaze” to join him and his friends there. After arriving at the club, respondent approached petitioner, called her a “whore” several times and stated, “I'm glad that I found out that you are a whore so I can move on with the rest of my life.” Petitioner asked a bartender to get security. A security guard arrived and asked respondent to move away from petitioner. As petitioner was leaving the club, respondent followed behind, “saying things trying to cause a disturbance.”
Later that morning, respondent entered petitioner's backyard and took the fire pit that he had previously returned. He also took the other items that he had returned to petitioner's front porch the day before.
Between 3:00 a.m. and 1:00 p.m. that day, respondent sent five e-mails to another friend of petitioner, Dodd, in which respondent asserted, among other things, that petitioner had been lying to and using him, “stepping out” on him, and that she was a “downtown tramp” who did not deserve friends such as Dodd. Respondent also told Dodd that “[t]his is so sad as [petitioner's] two children are so sweet” and that he “hope[d] the best for [petitioner's children] as they are innocent children and great kids at that.” In his final e-mail to Dodd that day, sent at 12:15 p.m., respondent stated, “[s]orry for emailing you my drama, was just very hurt not rational thing to do.”
That evening, petitioner noticed that the fire pit and other items that respondent had taken from petitioner's home the night before had been returned and were “sitting at the very end of my driveway, basically almost on the edge of the street.” The following day, respondent again wrote to Dodd, stating, “it won't be anytime soon for this pain to stop but at least the healing process can start now[,]” and asking Dodd to “give [petitioner's children] a hug for me please (not mentioning my name of course).”
Several days later, on February 7, petitioner filed an SPO petition in which she recounted the above facts and stated that respondent's conduct at the nightclub was
“threatening.” Petitioner indicated that the unwanted contact was alarming or coercive, “because of the planning and depths that were taken in order to know what I was doing[,]” and that “the behavior and manner in which [respondent] approached” her and followed her out of the club made her afraid for her personal safety. Petitioner indicated that those contacts did not include any threat that made her afraid that serious personal violence or physical harm would happen to her very soon.
On February 9, respondent sent a final e-mail to Dodd. In that message, respondent stated that he was “torn to reach out [to petitioner] and apologize” and asked Dodd whether he should or not. Respondent stated, “I said a lot in my drunk state and many of the words were just to hurt her back and that helps no one.” Respondent told Dodd that he was “hoping you can help give me some closure so I can quit spending time on this.”
Around the same time, Drennan's ex-girlfriend, Kauffman, informed petitioner that respondent had e-mailed her several times the morning of February 3—that is, later in the morning of the nightclub confrontation and at the same time that respondent was e-mailing Dodd. In his e-mails to Kauffman, respondent said that he had information that Drennan had cheated on Kauffman. Unaware that respondent and petitioner had dated, Kauffman briefly corresponded with respondent. Respondent asked Kauffman where petitioner had been on New Year's Eve. After speaking with petitioner,...
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