P.D.J. v. S.S.

• Decision Date: 19 December 2017
• Docket Number: No. ED 105257,ED 105257
• Citation: 535 S.W.3d 821
• Parties: P.D.J., Respondent, v. S.S., Appellant.
• Court: Missouri Court of Appeals

535 S.W.3d 821

P.D.J., Respondent,

v.S.S., Appellant.

No. ED 105257

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: December 19, 2017

FOR APPELLANT: Steven A. Waterkotte, 7750 Clayton Rd., Suite 209, St. Louis, MO 63117.

For Respondent: PRO SE—P.D.J.

ROY L. RICHTER, Presiding Judge

S.S. ("Appellant") appeals from the trial court's judgment granting a Full Order of Protection pursuant to the Adult Abuse Act, Sections 455.010 to 455.085 (RSMo. Cum. Supp. 2013).¹ The court granted P.D.J. ("Respondent") a full order of protection against Appellant for one year with an automatic renewal for a period of one year, effective until January 11, 2019. The trial court awarded $13,045.58 in damages to Respondent for damages sustained to her two vehicles. We affirm the trial court's judgment in part, and reverse in part.

I. Background

Respondent and Appellant are neighbors. In November 2016, Respondent filed an Adult Abuse (Harassment)/Stalking Petition for Order of Protection (the "Petition") under the Adult Abuse Act against Appellant. In January 2017, the trial court conducted a hearing on the Petition. At the hearing, Respondent explained that she filed the Petition because she felt that Appellant was a threat to her. When asked to describe the actions that Appellant committed which caused her concern for her safety, she responded that: (1) she received phone calls in which the caller refused to identify himself and told her to keep her dogs quiet; (2) she had received a threatening note telling her to keep her dogs quiet "OR ELSE"; and (3) her cars had been vandalized on her property in the middle of the night. As the hearing progressed, this evidence was adduced.

Respondent testified that when she received the anonymous phone calls, she asked the caller "Who is this," but never got a reply. Appellant admitted he made the anonymous phone calls to Respondent. He admitted that he called Respondent after "9:00, 10:00" in the evening, and admitted he never identified himself in the phone calls. When asked why he did not identify himself, he replied "I—I don't know. I—I—I just did not."

Appellant admitted to leaving a note on Respondent's car. When asked whether the note told Appellant to keep her dogs quiet "or else" in all capital letters, Respondent replied "that sounds fairly accurate." Appellant testified that by "OR ELSE," he meant that he would call the police or Humane Society. However, he admitted that he understood Respondent could have perceived the phrase "OR ELSE" as a threat.

Regarding the vandalism of Respondent's car, Respondent testified that on September 30, around 1:00 in the morning, she heard someone outside her house. She heard what sounded like glass breaking and loud banging noises coming from outside. She called the police. While she waited for the police to arrive, she looked outside her bedroom window which faced her driveway. She saw Appellant "walking out of [her] driveway back to his house." She testified that the lighting outside was sufficient to identify Appellant because there is a streetlight directly across the street from her house and she could always see her driveway. When asked whether she was confident that it was Appellant walking from her driveway, she answered affirmatively and stated she was "Very confident." Appellant testified that she later discovered her cars' paint had been ruined by an unknown chemical and that at least one of her vehicles appeared to have been damaged by someone throwing rocks at it. The total damage to her vehicles was approximately $13,000.

Appellant denied any involvement in the vandalism of the vehicles and testified that he had not been outside at the time alleged by Respondent. Appellant testified that police officers from the Florissant Police Department came to his house on October 1, and he was cooperative. Appellant testified that after his encounter with the police officers, a detective contacted him and asked him to come in for questioning. Appellant refused to do so, and was never arrested.

Respondent testified that she feared Appellant due to his "escalating" actions. She testified she felt he was a threat to her. She did not know what he was going to do to her next, and she installed security cameras at her home, explaining that she "never had to live like that."

Following the close of evidence, the trial court found that Respondent proved "the allegations of stalking and/or of harassment against [Appellant], and [Appellant] cannot show that his actions alleged to constitute such harassment were otherwise justified under the law." The court entered a full order of protection against Appellant, valid for one year, which will renew automatically for a second year. The court further entered a judgment for damages for $13,045.58 in favor of Respondent for the damage caused by Appellant to her vehicles. This appeal follows.

A. Standard of Review

We review an order of protection the same as any bench-tried case, and the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. C.D.R. v. Wideman, 520 S.W.3d 839, 843 (Mo. App. W.D. 2017). All facts and reasonable inferences are viewed in the light most favorable to the judgment. Schwalm v. Schwalm, 217 S.W.3d 335, 336 (Mo. App. E.D. 2007). "We defer to the trial court's credibility determinations, recognizing that the court is free to believe all, part, or none of the testimony presented. Hance v. Altom, 326 S.W.3d 133, 135 (Mo. App. S.D. 2010).

B. Sufficiency of Evidence (Point I)

In his first point on appeal, Appellant argues the trial court erred in entering a full order of protection against him because there was insufficient evidence to support its judgment. Specifically, Appellant argues that Respondent failed to prove both that Appellant engaged in an unwanted course of conduct that served no legitimate purpose and that Appellant's conduct caused Respondent alarm. Respondent declined to file a brief.

The Missouri Adult Abuse Act provides that "[a]ny person who has been subject to domestic violence by a present or former family or household member, or who has been the victim of stalking, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence or stalking...."

In its oral findings, the trial court stated that Respondent proved her "allegations of stalking and/or of harassment against [Appellant], and [Appellant] cannot show that his actions alleged to constitute such harassment were otherwise justified under the law." (Emphasis added). It is therefore not entirely clear whether the court entered its order of protection on a ground of stalking, abuse by harassment, or a combination of the two.²

Under the current statutory framework, abuse by harassment is separate from stalking.³ Compare Section 455.010 (1)(d)with Section 455.010 (14). An order of protection based on abuse by harassment is available only to victims of domestic violence.⁴ Respondent was not the victim of domestic violence because she and Appellant were not household members.⁵ Therefore Respondent could only have received an order of protection based upon an allegation of stalking. See Towell v. Steger, 154 S.W.3d 471, 473 (Mo. App. S.D. 2005) (explaining that because the respondent and appellant in an order of protection case were never family or household members, the action must have been brought under the stalking provision of the Adult Abuse Act).

Since the trial court could not have entered the order of protection based on the grounds of abuse by harassment, it was error to the extent that it did so. We will further review the judgment to determine whether there was sufficient evidence to support the judgment based on the ground of stalking.

In its current form, "stalking" is defined in the Adult Abuse Act as "when any person purposely engages in an unwanted course of conduct that causes alarm to another person ... when it is reasonable in that person's situation to have been alarmed by the conduct." Section 455.010(14). "Alarm" is defined as "to cause fear of danger of physical harm" and "course of conduct" is defined as "a pattern of conduct composed of two or more acts over a period of time, however short, that serves no legitimate purpose." Section 455.010(14)(a) and (b). Section 455.010(14)(b) provides a non-exhaustive list of examples of actions constituting an unwanted course of conduct: (1) following the other person, (2) unwanted communication, or (3) unwanted contact.

i. Course of Conduct

First, we will examine whether Appellant engaged in "a pattern of conduct composed of two or more acts over a period of time, however short, that serve [d] no legitimate purpose." Section 455.010(14)(b).

The trial court did not explicitly state which two of Appellant's acts constituted a "course of conduct" as defined in Section 455.010(14)(b). However, we have discerned from the record two such acts committed by Appellant that, together, constitute a "course of conduct."

The first act occurred when Appellant left a threatening note on Appellant's car which told her to keep her dogs quiet "OR ELSE." Appellant claimed he left the threatening note for the legitimate purpose of informing Respondent that he would notify the Humane Society if she did not keep her dogs quiet. However, the note did not explain that he would call the Humane Society or take any other legitimate action. Instead, it ended with the threat, "OR ELSE." Appellant admitted that he understood why Respondent perceived the phrase, "OR ELSE," as threatening. The trial court was free to disbelieve Respondent's explanation for leaving the note. See Hance, 326 S.W.3d at 135. Therefore, there was sufficient evidence that Appellant's note, written in such a manner, could reasonably be found to be a threat with no legitimate purpose.

The next act occurred when Appellant vandalized Respondent's...