Towell v. Steger

• Citation: 154 S.W.3d 471
• Decision Date: 01 February 2005
• Docket Number: No. 26371.,26371.
• Parties: Kristina TOWELL, Petitioner-Respondent, v. Ray STEGER, Respondent-Appellant.
• Court: Missouri Court of Appeals

154 S.W.3d 471

Kristina TOWELL, Petitioner-Respondent, v. Ray STEGER, Respondent-Appellant.

No. 26371.

Missouri Court of Appeals, Southern District, Division One.

February 1, 2005.

Albert C. Lowes, Cape Girardeau, for Appellant.

Kristina Towell, Marble Hill, pro se.

NANCY STEFFEN RAHMEYER, Judge.

Ray Steger ("Appellant") appeals from a judgment granting a full order of protection, brought pursuant to the Adult Abuse Act, sections 455.010 through 455.085,¹ by Kristina Towell ("Respondent"). Appellant claims the judgment is not supported by substantial evidence.² We agree and reverse.

Section 455.020 provides relief for (1) any adult who has been subject to abuse by a present or former adult family or household member, or (2) any adult who has been a victim of stalking. It is undisputed that Respondent and Appellant were never family or household members as defined by section 455.010(5).³ Therefore, the action was brought pursuant to the "stalking" provision of the act.

`Stalking' is when an adult purposely and repeatedly harasses or follows with the intent of harassing another adult.<sup>4</sup> As used in this subdivision, `harasses' means to engage in a course of conduct directed at a specific adult that serves no legitimate purpose, that would cause a reasonable adult to suffer substantial emotional distress. As used in this subdivision, `course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of `course of conduct.'

Section 455.010(10).

Harassment is established when the evidence reveals that the alleged harasser has engaged in a course of conduct that is directed at the alleged victim, serves no legitimate purpose, and would cause a reasonable person to suffer substantial emotional distress. The course of conduct that must be established is a series of acts, over a period of time (no matter how short), that demonstrate a continuity of purpose. Wallace v. Van Pelt, 969 S.W.2d 380, 384 (Mo.App. W.D.1998). Substantial emotional distress has been defined as conduct that brings about a significantly higher level of emotional distress than is routinely experienced in daily life, but which is not so severe that the average person finds it unendurable. Leaverton v. Lasica, 101 S.W.3d 908, 911 (Mo.App. S.D.2003). Conduct that merely causes alarm or distress to the victim does not qualify as harassment if it would not cause substantial emotional distress to a reasonable person. Id.

Unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law, we will sustain the trial court's order. Id. at 910-11. Substantial evidence has been defined as competent evidence from which the trier of fact could reasonably decide the case. Wallace, 969 S.W.2d at 382. Although the order of protection is not pursuant to any criminal statute, a violation of the order of protection is a criminal violation. See section 455.085. It is, of course, Respondent's burden to produce credible evidence to support her allegations.⁵ Trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection. Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App. E.D.2003). We find that Respondent failed to provide any evidence at all of fear of substantial emotional distress and failed to produce substantial, credible evidence that Appellant purposely and repeatedly harassed or followed her with no legitimate purpose.

We now set out the relevant contacts between Appellant and Respondent. Appellant did not testify; the evidence came in by way of the court questioning Respondent and through cross-examination. Respondent testified that approximately a year or more prior to the request for an order of protection, Appellant came into the store where Respondent was working and would "continuously flirt with [her] really bad" and "grab [her] on the butt."⁶ Respondent claimed Appellant would tell her "how redheads are great lovers" and it just "creeped" her out. Clearly, nothing in these allegations comes close to the "stalking" definition, nor indicates any substantial emotional distress.

Appellant and Respondent had no contact for three months because Respondent moved to the State of Georgia. Upon her return, she saw Appellant when he came into her work place and said, "Oh, I seen you. I figured I'd stop in." Respondent thought nothing of the meeting. In fact, later that same day, Appellant waved her down on a public street and told her he wanted her to come to his house for a drink and he would be a "perfect gentleman." She responded, "Sorry, I'm married." The conversation continued with Appellant requesting information about buying the maple syrup that Respondent sold. Respondent, claiming she treated him just like a customer, like everyone in town, borrowed a pen from Appellant and showed him her prized pet dog. She directed Appellant to the person she thought had the maple syrup and Appellant went to that business owner to purchase the syrup. Again, nothing in these conversations comes close to any definition of stalking or a claim of substantial emotional distress.

The final allegation of Respondent is that Appellant has been on the county road that leads to her driveway. Her testimony indicated that she frequented the variety store where she used to work, Ross's Minit Mart, where Appellant "goes in there and gets alcohol all the time." When Respondent visited the store, she would be told by workers that Appellant had just been there. Sometimes, when she drove home, Appellant would be "sitting down there by [her] drive" or before her driveway. Respondent also claimed she was told that Appellant was on that road during the daytime. Respondent admitted that she lives a quarter of a mile off the county road and that Appellant has never been up the driveway to her house. On one evening, Respondent, while driving home at night, came upon Appellant, who had pulled over, away from a low-water bridge; Respondent "flew past" Appellant, who did not follow her. He never made any threats to her and she never told him to leave her alone or that she found his behavior offensive. There was absolutely no testimony that Respondent suffered emotional distress, much less substantial emotional distress, over the incidents of seeing Appellant on the public roadway.⁷

We are troubled by the trial court's finding that the evidence in this case meets the definition of a course of conduct that serves "no legitimate purpose." To find a "course of conduct" to have no legitimate purpose, we must find that the actions were not sanctioned by law or custom, were not lawful, or allowed. Wallace, 969 S.W.2d at 385. The Full Order of Protection ordered Appellant not to abuse, threaten to abuse, molest, stalk or disturb the peace of Respondent wherever Respondent may be found and specifically named Ross's Minit Mart. There is no evidence of any stalking, harassment or abuse at Ross's Minit Mart and yet Appellant is banned by this order from frequenting his "regular" commercial establishment lest he encounter Respondent. It is unclear from the evidence where Appellant lives, but there does appear to be some evidence in an exhibit that Appellant may live off the county road where he had been seen driving. The mere traveling on a county road, under the facts of this case, does not supply a course of conduct that serves no legitimate purpose.⁸

We are mindful that although the Adult Abuse Act does not itself impose...