B. M. v. Deaton , 307 Or. App. 763 ( 2020 )


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  •                                       763
    Argued and submitted November 5, reversed December 9, 2020
    B. M.,
    Petitioner-Respondent,
    v.
    Brooke Ann DEATON,
    Respondent-Appellant.
    Douglas County Circuit Court
    19SK02158; A172903
    479 P3d 347
    For making false allegations and complaints to petitioner’s employer and
    the police about petitioner, and for parking in front of petitioner’s house late at
    night, a trial court entered a stalking protective order (SPO) against respon-
    dent. Respondent appeals that SPO, contesting the sufficiency of the evidence
    to support it. Held: The trial court erred. Although respondent’s contacts with
    petitioner were harassing, nothing in the record allowed for the inference that
    respondent would engage in conduct that would put petitioner or her family at
    risk of physical injury, as required to support an SPO under ORS 30.866(1).
    Reversed.
    Ann Marie Simmons, Judge.
    Charles F. Lee argued the cause for appellant. Also on
    the briefs was Charles F. Lee P.C.
    Dan G. McKinney and DC Law filed the brief for
    respondent.
    Before Lagesen, Presiding Judge, and James, Judge, and
    Haselton, Senior Judge.
    LAGESEN, P. J.
    Reversed.
    764                                            B. M. v. Deaton
    LAGESEN, P. J.
    Respondent appeals a stalking protective order
    (SPO) entered against her under ORS 30.866, contesting
    the sufficiency of the evidence to support the order. Because
    this is not a case that calls for de novo review, we review the
    trial court’s factual findings for any evidence and its legal
    conclusions for errors of law. Travis v. Strubel, 
    238 Or App 254
    , 256, 242 P3d 690 (2010). Applying that standard of
    review, we conclude that the evidence is insufficient to sup-
    port the entry of the SPO against respondent. Accordingly,
    we reverse.
    To obtain an SPO, petitioner was required to prove
    that, among other elements, (1) respondent subjected her or
    members of her household to “repeated and unwanted con-
    tact” and (2) “[t]he repeated and unwanted contact cause[d]
    the victim reasonable apprehension regarding the personal
    safety of the victim or a member of the victim’s immediate
    family or household.” ORS 30.866(1). Specifically, petitioner
    was required to prove facts demonstrating that “the contacts,
    cumulatively, * * * [gave] rise to subjective apprehension
    regarding the petitioner’s personal safety or the personal
    safety of the petitioner’s immediate family or household, and
    that apprehension must be objectively reasonable.” Blastic v.
    Holm, 
    248 Or App 414
    , 418, 273 P3d 304 (2012). To satisfy
    that standard, the contacts at issue must be such that it was
    objectively reasonable to fear that respondent would “engage
    in violence or other conduct that puts the petitioner or her
    family at risk.” Huber v. Landolt, 
    267 Or App 753
    , 760-61,
    341 P3d 175 (2014). That is, the contacts must be ones that,
    in the context in which they were made, could “reasonably
    cause apprehension or fear resulting from the perception of
    a threat of physical injury.” Elliott v. Strope, 
    307 Or App 156
    ,
    161, 476 P3d 972 (2020).
    That standard was not met here. As we under-
    stand the court’s order, it determined that it was objectively
    reasonable for petitioner to fear for her personal safety or
    the safety of her family based on a finding that (1) respon-
    dent contacted petitioner’s employer multiple times alleg-
    ing (falsely) that petitioner “had been doing things” to her
    with her work uniform on; (2) respondent falsely reported to
    Cite as 
    307 Or App 763
     (2020)                                                 765
    police that petitioner had hit her with her car while respon-
    dent was jogging; and (3) respondent parked in front of peti-
    tioner’s house in the early hours of the morning.1
    Each of those contacts was, no doubt, harassing and
    unsettling. Respondent’s complaints to petitioner’s employer
    and to law enforcement triggered investigations that were
    unquestionably stressful for petitioner. It is no small thing
    to be under investigation by law enforcement or by one’s
    employer. Respondent’s behavior may well have been tor-
    tious, such that petitioner may have had tort claims avail-
    able against respondent, something the trial court explic-
    itly recognized. But an injury that might give rise to a tort
    claim against respondent does not necessarily supply a
    basis for the entry of an SPO against respondent. An SPO,
    as noted, requires evidence that allows an inference that
    the unwanted contacts made it objectively reasonable to fear
    that respondent would engage in violence or conduct that
    would put petitioner (or her family) at risk of physical injury.
    Nothing in this record allows for that inference. There is
    no evidence that respondent threatened physical harm to
    petitioner, no evidence that respondent took any other steps
    that would put the personal safety of petitioner or her family
    at risk, and no other evidence that would allow for a finding
    that any fear of physical injury resulting from respondent’s
    contacts was an objectively reasonable one.
    Reversed.
    1
    Although the bulk of the contacts at issue involved third parties, it appears
    that they qualify as contacts for purposes of ORS 30.866. See ORS 163.730(3)
    (defining “contact” for purposes of ORS 30.866). Ultimately, that issue is one we
    need not address.
    

Document Info

Docket Number: A172903

Citation Numbers: 307 Or. App. 763

Judges: Lagesen

Filed Date: 12/9/2020

Precedential Status: Precedential

Modified Date: 10/10/2024