J. C. R. v. McNulty ( 2020 )

286
Submitted November 30, 2018, affirmed May 20, 2020
J. C. R.,
Petitioner-Appellant,
v.
Colin Joel McNULTY,
Respondent-Respondent.
Washington County Circuit Court
17SK02244; A166592
467 P3d 48
Petitioner appeals an order dismissing a citation that sought a stalking pro-
tective order (SPO) against respondent, ORS 163.738, contending that the trial
court erred in concluding that the SPO could not issue because petitioner had not
shown that respondent posed a “credible threat.” Held: The correct standard for
“alarm” in determining whether to issue an SPO based on nonexpressive conduct
is whether the conduct gave rise to an objectively reasonable fear of a threat of
physical injury. Although the trial court erroneously used the phrase “credible
threat” to describe the conduct required for an SPO based on nonexpressive con-
duct, the error does not require dismissal, because the evidence in the record
would not support a finding that respondent’s nonexpressive conduct gave rise to
an objectively reasonable fear of a threat of physical injury. Thus, the trial court
reached the correct disposition.
Affirmed.
Eric Butterfield, Judge.
Jill Petty filed the briefs for appellant.
John M. Berman filed the briefs for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
ARMSTRONG, P. J.
Affirmed.
Cite as 304 Or App 286 (2020) 287
ARMSTRONG, P. J.
Petitioner appeals an order dismissing a citation
that sought a stalking protective order (SPO) against respon-
dent, ORS 163.738, contending that the trial court erred in
concluding that the SPO could not issue because petitioner
had not shown that respondent posed a “credible threat.”
We conclude that the trial court did not err and therefore
affirm.1
Petitioner has not requested that we review this
matter de novo, and we decline to do that. See ORAP 5.40(8)
(providing that the court will exercise its discretion to
review de novo “only in exceptional cases”). In light of the
trial court’s conclusion that the SPO should not issue, we
view the evidence and all reasonable inferences in the light
most favorable to respondent. Van Hoesen v. Williams, 271
Or App 466, 467, 351 P3d 808 (2015) (viewing record in light
most favorable to court’s disposition). We review the trial
court’s findings for “any evidence” and the court’s legal con-
clusions for legal error. King v. W. T. F., 276 Or App 533, 537,
369 P3d 1181 (2016). See also Delgado v. Souders, 334 Or
122, 134, 46 P3d 729 (2002) (reviewing as a question of law
whether the evidence was sufficient to support the issuance
of an SPO).
The parties had a brief romantic relationship that
petitioner decided to end. Respondent continued to contact
petitioner through various means. This proceeding was
initiated based on petitioner’s complaint to a Washington
County Sheriff’s deputy, who issued a citation to respondent
under ORS 163.735. The citation described respondent’s
alleged conduct:
“Showed up at Petitioner’s more than two times w/o
permission; shown up at sons baseball game unwanted,
contacted her friends about her via facebook, numerous
emails, has been to Petitioner’s Lodge unannounced, and
taken pop cans off petitioner’s porch while petitioner not
home. All activity has occurred after being told to stop and
no more contact.”
1
Respondent contends in a cross-assignment of error that some of the trial
court’s findings are not supported by evidence in the record. Respondent did not
preserve that contention in the trial court, and we therefore do not consider it.
288 J. C. R. v. McNulty
When a person has been cited under ORS 163.735,
a court may issue an SPO when the court finds, by a prepon-
derance of the evidence, that:
“(i) The person intentionally, knowingly or recklessly
engages in repeated and unwanted contact with the other
person or a member of that person’s immediate family or
household thereby alarming or coercing the other person;
“(ii) It is objectively reasonable for a person in the vic-
tim’s situation to have been alarmed or coerced by the con-
tact; and
“(iii) The repeated and unwanted contact causes the
victim reasonable apprehension regarding the personal
safety of the victim or a member of the victim’s immediate
family or household.”
ORS 163.738(2)(a). Several of the statutory terms are defined.
“Repeated” means at least two incidents. ORS 163.730(7).
“Contact” includes, among other behavior, speaking or writ-
ing to a person, delivering objects to his or her home, and
waiting outside the person’s home. ORS 163.730(3). “Alarm”
means “to cause apprehension or fear resulting from the
perception of danger.” ORS 163.730(1). We have held that
the type of “danger” that must be perceived by the contacted
person to experience “alarm” is “a threat of physical injury,
not merely a threat of annoyance or harassment.” Reitz v.
Erazo, 248 Or App 700, 706, 274 P3d 214 (2012) (respon-
dent’s aggressive shopping behavior did not provide a basis
for objectively reasonable “apprehension or fear resulting
from the perception of danger”).
The requirements of “alarm,” “coercion,” and “rea-
sonable apprehension” have both subjective and objective
components. Weatherly v. Wilkie, 169 Or App 257, 259, 8 P3d
251 (2000). The subjective component means that the contact
must have caused actual alarm or coercion and actual appre-
hension regarding the person’s physical safety. The objective
component means that the contacted person’s alarm or coer-
cion and reasonable apprehension of physical danger must
have been objectively reasonable, ORS 163.738(2)(a)(B)(ii),
(iii). Each of the unwanted contacts, individually, must give
rise to both subjective and objectively reasonable alarm or
Cite as 304 Or App 286 (2020) 289
coercion. Bachmann v. Maudlin, 283 Or App 548, 549, 389
P3d 413 (2017) (internal quotation marks omitted).
Contacts involving expression are subject to addi-
tional requirements. In State v. Rangel, 328 Or 294, 303,
977 P2d 379 (1999), the Supreme Court held that, when a
contact is expressive—either oral or in writing—the Oregon
Constitution, Article I, section 8, requires that the contact
constitute a threat of serious personal violence—a “commu-
nication that instills in the addressee a fear of imminent
and serious personal violence from the speaker, is unequivo-
cal, and is objectively likely to be followed by unlawful acts.”
Id. at 303. The threat of serious personal violence must be
“so unambiguous, unequivocal, and specific to the addressee
that it convincingly expresses * * * the intention that it will
be carried out.” Id. at 306. We said, in S. L. L. v. MacDonald,
267 Or App 628, 633, 340 P3d 773 (2014), that the require-
ment is met by evidence that the expressive conduct pres-
ents a “credible threat” of imminent serious physical harm.
This case comes to us in an unusual posture. The
typical SPO appeal involves a challenge to the sufficiency of
the evidence in support of the issuance of an SPO. T. J. N.
v. Schweitzer, 297 Or App 481, 443 P3d 680 (2019). This
appeal is a challenge to the court’s dismissal of a citation for
an SPO. Petitioner contends that, in dismissing the citation,
the court erroneously required proof that respondent’s con-
duct posed a “credible threat,” when that is not an element
stated in the statute.
At the relevant time, a standardized form used by
courts to address stalking protective petitions and citations
included the “credible threat” requirement among a check-
list of elements for the court to determine.2 Here, the court
2
The form included a list of elements for the court to determine:
“1. Respondent has intentionally, knowingly and/or recklessly engaged
in repeated and unwanted contact with the Petitioner or a member of the
Petitioner’s immediate family or household, and it was reasonable for
Petitioner to be alarmed or coerced by this contact.
“2. Respondent knew or should have known that the repeated contact
was unwanted.
“3. Petitioner was alarmed or coerced by this unwanted contact. “Alarm”
means to cause apprehension or fear resulting from the perception of danger.
‘Coerce’ means to restrain, compel or dominate by force or threat.
290 J. C. R. v. McNulty
dismissed the citation after concluding that, although peti-
tioner had established each of the other elements, she had
failed to establish that respondent posed a “credible threat,”
which, the court explained, was required by our case law
and by the standardized form.3
“4. It is objectively reasonable for a person in Petitioner’s situation to
have been alarmed or coerced by Respondent’s contact.
“5. Respondent’s repeated and unwanted contact caused the Petitioner
reasonable Apprehension regarding the Petitioner’s own personal safety or
the safety of a member of his/her immediate family or household.
“6. Respondent represents a credible threat to the physical safety of
Petitioner or Petitioner’s or Respondent’s children.
“7. The unwanted contact occurred within two years of the filing of this
action.
“8. If applicable: Any unwanted contact that was purely communicative
in nature was perceived by Petitioner as a credible threat of imminent seri-
ous personal violence or physical harm to Petitioner or to a member of his/
her family, and it was reasonable to believe that such a threat was likely to
be followed by unlawful acts (not necessary if two other requisite contacts
exist).”
The court checked each item except numbers 6 and 8.
3
The court issued its ruling from the bench:
“[Petitioner’s counsel]: Your Honor, a stalking protective order, the Court
needs to find by the preponderance of the evidence whether the person inten-
tionally, knowingly or recklessly engages in unwanted contact.
“THE COURT: He did that.
“[Petitioner’s counsel]: Did that. Okay. And that it has to be repeated.
“THE COURT: He did that.
“[Petitioner’s counsel]: All right. Your Honor, and that that contact, that
unwanted contact thereby alarmed or coerced the other person.
“THE COURT: That criteria’s been met as well.
“[Petitioner’s counsel]: Okay. Your Honor—and then it’s objectively rea-
sonable for a person in the victim’s situation to have been alarmed or coerced
by the contact.
“THE COURT: I think that’s true also.
“[Petitioner’s counsel]: Okay. Your Honor, that the repeated and
unwanted contact caused the victim reasonable apprehension regarding the
personal safety of the victim or a member of the victim’s immediate family or
household.
“THE COURT: That criteria’s been met also.
“[Petitioner’s counsel]: Is there any criteria I haven’t met?
“THE COURT: That respondent represents a credible threat to the phys-
ical safety of petitioner or petitioner or respondent’s children, which means
that despite the fact this guy’s a freak, he doesn’t get it, he’s just psycho
e-mail dude. Unless he’s a credible threat of physical harm to your client—
“[Petitioner’s counsel]: Are you looking at—which statute are you refer-
ring to, Your Honor?
Cite as 304 Or App 286 (2020) 291
Petitioner contends on appeal that proof of a “credi-
ble threat” is not among the elements that a petitioner must
establish to obtain a stalking protective order under ORS
163.738 and that the trial court therefore erred.
Petitioner is correct that the term “credible threat”
is not used in the statute.4 But although the exact term
in not included in the statute, our case law has required
conduct that either consists of or is analogous to a “cred-
ible threat” for the issuance of an SPO based on conduct
involving expression. As noted, when conduct is expressive,
the Supreme Court has held that the Oregon Constitution
requires a “communication that instills in the addressee
a fear of imminent and serious personal violence from the
speaker, is unequivocal, and is objectively likely to be fol-
lowed by unlawful acts” and a threat of serious personal vio-
lence that is “so unambiguous, unequivocal, and specific to
the addressee that it convincingly expresses * * * the inten-
tion that it will be carried out.” Rangel, 328 Or at 306. In
S. L. L., 267 Or App at 633, we used the short-hand descrip-
tion “credible threat” of imminent serious physical harm to
describe that standard. Much of the conduct alleged here
was communicative, consisting of emails, cards, and a let-
ter; the requirement for a credible threat would be applica-
ble to each of those contacts.
“THE COURT: I’m referring to the standard court order that the Court
of Appeals requires us to complete in these cases.
“[Petitioner’s counsel]: I am looking at ORS—
“THE COURT: It’s item—it’s Item No. 7 on Page 2 of the Uniform
Stalking Protective Order.
“[Petitioner’s counsel]: I’m looking at ORS 163.738, Your Honor. And that
would be—
“THE COURT: I can see how looking at that might make you think the
criteria are met, but the way that the Court of Appeals has interpreted that,
they’re telling us that he needs to be a credible threat and that you need
to prove it. And so far, I haven’t heard anything that would suggest that
he is.”
4
However, “a credible threat to the physical safety of the petitioner or the
petitioner’s child” is among the statutory elements necessary for the issuance of
an order under the Family Abuse Prevention Act (FAPA). ORS 107.718(2) (FAPA
order will issue “upon a showing that the petitioner has been the victim of abuse
committed by the respondent within 180 days preceding the filing of the petition,
that there is an imminent danger of further abuse to the petitioner and that the
respondent represents a credible threat to the physical safety of the petitioner or
the petitioner’s child.”).
292 J. C. R. v. McNulty
The Rangel “credible threat” standard does not
apply to nonexpressive conduct. Thus, in stating that peti-
tioner had not established a “credible threat,” the trial court
did not use the correct terminology. But that error does not
require reversal. To “alarm,” as used in ORS 163.738(1)(a)(ii)
means “to cause apprehension or fear resulting from the
perception of danger.” ORS 163.730(1). In Reitz we held that
the type of “danger” that must be perceived is “a threat of
physical injury, not merely a threat of annoyance or harass-
ment.” The statute thus requires an objectively reasonable
fear of a threat of physical injury. 248 Or App at 706. See also
S. A. B. v. Roach, 249 Or App 579, 586, 277 P3d 628 (2012)
(requiring proof of an objectively reasonable apprehension
or fear of physical injury). It is undisputed that respondent’s
expressive contacts did not include threats. The evidence
here would not support a finding that respondent’s non-
expressive conduct gave rise to an objectively reasonable fear
of a threat of physical injury. Thus, the trial court reached
the correct disposition. The trial court therefore did not err
in dismissing the citation.
Affirmed.