L. E. K. v. Elbert ( 2024 )

No. 503 July 17, 2024 831
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
L. E. K,
Petitioner-Respondent,
v.
SPENCER SLADE ELBERT,
Respondent-Appellant.
Baker County Circuit Court
23SK02326; A182155
Kirsten E. Thompson, Judge.
Argued and submitted June 14, 2024.
George W. Kelly argued the cause and filed the briefs for
appellant.
Laura E. Klement argued the cause and filed the brief for
respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
PER CURIAM
Reversed.
832 L. E. K. v. Elbert
PER CURIAM
Respondent appeals the trial court’s entry of a judg-
ment issuing a permanent stalking protective order (SPO)
under ORS 30.866(1).1 Respondent raises one assignment of
error, contending that the trial court erred in concluding that
the requirements for the issuance of an SPO were met. In par-
ticular, respondent contends that the evidence in the record
does not support the trial court’s finding that respondent’s
conduct caused petitioner an objectively reasonable fear for
her personal safety. We agree that the evidence in the record
does not support the trial court’s determination that peti-
tioner’s alarm was objectively reasonable. Thus, we reverse.
In reviewing a trial court’s judgment issuing an
SPO, “[w]e review the trial court’s factual findings for any
supporting evidence and its legal conclusions for legal error.
We view the evidence and all reasonable inferences that
may be drawn from it in the light most favorable to the trial
court’s disposition and assess whether, when so viewed, the
record is legally sufficient to permit that outcome.” C. L. C.
v. Cordell, 318 Or App 654, 655, 508 P3d 73 (2022) (internal
citation and quotation marks omitted).
“To obtain an SPO under Oregon’s civil stalking stat-
ute, [ORS 30.866,] a petitioner must establish the following
elements by a preponderance of the evidence:
“(1) that the respondent engaged in ‘repeated and
unwanted contact’ with the petitioner;
“(2) that the petitioner was subjectively alarmed or
coerced by the contact and that such alarm or coercion was
objectively reasonable;
1
ORS 30.866(1) provides that:
“A petitioner may bring a civil action in a circuit court for a court’s
stalking protective order or for damages, or both, against a respondent if:
“(a) The respondent intentionally, knowingly or recklessly engages in
repeated and unwanted contact with the petitioner or a member of the peti-
tioner’s immediate family or household thereby alarming or coercing the
petitioner;
“(b) It is objectively reasonable for a person in the petitioner’s situation to
have been alarmed or coerced by the contact; and
“(c) The repeated and unwanted contact causes the petitioner reasonable
apprehension regarding the personal safety of the petitioner or a member of
the petitioner’s immediate family or household.”
Nonprecedential Memo Op: 333 Or App 831 (2024) 833
“(3) that the petitioner subjectively experienced appre-
hension about personal safety as a result of the contact and
that such apprehension was objectively reasonable; and
“(4) that the respondent acted with the requisite mental
state.”
H. L. P. v. Jones, 309 Or App 108, 113, 481 P3d 415 (2021).
The record supports the trial court’s findings that
respondent engaged in unwanted contacts with petitioner
by repeatedly riding his bicycle past her house; that he did
so intentionally, knowingly, or recklessly; and that those
contacts caused petitioner to subjectively fear for her per-
sonal safety.
However, ORS 30.866(1) also requires that respon-
dent’s contacts caused petitioner an objectively reasonable
fear for her personal safety. The record before us refer-
ences various other contacts—those at petitioner’s place
of employment, and those at or near petitioner’s home.
Petitioner testified that one time, while the parties were
still in their relationship and six months before the bicycle
riding began, respondent blocked petitioner with his body as
she attempted to leave his house. She also testified that, on
another occasion, again while they were still in their rela-
tionship and almost a year before the bicycle riding began,
respondent slapped her in the face.
In its ruling from the bench, the trial court rea-
soned that one of the prior incidents described by petitioner
made petitioner’s fear of the bicycle riding objectively rea-
sonable. The court found:
“[G]iven that there was a history of at least one incidence
of conflict where the Respondent prevented the * * * or
attempted to prevent the Petitioner from leaving * * *
Petitioner had a reasonable apprehension regarding her
personal safety.”
It is not entirely clear which incident the trial court was
referring to, but it appears to have been referring to the
blocking incident. The trial court made no mention of the
alleged slap. The evidence in the record about the nature
and circumstances of those acts, which occurred many
months before the bicycle riding, is legally insufficient to
834 L. E. K. v. Elbert
allow a reasonable inference that the parties’ past relation-
ship was “so characterized by violence or abuse” as to make
the more recent contacts objectively threatening. See J. L. B.
v. Braude, 250 Or App 122, 130, 279 P3d 290 (2012) (explain-
ing that two prior incidences of the respondent’s threatening
and violent behavior toward the petitioner and their daugh-
ter did not create an objectively reasonable fear for the peti-
tioner’s personal safety when the respondent repeatedly
drove by the petitioner’s house and took pictures, because
“the parties’ past relationship was not so characterized by
violence or abuse as to make the more recent contacts objec-
tively threatening”).
We conclude, for that reason, that the record is
legally insufficient to support the issuance of an SPO;
although respondent’s contacts with petitioner may have
caused petitioner subjective alarm, in light of the legal
framework in which we consider SPOs and the limited evi-
dence in the record, we cannot conclude that such alarm was
objectively reasonable. Accordingly, we conclude that the
trial court erred in issuing the SPO.
Reversed.