C. P. v. Mittelbach ( 2020 )

569
Argued and submitted December 20, 2018, affirmed June 10, 2020
C. P.,
Petitioner-Respondent,
v.
Brock Robert MITTELBACH,
Respondent-Appellant.
Washington County Circuit Court
17SK01905; A166230
468 P3d 496
Respondent challenges the sufficiency of the evidence supporting the perma-
nent stalking protective order that petitioner obtained against him. Held: The
evidence was sufficient for the trial court to conclude, as required under ORS
163.738(2)(a)(B), that respondent had engaged in repeated and unwanted con-
tacts with petitioner with the requisite mental state (intentionally, knowingly,
or recklessly) and that petitioner’s alarm and apprehension regarding her or
a family member’s personal safety, arising from the contacts, were objectively
reasonable.
Affirmed.
Theodore E. Sims, Judge.
Andy Simrin argued the cause for appellant. Also on the
brief was Andy Simrin PC.
Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Lagesen, Judge, and
James, Judge.
ORTEGA, P. J.
Affirmed.
570 C. P. v. Mittelbach
ORTEGA, P. J.
Appealing from a permanent stalking protective
order (SPO) that petitioner obtained against him, respon-
dent challenges the sufficiency of the evidence supporting
the SPO.1 We conclude that the evidence was sufficient
for the trial court to conclude, as required under ORS
163.738(2)(a)(B), that respondent had engaged in repeated
and unwanted contacts with petitioner with the requisite
mental state (intentionally, knowingly, or recklessly) and
that petitioner’s alarm and apprehension regarding her or a
family member’s personal safety, arising from the contacts,
were objectively reasonable. Therefore, we affirm.2
De novo review is neither requested nor warranted.
See ORAP 5.40(8)(c) (only in “exceptional cases” will we exer-
cise our discretion to try a cause anew). As such, we review
the trial court’s factual findings for any evidence and legal
conclusions for errors of law, viewing the evidence and all
reasonable inferences drawable therefrom in the light most
favorable to the issuance of the SPO and assessing whether,
when so viewed, the record is legally sufficient to permit
that outcome. Christensen v. Carter/Bosket, 261 Or App 133,
135, 323 P3d 348 (2014) (viewing record in light most favor-
able to court’s disposition). We state the facts consistently
with those standards.
Petitioner is a top Oregon Department of Correc-
tions (DOC) official. Respondent is a former DOC correc-
tional officer. From July 2016 until March 2017, the parties’
interactions consisted almost exclusively of (over 57) emails
that respondent had sent to DOC management, including
petitioner, raising work-related issues. One email, for exam-
ple, concerned respondent’s discontent with the prospect
of requiring correctional officers to work 12-hour shifts.
Petitioner always rerouted respondent’s emails “back through
his chain of command.” On March 1, 2017, respondent began
1
Pursuant to ORAP 5.15(1), we refer to the parties by their designation in
the trial court.
2
Our conclusion that the record was sufficient to support issuance of the
SPO and the applicable standards of review in this case obviate the need to sepa-
rately discuss defendant’s first assignment of error—that the trial court erred in
denying his motion for a directed verdict, brought after petitioner had rested her
case.
Cite as 304 Or App 569 (2020) 571
to attend evening mass at petitioner’s church. Petitioner,
who had been an active member of the church since 2004,
had never seen respondent there before, and she did not
recognize him until respondent approached her during the
mass to introduce himself.3 At the time, petitioner did not
think much of the matter. However, between that incident
and respondent’s termination on June 30, 2017, a series of
interactions at the church that were initially unremarkable
eventually led petitioner to contact the Oregon State Police
(OSP) for dignitary protection, a service provided to public
officials confronted with threats.
On March 17, 2017, respondent was placed on admin-
istrative leave for alleged misconduct related to excessive
overtime work. He emailed petitioner and asked that she
call him at the number provided because he trusted only
her. Although petitioner would not normally be involved in
the disciplinary process of a “line employee” who was “six or
seven layers down” the chain of command, she made the call
after consulting her deputy and out of concern for respon-
dent’s well-being. Respondent was “incredibly upset” on the
call and “crying, almost uncontrollably.” Petitioner testified:
“[Respondent] discussed that his life was over, that he
absolutely could not lose his job. His job was his everything.
That’s where all his friends were. He didn’t have friends
outside of the agency.
“He had lost two relationships * * * because of the job,
that he needed to support his children * * *. * * * [H]e said
that he didn’t even have [it] in him to turn his vehicle on.”
Worried that respondent was suicidal, petitioner asked a
colleague to drive him home and to check his place for weap-
ons; she knew that, as a correctional officer, respondent
owned and was trained to use firearms. With respondent’s
consent, petitioner also contacted the church to reach out to
respondent with support resources.
A couple of weeks later, petitioner saw respondent at
church, and he looked very distraught. After mass, petitioner
3
The parties had briefly met in person once before, when respondent was
staffing the gates at a DOC facility and petitioner was conducting a site visit.
Petitioner had forgotten about the encounter until respondent reintroduced him-
self at the church on March 1.
572 C. P. v. Mittelbach
approached respondent and asked how he was doing. After
respondent answered, “Not doing very well,” petitioner
offered him a “professional hug.” Respondent “held on for
just a little bit too long as [petitioner] pulled away. His
hands moved down to [her] waist and rested there for a sec-
ond.” Petitioner did not say anything to respondent at the
time, attributing the conduct to his emotional state, but she
reported that incident to her husband, her deputy, and the
inspector general.
Shortly after the hugging incident, while saying
goodbye at the end of mass, respondent looked at petitioner
and said that he “really like[d] [her] nail color[.]” That com-
ment struck petitioner as “incredibly odd” and prompted her
to walk away. At another mass, respondent approached peti-
tioner from behind, such that she could not see him in her
periphery, and he placed his hand on the small of her back
and brushed it around her side, causing petitioner to jump,
startled. He handed her a card and then left.4
At several masses, respondent would “stand and
stare” at petitioner until petitioner’s friends and family
“peel[ed] off” before approaching her alone. On April 16,
2017, for example, respondent sat directly behind petitioner
and her family at church but otherwise did not approach
her while her husband was around. After petitioner’s hus-
band left, respondent drove up to her in the parking lot
and appeared to “fish[ ]” for an invitation to Easter brunch.
Petitioner testified that she did not realize how “stressful”
respondent’s attendance at mass nearly every Sunday had
been for her, until she experienced how “incredibly peaceful”
it felt when he first missed a mass.
During a special mass in early June 2017, petitioner,
who is a eucharistic minister, sat in a reserved area so that
she could easily access the altar to help serve communion.
Halfway through the mass, respondent arrived and climbed
over the back of a pew to sit about three spots from peti-
tioner in the reserved area, causing a disturbance. When
it was time to kneel, respondent made a move to a seat
4
The record suggests that the “nail color” incident occurred on April 9, 2017.
The date of the “card” incident is unclear from the record. Petitioner testified that
she “remember[s] specific events, but not necessarily specific dates.”
Cite as 304 Or App 569 (2020) 573
closer to petitioner, who reacted by reaching for her pepper
spray and phone. Respondent also tried to hold petitioner’s
hand during a moment in the program when such practice
was normal, but she denied his attempt. Several times,
respondent aggressively tried to talk to petitioner about
his disciplinary hearing (“My papers are being delivered
tomorrow. What does that mean?”) and insisted that she
had the authority to make the final decision in the process
(“Well, you’re going to be there. You’re the final say, right?”).
Despite petitioner’s response that she was not involved in
the process, respondent’s insistence that the final decision
rested with her was a recurring theme. Later, as petitioner
served communion, respondent stared at her coldly and
unrelentingly. Respondent’s behavior frightened petitioner,
prevented others from interacting with her, and caused her
to make a mistake while serving communion.
Several people told petitioner that they also found
respondent’s behavior disconcerting. Once when respon-
dent was not at mass, petitioner’s young daughters spon-
taneously expressed that they were glad for his absence,
because his glares made them very uncomfortable. When
petitioner recounted the preceding incidents to an experi-
enced public safety official, Sinclair, he advised petitioner to
immediately request dignitary protection, because respon-
dent was exhibiting “textbook stalking” behavior. Petitioner
heeded that advice, and OSP Detective Wilson was assigned
to the case. After petitioner described to him respondent’s
behavior, Wilson opined that respondent was far more bra-
zen at that point than the stalker in a high-profile case who
ultimately went to the workplace of the victim (also a public
official) with intentions to kidnap, rape, and murder her and
to dispose of her body.
On June 30, 2017, respondent was fired. That same
day, per petitioner’s request, Wilson informed respondent
that his behavior had caused petitioner fear and, “just to be
clear, she doesn’t want any more contact with you.” Wilson
explained that respondent could still go to church and do
“any of the things that you normally do”; “[t]he only thing
that * * * we’re asking you not to do is just physically contact
her, you know, or even go up to her and * * * literally touch her
or contact her, * * * call her, email, * * * those types of things.”
574 C. P. v. Mittelbach
Respondent acknowledged understanding petitioner’s per-
spective: “[I]f I’m in her shoes, a female, * * * a guy knows
right where the church, he’s having issues at work, yeah,
I—I get it.” He agreed to stop contacting petitioner.
Despite that initial agreement, however, respon-
dent engaged in behavior on two subsequent occasions that
would form the basis for the SPO. First, on July 16, 2017,
Wilson and another officer provided protection to petitioner
when she attended church. While the two officers were out-
side, respondent approached them to shake their hands.
Inside, respondent chose a seat where he could direct a cold,
unrelenting stare at petitioner for an “inordinate amount of
time.” Afterward, respondent “mirror[ed]” petitioner’s move-
ments in an apparent attempt to orchestrate an occasion in
which they would walk out together: When she stopped to
talk to someone, he stopped to talk to someone; when she
headed for the exit, he headed for the exit. Petitioner waited
for respondent to leave first, but he paced around near the
door and then sat in his truck for “what seemed like a really
long time” before finally driving away.
Second, on September 3, 2017, petitioner attended
church with her daughters, as usual, and respondent
brought his sons, which was less usual. While petitioner’s
13-year-old daughter was in a reserved room preparing for
her duties as an altar server, respondent momentarily poked
his head in, looked at her, and then addressed the deacon:
“I just need to let you know there’s a State Police detective
sitting behind.” Petitioner was terrified that respondent had
briefly been in her daughter’s vicinity while she and the
officers were elsewhere. Later, respondent pointed out peti-
tioner, her daughters, and the officers to his sons. As before,
he sat where he could stare at petitioner during the entire
mass. After mass ended, respondent positioned himself near
the door and continued staring at petitioner.
By the time of the September incident, petitioner had
read Wilson’s report on his investigation. That report stated
that, after the July incident, Wilson had had a follow-up
conversation with respondent, during which respondent
appeared agitated, retributive about his termination, and
contemptuous toward petitioner, making “conspiracy-type”
Cite as 304 Or App 569 (2020) 575
allegations for why she was, in his view, accusing him of
stalking. Petitioner learned that respondent had previously
expressed a desire to kill his ex-wife, his ex-fiancée’s hus-
band, and his two sisters. The report also described inci-
dents in which respondent had tried to intimidate other peo-
ple with his presence and glares.
Petitioner sought an SPO. At the evidentiary hear-
ing, petitioner, Wilson, and respondent’s ex-fiancée testi-
fied on petitioner’s behalf to the above-described facts. The
trial court made the necessary findings under ORS 163.738
(2)(a)(B) and issued the SPO. Respondent appealed.
ORS 163.738(2)(a)(B) provides that the court may
enter a permanent SPO if it finds, by a preponderance of the
evidence, that
“(i) The [respondent] intentionally, knowingly or reck-
lessly engages in repeated and unwanted contact with the
other person or a member of that person’s immediate fam-
ily 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.”5
The statute requires at least two unwanted contacts. ORS
163.730(7) (“ ‘Repeated’ means two or more times.”). Each con-
tact, individually, must give rise to subjective alarm, and that
alarm must be objectively reasonable.6 T. B. v. Holm, 248 Or
5Although this case involves an SPO issued under ORS 163.738 rather than
ORS 30.866, both statutes require the same evidentiary showing. See Delgado v.
Souders, 334 Or 122, 132 n 4, 46 P3d 729 (2002) (so stating). Therefore, case law
discussing ORS 30.866 is equally applicable to our consideration of this case.
6
ORS 163.738(2)(a)(B)(ii) requires the petitioner to be subjectively alarmed
or coerced and that alarm or coercion to be objectively reasonable. As to coer-
cion, petitioner did not testify, and no evidence in the record indicates, that she
was subjectively coerced by the contacts. See ORS 163.730(2) (“ ‘Coerce’ means
to restrain, compel or dominate by force or threat.”). Therefore, we do not eval-
uate whether the circumstances would have given rise to objectively reasonable
coercion.
576 C. P. v. Mittelbach
App 414, 418, 273 P3d 304 (2012). “Alarm” means “to cause
apprehension or fear resulting from the perception of danger.”
ORS 163.730(1). “Danger,” in turn, refers to “a threat of phys-
ical injury, [and] not merely a threat of annoyance or harass-
ment.” Reitz v. Erazo, 248 Or App 700, 706-07, 274 P3d 214
(2012). Finally, the contacts, cumulatively, must give rise to
subjective apprehension regarding the petitioner’s personal
safety or the personal safety of a member of the petitioner’s
immediate family or household, and that apprehension must
be objectively reasonable. T. B., 248 Or App at 418.7
On appeal, respondent does not dispute that the
July and September incidents constitute “repeated and
unwanted contacts.”8 See ORS 163.730(3) (defining “contact”
nonexhaustively); King v. W. T. F., 276 Or App 533, 538, 369
P3d 1181 (2016) (“The term ‘contact’ includes ‘almost any
interaction with the petitioner.’ ” (Quoting Christensen, 261
Or App at 140.)). Nor does respondent challenge the trial
court’s conclusion that the contacts caused petitioner sub-
jective alarm and apprehension. Rather, respondent argues
that petitioner failed to establish (1) that he engaged in
the contacts with the requisite mental state (intentionally,
knowingly, or recklessly) and (2) that petitioner’s alarm and
apprehension were objectively reasonable.9
First, we readily conclude that respondent engaged
in both of the unwanted contacts with the requisite mental
state. Respondent contends otherwise, emphasizing that,
7
An additional requirement applies to “expressive contacts,” that is, speech-
based contacts. In those circumstances, the petitioner also must prove that the
expressive contacts involved threats that “instill[ ] in the addressee a fear of
imminent and serious personal violence from the speaker, [are] unequivocal, and
[are] objectively likely to be followed by unlawful acts.” State v. Rangel, 328 Or
294, 303, 977 P2d 379 (1999). Petitioner does not allege that the contacts at issue
are expressive in nature.
8
Although the trial court did not specify which contacts provided the basis
for its issuance of the SPO, the parties’ trial and appellate arguments and the
court’s explanation for its ruling indicate that they mutually understood these to
be the qualifying contacts.
9
Respondent does not precisely set out his arguments regarding the objec-
tive reasonableness of petitioner’s alarm arising from a particular contact, ORS
163.738(2)(a)(B)(ii), and the objective reasonableness of petitioner’s apprehension
arising from the contacts cumulatively, ORS 163.738(2)(a)(B)(iii)—two overlap-
ping but distinct requirements of the stalking statute. However, we understand
him to have raised both arguments and proceed with that understanding.
Cite as 304 Or App 569 (2020) 577
since June 30, he had “literally” followed Wilson’s instruc-
tions to not approach, talk to, or touch petitioner. Given that
literal compliance, respondent argues, he cannot be said to
have acted intentionally, knowingly, or recklessly, as ORS
163.738(2)(a)(B)(i) requires.
In context, however, those specific types of contacts
were but examples that Wilson had given at one point in a
larger conversation in which he repeatedly and unequivo-
cally informed respondent that petitioner did not want any
further contact from him. At the very least, the trial court
was entitled to conclude that respondent was “aware of and
consciously disregard[ed] a substantial and unjustifiable
risk” that petitioner did not want him to contact her by other
means as well, such as by positioning himself in her path,
staring at her unrelentingly, and mirroring her movement
to orchestrate a close-proximity encounter. ORS 161.085(9)
(defining “recklessly”). Evidence that respondent would
engage in prolonged staring as an intimidation tactic further
shows that he knew it was unwanted behavior. We conclude
that, when respondent engaged in the July and September
contacts, he did so with the requisite mental state.
Next, we address respondent’s contention that peti-
tioner’s alarm and apprehension were not objectively rea-
sonable, as required by ORS 163.738(2)(a)(B)(ii) and (iii). As
discussed above, each “contact,” individually, must give rise
to objectively reasonable alarm, and those contacts, cumu-
latively, must give rise to objectively reasonable apprehen-
sion regarding petitioner’s or her family member’s personal
safety. We conclude that petitioner’s alarm arising from the
July contact, her alarm arising from the September contact,
and her apprehension arising from the contacts cumula-
tively were all objectively reasonable. We discuss each con-
clusion in turn.
With respect to the July contact, respondent argues
that his act of shaking hands with the officers was innoc-
uous and that staring is not an objective basis for alarm.
However, “conduct that might appear benign when viewed
in isolation can take on a different character when viewed
either in combination with or against the backdrop of one
party’s aggressive behavior toward the other.” J. L. B. v.
578 C. P. v. Mittelbach
K. P. B., 250 Or App 122, 130, 279 P3d 290 (2012) (citation
omitted). On that day, aside from greeting the officers and
staring at petitioner for an “inordinate” amount of time, he
“mirrored” her movements in an attempt to encounter her
in close physical proximity, and he waited a long time before
leaving.
In addition, although respondent’s earlier acts may
not constitute qualifying contacts, they nevertheless provide
relevant context. See, e.g., Habrat v. Milligan, 208 Or App
229, 237, 145 P3d 180 (2006) (“[I]n considering the effect
of th[e] contacts on petitioner and on a reasonable person
in petitioner’s position, we may consider as context respon-
dent’s persistent and inappropriate sexual overtures, along
with his directive and demanding style of interaction.”). At
the time of the July contact, the context relevant to con-
sidering the objective reasonableness of petitioner’s alarm
include that respondent was going through an emotionally
challenging period, having recently been fired; he expressed
to petitioner that he viewed her as having had the authority
to influence that employment decision; he had been inappro-
priately intimate toward her on three occasions; he would
wait to approach her when she was alone; he had once dis-
ruptively climbed over a pew in the middle of mass to sit
near her; he would stare at her unrelentingly; he had been
informed by the police that his behavior frightened her; and
he had acknowledged understanding her fear. Furthermore,
the concerns of petitioner’s daughters, Sinclair, and Wilson,
as well as petitioner’s awareness of their concerns, are note-
worthy. See, e.g., Habrat, 208 Or App at 239 (other people’s
concern for the petitioner and their fear of the respondent
add to the reasonableness of the petitioner’s alarm). In light
of the foregoing, it was objectively reasonable for petitioner
to be alarmed by respondent’s contact in July.
With respect to the September contact, petitioner’s
alarm was again objectively reasonable—for the above-
discussed reasons regarding the July contact and the addi-
tional reason that she had read Wilson’s report stating that
respondent was increasingly antagonistic toward her, that
he had expressed wanting to kill people with whom he was
angry, and that he had used the same tactics of staring and
imposing his presence to intimidate other people. Also, at
Cite as 304 Or App 569 (2020) 579
that point, the police had reached out to respondent twice to
inform him of petitioner’s fear. That respondent disregarded
the warnings, persisted in the complained-of behavior, and
even came around petitioner’s daughter while petitioner and
the officers were elsewhere added to the objective reason-
ableness of petitioner’s alarm at that contact.
Finally, we conclude that petitioner’s apprehension
regarding her or a family member’s personal safety, arising
from the preceding contacts cumulatively, was objectively
reasonable. Respondent argues to the contrary, contending
that the record lacked any evidence that he had been violent
or had used firearms against anyone; that he had threatened
petitioner; or that he had ever followed her home or at her
workplace. Respondent describes his behavior as “somewhat
boorish, but nonthreatening.” Additionally, he argues that
petitioner did not give any indication of what she thought he
would do to endanger her or her family’s personal safety.
“We assess the objective reasonableness of a person’s
apprehension over personal safety by examining the cumu-
lative effect of the relevant unwanted contacts.” P. M. H. v.
Landolt, 267 Or App 753, 759, 341 P3d 175 (2014) (citing
Christensen, 261 Or App at 139-40). Respondent’s focus on
the evidence that is not in the record causes him to overlook
the evidence that is in the record. To briefly recap, respon-
dent is a recently fired and emotionally distraught former
employee who became increasingly fixated on and angry
toward petitioner—who was reliably informed that his
stalker behavior was particularly brazen—and he repeat-
edly engaged in unwanted contacts with petitioner at her
place of worship, despite police warnings and presence. That
distinguishes this case from Sparks v. Deveny, in which the
petitioner “did not identify any apprehension relating to her
or anyone else’s personal safety, and nothing in the record
implies such concerns.” 221 Or App 283, 291, 189 P3d 1268
(2008) (emphasis added). Here, the record was sufficient for
the trial court to conclude that petitioner’s apprehension
was objectively reasonable. Accordingly, the trial court did
not err in issuing the SPO.
Affirmed.