Murray M. Campbell v. Ruth L. Drollinger ( 2017 )

FILED
APRIL 25, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MURRAY M. CAMPBELL, JR., )
) No. 33977-7-111
Respondent, )
)
v. )
)
RUTH L. DROLLINGER, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. - Ruth Drollinger appeals a civil anti-harassment protection order
entered against her, arguing that it was improperly based on constitutionally protected
speech and that oral findings on which the trial court based the order were not supported
by substantial evidence. Because the order was based on substantial evidence unrelated
to protected speech, we affirm.
No. 33977-7-111
Campbell v. Drollinger
FACTS AND PROCEDURAL BACKGROUND
On October 1, 2015, Murray Campbell, proceeding prose, petitioned for an anti-
harassment protection order against Ruth Drollinger. 1 He and Ms. Drollinger had been
involved in a romantic relationship that ended badly earlier in the year. His petition was
heard on December 8, 2015. At the hearing, Mr. Campbell testified to the following
events, all of which occurred in 2015, in support of his petition.
• In the first part of June, Ms. Drollinger contacted a female acquaintance of Mr.
Campbell to warn her about him. She sent the woman a video recording of what Ms.
Drollinger describes as an assault and Mr. Campbell describes as an argument. She also
directed the woman to a website, "LiarsCheatersRUs.com," where a posting written in
part by Ms. Drollinger described Mr. Campbell's history of affairs and stated he was an
"impulsive alcoholic, with a violent streak." Ex. 1, at 9.
• On June 27, Mr. Campbell was contacted by Terry Towner, the secretary of the
Yakima Beekeeper's Association, to which Mr. Campbell and Bruce Drollinger, Ms.
Drollinger's brother, belonged. Ms. Towner told him Ms. Drollinger had called to ask if
Mr. Campbell would be attending the Association's picnic that afternoon at Mr.
Drollinger' s home because she-though not a member of the Association-planned to
1
Ms. Drollinger's notice of appeal appended materials filed in the proceeding
below that were not designated as clerk's papers, including Mr. Campbell's petition and
its attached sheriffs reports. We have reviewed those filings in rendering our decision.
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attend. On learning of Ms. Drollinger's plans, Mr. Campbell chose to stay away. Ms.
Towner later informed him that Ms. Drollinger did come to the picnic and stayed for
about 45 minutes.
• On June 29, Ms. Drollinger called Brian Dennis, a coworker of Mr. Campbell's at
the Yakima School District. She asked Mr. Dennis whether Mr. Campbell was seeing
another woman, told him Mr. Campbell had issues with anger and alcohol, and threatened
to reveal court records to the school district. Mr. Campbell assumed the records she
threatened to disclose to his employer were from Ms. Drollinger's unsuccessful petition
for a domestic violence protection order against Mr. Campbell in May. 2
• On July 22, at approximately 11 :00 p.m., Mr. Campbell saw a white Ford Focus
drive down the private driveway he shares with a neighbor. He could not see who the
driver was, but knew that Ms. Drollinger's son drove a white Ford Focus. The car turned
north at the end of the driveway and then headed west toward the neighbors' property,
but "came back within a matter of minutes, stopped at the corner, and then proceeded
down the driveway onto the main road." Report of Proceedings (RP) at 13. 3 Mr.
2
Ms. Drollinger appears to seek review of the denial of her petition. But her
petition, which was the subject matter of a different proceeding, was denied on May 27,
2015. Ms. Drollinger's notice of this appeal was filed over six months later. Because
any appeal of that order is untimely, it will not be addressed further. See RAP 5.2
(requiring the filing of a notice within 30 days of the order for which review is sought).
3
All references to the report of proceedings are to the record of the hearing taking
place on December 8.
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Campbell v. Drollinger
Campbell called his neighbors to see if the driver had visited them. They said no, and
upon learning that Mr. Campbell suspected the driver had been Ms. Drollinger, told him
that Ms. Drollinger had contacted them a few days before to inquire whether Mr.
Campbell was home. Ms. Drollinger told the neighbors that Mr. Campbell's son said she
could stop by Mr. Campbell's home to collect a stock tank belonging to her. Mr.
Campbell immediately contacted his son, who denied having talked with Ms. Drollinger.
• On September 9, Bruce Drollinger contacted Mr. Campbell to see ifhe wanted a
beehive. Mr. Campbell did, and he drove to Mr. Drollinger's home to pick it up. While
Mr. Campbell and Mr. Drollinger were loading the beehive into Mr. Campbell's truck,
Ms. Drollinger arrived and told Mr. Campbell she had some things for him. She gave
him photo albums she had made that included his family and her. She also gave him a
pair of sunglasses, saying they were ones he had lost on a trail ride with his daughter to
Snow Peak Cabin. It was true that on July 23, Mr. Campbell had taken his daughter for a
long weekend horse riding trip to the cabin and that he had lost his sunglasses. Mr.
Campbell had stayed at the same cabin with Ms. Drollinger years before and in February
2015, he had reserved the cabin again, for July, with the expectation that Ms. Drollinger
would come along. By July Ms. Drollinger was no longer invited, but she remained
aware of Mr. Campbell's reservation dates. After handing Mr. Campbell his sunglasses,
Ms. Drollinger attempted to continue a conversation with him. He told her he had to go.
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Mr. Campbell later discovered that Ms. Drollinger posted a request on Facebook
on July 22 looking for a trail guide to take her on the trail that leads to the Snow Peak
Cabin on the day he and his daughter would be checking out of the cabin. A couple of
days later, she included a post on her Facebook page about her ride, stating she had
"wanted to relive a ride to Snow Peak Cabin." Ex. 1, at 6.
• Finally, on the morning of September 12, 2015, Ms. Drollinger approached Mr.
Campbell as he was working in his yard. Asked why she was there, she told him she had
brought money to reimburse him for attorney fees he incurred in defending against her
petition for a domestic violence protection order against him. She asked if he had a
minute to talk, and he said "you have one minute." RP at 28. She began asking
questions about whether Mr. Campbell was seeing his daughter's mother again and why
he did not go to counseling to save their (Ms. Drollinger and his) relationship. Mr.
Campbell told Ms. Drollinger twice to stop, that she needed to leave, and that he would
call the sheriff if she did not, but she continued to question him. She finally left when
Mr. Campbell pulled out his cell phone and began to phone the sheriff. She left without
giving him money to cover his attorney fees.
Sheriff reports attached to Mr. Campbell's petition for the protective order reveal
that he had reported Ms. Drollinger's objectionable conduct to the Yakima County
Sheriffs Office on June 19, June 26, June 29, July 23, September 9, and September 22.
The sheriffs reports indicate that on more than one occasion, Mr. Campbell was advised
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that the sheriff would take no action but he could seek an anti-harassment order at the
courthouse.
Ms. Drollinger also testified at the December 8 hearing, questioned by her lawyer,
who focused on her online activities warning people about Mr. Drollinger. She admitted
to having helped write the post on LiarsCheatersRUs.com. She also admitted to visiting
the Snow Peak area on July 26 but stated she went with a male friend for reasons
unrelated to Mr. Campbell's visit. As for her encounters with Mr. Campbell at her
brother's home and in Mr. Campbell's yard, she claimed that on both occasions she was
just responding to Mr. Campbell's lawyer's demand that she reimburse Mr. Campbell for
the attorney fees he incurred defending against her petition for a protective order.
At the conclusion of the evidence, the trial court orally ruled. It did not regard Ms.
Drollinger's call to Ms. Towner about the beekeeper picnic as harassment, because it
could be interpreted as an attempt to avoid contact with Mr. Campbell. It found that the
remainder of her conduct could reasonably be perceived as "a deliberate attempt to keep
[Mr. Drollinger] under surveillance" and was conduct that would cause a reasonable
person to be annoyed or concerned about their safety and welfare. It found that Ms.
Drollinger intended to frighten, intimidate, or harass Mr. Campbell. RP at 77, 72. It
entered a one-year order of protection.
When asked by Ms. Drollinger's lawyer whether the order was based on any of
Ms. Drollinger's online posts about Mr. Campbell, the court stated it was not based on
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Ms. Drollinger's "blogs," observing that "she has the right to post what she believes,
whether it's libelous or slanderous or not, again, is for another Judge and Court to
consider. That fact has not been considered by the Court." RP at 7 6-77. It was her
"overall course of conduct in contacts with others" that the court said satisfied it that she
intended to annoy and harass Mr. Campbell. Id. at 77.
Ms. Drollinger appeals.
ANALYSIS 4
Under RCW 10.14.080, a court shall enter a civil anti-harassment protection order
if it "finds by a preponderance of the evidence that unlawful harassment exists." RCW
10.14.080(3).
"Unlawful harassment" means a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys, harasses, or
is detrimental to such person, and which serves no legitimate or lawful
purpose. The course of conduct shall be such as would cause a reasonable
person to suffer substantial emotional distress, and shall actually cause
substantial emotional distress to the petitioner.
RCW 10.14.020(2) ( emphasis added). "' Course of conduct"' includes communications
and contact "but does not include constitutionally protected free speech." RCW
10.14.020(1).
4
No issue is raised on appeal as to whether this case is moot. The anti-harassment
protection order has expired by its terms. While a strong argument can be made that it is
moot, we decline to dismiss the case on this basis, which was not raised or briefed.
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The decision to grant or deny a protection order is reviewed for an abuse of
discretion. RCW 10.14.080(6); State v. Noah, 103 Wash. App. 29, 43, 9 P.3d 858 (2000).
"Findings will be upheld on appeal if they are supported by substantial evidence in the
record." In re Marriage ofStewart, 133 Wash. App. 545, 550, 137 P.3d 25 (2006).
"' Substantial evidence' is a quantum of evidence sufficient to persuade a rational fair-
minded person that the premise is true." Proctor v. Huntington, 146 Wash. App. 836, 845,
192 P.3d 958 (2008), aff'd, 169 Wash. 2d 491, 238 P.3d 1117 (2010).
Ms. Drollinger's first assignment of error assumes that material she posted online
about Mr. Campbell's history of affairs provided support for issuance of the protection
order, in violation of her constitutional free speech rights. While Ms. Drollinger's lawyer
elicited testimony from Mr. Campbell that her derogatory online statements upset him,
that was not the focus of Mr. Campbell's complaints to the court. And when asked, the
trial court stated it was not basing the protection order on Ms. Drollinger's online posts
because it recognized she had a constitutional right to say such things.
The trial court was focused on Ms. Drollinger's pattern of keeping Mr. Campbell
under surveillance, using means calculated to let him know she was not going to leave
him, or people close to him, alone. "' [I]t has never been deemed an abridgment of
freedom of speech or press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means of language, either
spoken, written, or printed."' Cox v. Louisiana, 379 U.S. 559, 563, 85 S. Ct. 476, 13 Lans. Ch.
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Ed. 2d 487 (1965) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490,502, 69
S. Ct. 684, 93 L. Ed. 834 (1948)).
Ms. Drollinger next assigns error to three of the trial court's oral findings, arguing
they are not supported by substantial evidence. First, she argues the trial court's finding
that she knowingly and willfully attempted to keep Mr. Campbell under surveillance and
to harass and annoy him is not supported by the record. She claims she always had
legitimate reasons for being where she was and that there is no evidence the white Ford
Focus had anything to do with her.
"Circumstantial evidence" refers to evidence from which, based on a fact finder's
common sense and experience, he or she may reasonably infer something that is at issue
in a case. DeYoungv. Campbell, 51 Wash. 2d 11, 16,315 P.2d 629 (1957). The law does
not distinguish between direct evidence and circumstantial evidence in terms of their
weight or value in finding facts. State v. Siert, 186 Wash. 2d 869, 879, 383 P.3d 466
(2016). The trial court was not required to accept Ms. Drollinger's explanation of her
conduct; intent is typically proved through circumstantial evidence. State v. Vasquez,
178 Wash. 2d 1, 8, 309 P.3d 318 (2013). As the trial court observed, Ms. Drollinger's
repeated run-ins with Mr. Campbell and persons close to him were hard to explain, given
their breakup many months earlier, other than as surveillance. The record indicates, for
instance, that Snow Peak Cabin, where Ms. Drollinger found Mr. Campbell's sunglasses,
is in the Colville National Forest, hundreds of miles away from Yakima. See Ex. 1. The
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credibility, weight, and persuasiveness of the evidence is the trial court's province, not
ours. State v. Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d 970, abrogated in part on other
grounds by Crawfordv. Wash., 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Second, Ms. Drollinger argues that Mr. Campbell was never seriously distressed
or threatened by her actions. But Mr. Campbell testified several times to his concern. He
testified that learning of Ms. Drollinger's trip to Snow Peak Cabin the same weekend he
was there upset him. He said it bothered him that Ms. Drollinger wanted to have a
"friendly" conversation with him at her brother's house after she had accused him in
court of having assaulted her. RP at 36. He testified that when she came to his home on
September 12, she tried to reach up and touch his hand, and he pulled back because he
didn't want her to touch him. The fact that Mr. Campbell contacted the sheriff on six
occasions to complain about Ms. Drollinger's actions supports the fact that her conduct
"seriously alarm[ed], annoy[ed], harass[ed], or [was] detrimental to [him]." See RCW
10.14.020(2). Substantial evidence supports the trial court's finding that Ms. Drollinger's
actions caused Mr. Campbell substantial emotional distress.
Ms. Drollinger next assigns error to the trial court's alleged failure to consider her
and Mr. Campbell's relationship and his alleged history of abuse against her and his ex-
wife. She points to the court's instruction that she answer yes or no to certain questions,
stating it "[didn't] have time for the background." Br. of Appellant at 32 (citing to
questioning at RP p. 4 7). She contends that consideration of the "facts of the
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relationship" is required by Hough v. Stockbridge, 150 Wn.2d 234,236, 76 P.3d 216
(2003). Hough requires consideration of the facts of the parties' relationship only with
regard to the trial court's exercise of discretion in determining the appropriate constraints
of the protection order. Id.
In the portion of the record that Ms. Drollinger cites, the trial court merely
instructed her, as courts often admonish witnesses, to answer yes or no to questions
calling for yes or no answers. She had responded to such a question with an irrelevant
explanation. The trial court allowed Ms. Drollinger's lawyer to question her about her
and Mr. Campbell's prior relationship, their breakup, and her online activity accusing
him of infidelity and abuse. Both parties were allowed to present relevant evidence.
On a related note, Ms. Drollinger contends the trial court was biased against her
because it believed Mr. Campbell over her, failing to recognize that an "abuser may lie
about the victim or make up things she did so he can get a criminal case filed against
her." Br. of Appellant at 33. The fact that a trial court finds one witness more credible
than another does not demonstrate bias. It is the trial court's job as fact finder.
Finally, Ms. Drollinger asserts the trial court cannot be trusted to have come to a
fair result because it made mistakes when discussing dates, names, and backgrounds. It
appears from our record that the December 8 hearing was the first time the trial court had
the opportunity to review and hear any detailed allegations, evidence, or argument about
the parties' situation or history. In this sort of hearing, trial courts are generally required
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to work mostly, if not exclusively, from their own notes. Ms. Drollinger does not
identify any prejudicial misunderstanding on the part of the court. See RAP 10.3(a)
(requiring identification of each error allegedly made, citation to the record, and
argument of the issues raised).
Ms. Drollinger fails to show an abuse of discretion by the trial court. We affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J.
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