DocketNumber: No. ED 99465
Citation Numbers: 406 S.W.3d 115
Judges: Gaertner, III, Mullen
Filed Date: 8/20/2013
Status: Precedential
Modified Date: 10/2/2021
R.W. appeals the judgment of the trial court entering a full order of protection against him and in favor of M.L.G. R.W. claims there was insufficient evidence of “stalking” as defined in the Missouri Adult Abuse Act to support the judgment. We reverse and remand.
I. BACKGROUND
Viewed in the light most favorable to the judgment, the underlying facts are as follows: R.W. and M.L.G. are long-time neighbors, sharing an adjoining property line. R.W.’s property consists of approximately eight acres in a semi-rural area. M.L.G. owns four and a half acres adjacent to R.W.’s property. Although both M.L.G. and R.W. testified they seldom interacted with each other, on September 11, 2012,
M.L.G. subsequently filed a petition for an order of protection against R.W.
II. DISCUSSION
A. Standard of Review
We will affirm the judgment in a court-tried case unless the judgment is not supported by the evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo.App. E.D.2006). Because of the potential stigma that may attach to an individual who is labeled a “stalker” under the Missouri Adult Abuse Act, trial courts must exercise great care in enforcing the provisions and to ensure sufficient evidence exists to support all elements of the statute before entering a full order of protection. Id.
B. Evidence of Stalking
In his first point on appeal, R.W. claims the trial court erred in entering a full order of protection against him because the evidence of a single incident is not sufficient to support a finding of “stalking” as defined by statute.
The trial court entered a full order of protection pursuant to Section 455.040 RSMo (Cum.Supp.2012),
The evidence in the present case related largely to the single altercation between M.L.G. and R.W. on September 12. Although the court attempted to create two incidents from this single incident, doing so was a misapplication of the law. A single incident is insufficient to support a judgment for a full order of protection against R.W. for stalking. Dennis, 314 S.W.3d at 791; See also Todd v. Plack, 318 S.W.3d 809, 812 (Mo.App. W.D.2010) (single incident insufficient to support entry of full order of protection). Thus, the sole altercation on September 12 between M.L.G. and R.W. is not sufficient to support a finding of stalking pursuant to Section 455.010(13).
We note that M.L.G. was asked during the hearing about whether any additional incidents occurred during which R.W. placed M.L.G. in fear of immediate harm. M.L.G. testified R.W. and his wife had driven “up and down the road” and stopped in front of M.L.G.’s house following the September 12 incident. However, included in the stalking definition contained in Section 455.010(13) is a requirement that the conduct or act serve no legitimate purpose. Here, there was evidence that the parties shared a driveway, and therefore, we cannot conclude R.W. and his wife’s use of the road did not serve a legitimate purpose. As a result, this was not sufficient to establish stalking as defined by the statute. M.L.G. also testified R.W. discharged a firearm several times in the vicinity of M.L.G.’s house; however, the record is not clear whether M.L.G. was actually present for this incident. While M.L.G. did testify that “we” heard someone discharge a firearm repeatedly, M.L.G.’s wife testified she was returning home and getting out of her car when she saw R.W. coming down the street to his house. She heard someone discharging the firearm thereafter, but she did not say if M.L.G. was with her at the time. In addition, she testified she could not state with certainty it was R.W. firing the weapon, and both M.L.G. and R.W. acknowledged R.W. had a place on his property designated for shooting firearms. While we agree the parties did experience a single violent encounter, this is not sufficient to support a finding that R.W. “purposely and repeatedly” engaged in an unwanted course of conduct as required by the definition of stalking under Section 455.010(13).
For the foregoing reasons, we do not believe there was sufficient evidence to support the trial court’s entry of judgment of a full order of protection based upon its finding of stalking. Therefore, the court erred in entering a full order of protection against R.W. Point one on appeal is granted.
The judgment of the trial court entering a full order of protection is reversed and the cause is remanded with instructions to the trial court to vacate the full order of protection and deny M.L.G.’s petition.
. M.L.G.'s wife also filed a petition for order of protection; however, the trial court dismissed her petition following the hearing.
. All further statutory references are to RSMo (Cum. Supp.2012).
. Because M.L.G. and R.W. were not family members or members of the same household, M.L.G. could only seek an order of protection based upon an allegation of stalking. See Dennis v. Henley, 314 S.W.3d 786, 789 (Mo.App. S.D.2010) (parties did not fall within any definition of family or household members, and therefore could only seek order of protection based upon an allegation of stalking).
. R.W. also asserts a second and final point on appeal, claiming the trial court applied the incorrect burden of proof. According to R.W., the trial court considered the merits of M.L.G.'s petition for order of protection by viewing the evidence in the light most favorable to M.L.G. However, the record merely reflects the court's proper consideration of R.W.’s motions to dismiss by viewing the evidence in the light most favorable to the petition. See Smith v. Rost, 906 S.W.2d 906, 907 (Mo.App. S.D.1995) (when considering motion to dismiss allegations in petition are con