Amarillas v. White

292 P.3d 587, 253 Or. App. 754, 2012 Ore. App. LEXIS 1451
Court of Appeals of Oregon·Decided December 5, 2012·No. 113127Z0; A149377·Published·Cited by 6 cases

Opinion

HADLOCK, J.

Respondent appeals the trial court’s entry of a stalking protective order (SPO). The sole issue on appeal is the sufficiency of the evidence supporting that order. Because this is not an “exceptional case” justifying de novo review, we review the trial court’s factual findings for “any evidence” and its legal conclusions for errors of law. See Travis v. Strubel, 238 Or App 254, 256, 242 P3d 690 (2010) (explaining standard of review applicable to SPO appeals); ORAP 5.40(8)(c) (“The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases.”). Applying that standard of review, we conclude that the evidence is sufficient to support the entry of the SPO against respondent. Accordingly, we affirm.

When the sufficiency of the evidence supporting an SPO is challenged, we view the evidence, and all reasonable inferences that may be drawn from it, in the light most favorable to the petitioner. Delgado v. Souders, 334 Or 122, 134, 46 P3d 729 (2002). That said, except as noted below, the parties do not present greatly differing versions of the pertinent historical facts, although they disagree vehemently about the significance of several events. Petitioner and respondent worked together for five years at the Drug Enforcement Agency (DEA) and were fairly close friends. At some point, petitioner became engaged to be married and, at a party in December 2010, respondent made offensive comments to petitioner’s then-fiancée. Shortly thereafter, petitioner confronted respondent about his comments and told respondent, “[Wle’re done. We’re not friends anymore, I don’t want anything to do with you.” That same evening, respondent sent petitioner a string of 19 text messages, starting at 6:14 p.m. and ending at 1:08 a.m. Although petitioner did not save the text messages, he testified that the first message was apologetic, but the next was “more sarcastic” and subsequent messages “would go back and forth in between put downs and threats,” including respondent calling petitioner a “douche bag,” saying he would “kick [petitioner’s] ass” when he next saw him, and saying that petitioner’s fiancée should “get a protective order” for [756] petitioner, because he was “going to need it.” Petitioner did not respond to the text messages; instead, he blocked respondent’s telephone number.

The next day, both petitioner and respondent went to the office, but they did not say a word to each other. At the SPO hearing, petitioner acknowledged that he had not feared going to work that day, despite knowing that respondent would be there, and despite the fact that — according to petitioner — respondent once had pointed a loaded firearm at him, sometime before their December 2010 confrontation. Petitioner explained that he could choose whether to work with another DEA agent on particular cases, and he had decided no longer to work on cases with respondent.

Within the next week, petitioner learned that respondent had told a supervisor that petitioner had “taken money from a search warrant,” was growing medical marijuana for profit, was suicidal, and was “in collections” and “getting property repossessed.” During the subsequent investigation, the parties’ supervisor decided to keep both men working, even though they worked in the same office space, as their desks were separated by a bank of lockers. Although the men worked in the same office, they did not talk to each other.

On at least two different days in February 2011, respondent repeatedly dry fired his duty weapon when he and petitioner were working at the DEA office. On each of those occasions, respondent dry fired his weapon at least 10 or 15 times over the course of a minute or more. On the first of those occasions, petitioner was alone; on the other, two additional officers witnessed the dry firing. Petitioner did not believe that respondent was dry firing his gun after having cleaned it, as petitioner did not smell any solvent. At the SPO hearing, respondent’s counsel asked petitioner on cross-examination whether he had been in fear of respondent harming him with the gun at that point. Petitioner responded, “I was armed at the time, too, sir.” Counsel then asked, “My question was, you were not concerned at that point, about him harming you,” to which petitioner replied, “I was concerned enough to stand up and walk over to see what he was doing, yes.” Petitioner testified [757] that two other people had complained to a DEA supervisor about the dry-firing incidents.

Respondent acknowledged at the SPO hearing that he had dry fired his gun, but said that he was “just playing with [it],” noting that DEA agents always have firearms at the office. Respondent denied that he had intended to place petitioner in fear when he dry fired his gun. The trial court rejected that aspect of respondent’s testimony. Instead, the court explained in its written ruling that it had inferred from the evidence that respondent dry fired his gun with the intent to intimidate petitioner and that petitioner “did experience apprehension as a result of that conduct.” The court also found that respondent’s conduct constituted contacts that were unwanted by petitioner.

Soon after the dry-firing incidents, respondent stopped working for the DEA for reasons that are not entirely clear from this record.1 Petitioner eventually was exonerated of the allegations that respondent had made against him. He had no other contact with respondent after February 2011, except for the incident described below.

After leaving the DEA, respondent obtained employment as a detective with the Josephine County Sheriff’s ffice. At some point in the past, the Medford Police Department had investigated respondent on other allegations of misconduct unrelated to his dispute with petitioner. Those allegations had resulted in an indictment, but apparently no conviction, although the record does not reveal exactly how the charges were resolved.2 In June 2011, [758] and apparently in response to those earlier allegations, the sheriff relieved respondent of certain narcotics-investigation duties (which had given him the opportunity to work significant overtime) and assigned him different responsibilities. Respondent testified at the SPO hearing that the sheriff had told him that he did not want the fact of respondent’s previous indictment “to affect their federal cases.”

On June 27, 2011, the day after respondent learned of his changed duties, he drove his motorcycle to petitioner’s house, stopped near the end of petitioner’s driveway, and— seeing petitioner through a window — revved his engine and yelled at petitioner to come outside.3 Petitioner testified that he believed respondent was armed and threatening him:

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Amarillas v. White, 292 P.3d 587, 253 Or. App. 754, 2012 Ore. App. LEXIS 1451 (Or. Ct. App. 2012).

292 P.3d 587 (Amarillas v. White) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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