Bryant v. Walker

78 P.3d 148, 190 Or. App. 253, 2003 Ore. App. LEXIS 1418
CourtCourt of Appeals of Oregon
DecidedOctober 22, 2003
Docket02-01548CV; A118386
StatusPublished
Cited by15 cases

This text of 78 P.3d 148 (Bryant v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. Walker, 78 P.3d 148, 190 Or. App. 253, 2003 Ore. App. LEXIS 1418 (Or. Ct. App. 2003).

Opinions

[255]*255SCHUMAN, J.

Petitioner obtained a stalking protective order against respondent based on his repeated contacts with her at her workplace. On appeal, respondent raises a plethora of issues, only one of which was adequately raised below: whether sufficient evidence supported issuance of the order. We do not address the unraised issues. Ailes v. Portland Meadows, Inc., 312 Or 376, 380-82, 823 P2d 956 (1991). We affirm.

The facts, viewed (along with all reasonable inferences that can be drawn from them) in the light most favorable to petitioner, Delgado v. Souders, 334 Or 122, 134, 46 P3d 729 (2002), are as follows. In 1997, petitioner began work as a cashier at a large department store in Klamath Falls. She worked there for two years before moving. During that time, she noticed that respondent would enter the store, buy small items such as magazines and cigarettes, and pay for them at her check stand. She also noticed that he would stare at her from various parts of the store, but his behavior did not disturb her during that period.

After a year away from Klamath Falls, petitioner returned to work at the store in September 2000. For the next two years, she noticed respondent visiting the store at least three times a week. On one occasion, he parked his car next to hers as she pulled into the store’s lot. Petitioner also once observed respondent drive by her house, but, according to her testimony, she lived on a busy street and was not certain that he saw her. Most of the disturbing contacts, therefore, occurred in the store, where respondent would follow petitioner from aisle to aisle and department to department, staring at her in a fashion that she and a coworker regarded as abnormal, ominous, and sexually suggestive. That conduct made petitioner uncomfortable and frightened, and at some point she asked the store’s security personnel to monitor respondent when he was in the store. She also once asked respondent, “What are you looking at?” He responded, “Oh you look nice,” to which she replied, “You don’t need to stare.” Thereafter they did not speak, but he continued to stare and [256]*256to follow her around the store. On at least one occasion, petitioner asked a coworker to stand by her for reassurance and protection when respondent was nearby. The coworker regarded defendant’s conduct toward petitioner as so offensive that, as she testified, she glared at him as if to say, “Have some decency.” Further, at some point, petitioner learned from a different coworker that, in 1992, respondent’s ex-wife had petitioned for a restraining order against him on the ground that he was abusive and violent.

On April 27, 2002, petitioner contacted Klamath Falls police and described the situation and her concerns. An officer issued respondent an Oregon Uniform Stalking Citation. ORS 163.735. Pursuant to the citation, a show cause hearing was held on April 30 and May 9, 2002. Neither party was represented by counsel. The trial court issued a protective order. Respondent appeals.

Under ORS 163.738(2)(a)(B), petitioner may obtain a stalking protective order (SPO) against a person if the trial court finds by a preponderance of the evidence that:

“(i) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household thereby alarming or coercing the other person;
“(ii) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; 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.”

At a minimum, then, to obtain an SPO, petitioner must prove by a preponderance of the evidence that respondent had two or more contacts with her; that at least two of these contacts alarmed her; that her alarm was objectively reasonable; that respondent was aware of a substantial and unjustifiable risk that petitioner did not want those contacts and consciously disregarded that risk; and that the contacts, cumulatively, caused her reasonably to fear for her personal safety. Delgado, 334 Or at 134. Respondent argues that the evidence [257]*257does not permit a reasonable trier of fact to find by a preponderance of the evidence that these requirements have been met. We disagree.

Abundant evidence supports the finding that repeated contacts occurred; a contact is defined to include “[c]oming into the visual or physical presence of the other person” and “[fiollowing the other person.” ORS 163.730(3)(a), (b). Further, corroborated testimony establishes that the contacts alarmed petitioner and caused her to fear for her personal safety. And although petitioner’s one spoken exchange with respondent, when she told him to stop staring at her, does not conclusively establish that he knew that further contact would be unwanted, the exchange was surely sufficient to make him aware of a substantial risk that further contact was unwanted.

The closer question is whether petitioner’s fear and alarm were “objectively reasonable for a person in [her] situation * * *.” ORS 30.866(l)(b). The significant contacts all occurred in a public place where petitioner was not alone. No overt threats occurred. However, respondent did drive by petitioner’s house on one occasion, and, although she could not testify with certainty that he did so intentionally or even that he saw her, that one incident could reasonably have led petitioner to suspect that respondent knew personally identifiable information about her. In addition, she had information that, at some point in the past, respondent’s then-wife had accused him of violence. Those facts, in light of the fact that petitioner is a 22-year-old woman,1 suffice to support the conclusion that her alarm and fear were reasonable. We therefore reject respondent’s substantive argument.

As the dissent notes, respondent also argues on appeal that he did not have a constitutionally adequate hearing because the trial court did not allow him to be heard or to cross-examine petitioner. However, respondent did not object [258]*258in any way to the trial court’s conduct of the hearing. Therefore, he did not preserve the alleged procedural error. The dissent argues that we should nonetheless consider respondent’s argument because the error is “apparent on the face of the record.” ORAP 5.45(1). To be apparent on the face of the record, the error

“must be ‘apparent,’ i.e., the point must be obvious, not reasonably in dispute; and * * * it must appear ‘on the face of the record,’ i.e., the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.”

Ailes, 312 Or at 381-82 (citing State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990)).

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Bryant v. Walker
78 P.3d 148 (Court of Appeals of Oregon, 2003)

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Bluebook (online)
78 P.3d 148, 190 Or. App. 253, 2003 Ore. App. LEXIS 1418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-walker-orctapp-2003.