Gray v. McGinnis

374 P.3d 941, 277 Or. App. 679
CourtCourt of Appeals of Oregon
DecidedApril 20, 2016
DocketC137906CV; A156079
StatusPublished
Cited by3 cases

This text of 374 P.3d 941 (Gray v. McGinnis) 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
Gray v. McGinnis, 374 P.3d 941, 277 Or. App. 679 (Or. Ct. App. 2016).

Opinion

FLYNN, J.

Respondent appeals from the trial court’s entry of a stalking protective order (SPO), issued pursuant to ORS 163.738. He contends that the trial court erroneously based the SPO on text and voice messages that express constitutionally protected speech. See State v. Rangel, 328 Or 294, 306, 977 P2d 379 (1999). We agree with respondent that the text and voice messages do not satisfy the Rangel standard for contacts involving speech and that the record contains no evidence of other contacts sufficient to permit the SPO.

Neither party has requested that we review this matter de novo, and we decline to do so. See ORAP 5.40(8) (providing that the court will exercise its discretion to review de novo “only in exceptional cases”). Therefore, given the trial court’s conclusion that the SPO should issue, “we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the petitioner.” Noriega v. Parsons, 253 Or App 768, 770, 296 P3d 522 (2012). We review as “a question of law whether the evidence presented was sufficient to support the elements required to obtain an SPO.” Delgado v. Souders, 334 Or 122, 134, 46 P3d 729 (2002).

I. BACKGROUND

Petitioner and respondent met through petitioner’s work for an establishment called the Sinful Fashion Boutique. Petitioner described her work at the boutique as modeling lingerie for individual customers, and respondent was one of her customers. After their first meeting, in September 2013, respondent scheduled an appointment to meet petitioner every day for approximately two weeks. He then stopped calling or coming to the boutique for several weeks, but resumed appointments with petitioner around October 20, 2013.

Petitioner testified that she “didn’t feel comfortable” with respondent from the beginning. She also testified that, during the time that respondent was a customer, he occasionally made comments that were “kind of like a red flag” [681]*681for petitioner, including that he wanted to be her boyfriend.1 She did not respond to the comments.

Petitioner went out of town and returned on November 8, 2013. On that day, as petitioner approached her workplace, she saw respondent looking into the building through a window. That conduct “creeped [her] out,” and she decided not to return to work at the boutique. When she explained her concern to her employer, he allowed her to borrow her work cell phone while she looked for other work. That cell phone used the phone number through which respondent had made his appointments with petitioner at the boutique, and the phone displayed his name when he called.

Petitioner did not see respondent after November 8. But a few days later, respondent sent a series of text and voicemail messages “that were really weird” to the work cell phone that petitioner was continuing to use. Petitioner did not respond to any of the messages. Petitioner also learned that respondent had posted a note on the door of her former workplace, which listed petitioner’s name and work cell phone number as well as a “new address” and the message “come join me at new place.” The “new address” was not petitioner’s address, but it belonged to a woman with a similar name. Petitioner implied that the note was disturbing because she did not know how respondent had been able to learn her full name, although her full name was posted in an online listing for the Sinful Fashion Boutique.

On November 24, respondent left threatening voice-mail and text messages on the cell phone, suggesting that he had found petitioner’s house and that he was waiting for her outside. He gave a house address and wrote, “Nice grey house silver car and such hate to spill the beans but I found your house” and “Stressed.” In a voicemail message, respondent told petitioner that if she did not talk to him in 15 minutes it would not be “pretty”:

[682]*682“Have it your way. You know, it’s not going to be pretty I don’t think. I’m giving you one last chance, like 15 minutes or (laughs) well, you ought to be stressing hard now. I would be.”

Petitioner testified that the address respondent gave for the house was not hers, it was the address posted on the “new address” note. Petitioner was out of town when she received the message, but she called the police because she was worried about the safety of any people inside the house. Petitioner also feared for her own personal safety because respondent was apparently watching a home that he believed to be hers. The police suggested that petitioner seek the SPO.

In the stalking complaint, which the Beaverton Police Department helped petitioner create, the unwanted contacts are described as follows:

“Respondent leaves unwanted and concerning voicemails and text messages for petitioner that cause her fear. Respondent found woman with same name and went to her residence believing it was petitioner’s.”

At the hearing, respondent argued that the messages left on petitioner’s phone could not be used to support the SPO because they do not meet the standard of “direct and unequivocal threats to her physical safety,” which Rangel requires before speech-based contacts can support an SPO. Respondent also argued that the messages should be understood, in the context of petitioner’s line of work,2 as simply “a threat to expose her for what she was doing because [respondent] was under the mistaken impression that she had some nice suburban life” and wanted “to expose how she made her living to her family.”

II. ANALYSIS

Under ORS 163.738(2)(a)(B), a court may enter a stalking order if the 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 [683]*683person 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.”

Thus, as the Supreme Court has emphasized, to obtain an SPO, a petitioner must establish that—on at least two occasions—the respondent contacted the petitioner while “subjectively *** aware of a substantial and unjustifiable risk” that the contact was “unwanted by the recipient, and then consciously and unreasonably disregard [ed] that risk.” Delgado, 334 Or at 133. Moreover, to establish the requisite mental state, the petitioner must present some evidence that, at the time the contacts were made, the respondent “knew or should have known” that they were unwanted. Travis v. Strubel, 238 Or App 254, 257, 242 P3d 690 (2010).

When a party seeking a protective order relies on contacts that are speech based, Article I, section 8, of the Oregon Constitution imposes an additional requirement. In Rangel,

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Cite This Page — Counsel Stack

Bluebook (online)
374 P.3d 941, 277 Or. App. 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-mcginnis-orctapp-2016.