Greenwade v. Tepper

396 P.3d 990, 285 Or. App. 646
CourtCourt of Appeals of Oregon
DecidedMay 17, 2017
Docket16SK00020; A161624
StatusPublished
Cited by3 cases

This text of 396 P.3d 990 (Greenwade v. Tepper) 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
Greenwade v. Tepper, 396 P.3d 990, 285 Or. App. 646 (Or. Ct. App. 2017).

Opinion

FLYNN, J. pro tempore

Respondent appeals from the trial court’s entry of a stalking protective order (SPO) pursuant to ORS 30.866(1).1 Respondent argues that the trial court erred when it granted the order because the evidence does not permit a finding that respondent engaged in “repeated and unwanted contact” that meets the requirements for issuance of an SPO. We agree with respondent and, accordingly, reverse.

ORS 30.866(1) provides that a person may obtain an SPO against another person if:

“(a) 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;
“(b) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and
“(c) 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.”

As we have recently emphasized, the statutory requirement of “repeated” contact means that there must be “two or more” qualifying contacts. Bachmann v. Maudlin, 283 Or App 548, 549, 389 P3d 413 (2017) (internal quotation marks omitted). Each of those contacts, “‘individually, must give rise to subjective and objectively reasonable alarm or coercion.’” Id. (quoting Reitz v. Erazo, 248 Or App 700, 706, 274 P3d 214 (2012)). Moreover, the unwanted contacts cumulatively must “give rise to subjective apprehension regarding the petitioner’s personal safety or the personal safety of a member of the petitioner’s immediate family or household, and that apprehension must be objectively reasonable.” Id. (internal quotation marks omitted).

In addition, in order to satisfy the speech protections of Article I, section 8, of the Oregon Constitution, an SPO may not be based on expressive contacts—those that [648]*648involve speech—unless the speech is a threat that “instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999).

The trial court issued the SPO against respondent in this case based on two incidents. On appeal, respondent does not dispute that the incidents meet the definition of “contact,”2 but she contends that neither contact qualifies as a basis for issuing the SPO.

Although we have discretion to conduct de novo review in SPO cases, respondent does not request that we do so, and we do not perceive any reason to review this case de novo. See ORS 19.415(3) (de novo review is discretionary in equitable actions); ORAP 5.40(8) (“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.”). Thus, we review the trial court’s legal conclusions for errors of law and are bound by the court’s findings if “any evidence” supports them. Roth v. King, 272 Or App 381, 382, 356 P3d 153 (2015). In addition, because the trial court granted the SPO, “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 describe the facts in accordance with that standard.

Respondent and petitioner attended the same high school. They were friends at one time but the friendship deteriorated in their junior year after respondent’s boyfriend moved in with petitioner’s family. Petitioner severed their friendship, respondent became angry, and events followed that led to petitioner filing for an SPO. The first contact that the trial court relied upon occurred during the fall of the following school year at a high school football game. Petitioner was watching the game when respondent and a group of respondent’s friends came to stand in front of the area where petitioner was standing. Petitioner overheard [649]*649respondent say, “Wouldn’t it be funny if I maced her?” Petitioner interpreted the statement to be directed to her.

The second incident occurred over winter break of the same year when, at the direction of respondent, another student put sardines on petitioner’s car.3 Petitioner sought an SPO, and, after a hearing, the trial court issued a permanent SPO.

On appeal, respondent argues that neither contact qualifies as a basis for issuing an SPO under ORS 30.866(1). As to the first incident, respondent argues that the incident involved speech and does not satisfy the heightened standard necessary to be a qualifying contact, under Rangel, 328 Or at 303. Respondent also argues that the second incident is not a qualifying contact because it did not give rise to subjectively or objectively reasonable alarm or coercion. We agree.

In the incident at the football game, the aspect that petitioner described as causing alarm is respondent’s statement to her companions, “Wouldn’t it be funny if I maced her?” Thus, to qualify as a contact that supports the SPO, that expressive encounter must satisfy the Rangel test. It does not. As noted above, that test requires an “unequivocal” threat that instills “a fear of imminent and serious personal violence” and that is “objectively likely to be followed by unlawful acts.” Id. The threat must be “so unambiguous, unequivocal, and specific to the addressee that it convincingly expresses to the addressee the intention that it will be carried out ” Id. at 306 (emphasis in original). We applied the Rangel test in Langford v. Langford, 262 Or App 409, 412, 324 P3d 623 (2014), in which we held that the respondent’s statement to the petitioner, “I wish you were dead,” was not a qualifying contact under ORS 30.866. We concluded that the statement was “more akin to an impotent expression of anger or frustration” than to an unequivocal communication that instills a fear of “imminent and serious personal violence from the speaker.” Id. at 414 (internal quotation marks and brackets omitted).

[650]*650Respondent’s statement in petitioner’s presence is even more equivocal and comes no closer to satisfying the Rangel test than did the statement in Langford. Even if petitioner correctly assumed that she was the “her” to whom respondent referred, respondent’s statement to her companions neither unambiguously nor unequivocally expressed that respondent intended to spray mace at petitioner.

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
396 P.3d 990, 285 Or. App. 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenwade-v-tepper-orctapp-2017.