K. H. v. Mitchell

27 P.3d 130, 174 Or. App. 262, 2001 Ore. App. LEXIS 635

Opinions

KISTLER, J.

Respondent appeals from a permanent stalking protective order restraining him from contacting petitioner.¹ Although respondent’s actions warranted the issuance of a stalking protective order, the scope of the order that the court entered is too broad. On de novo review, we modify the order and affirm it as modified.

In 1999, petitioner was a senior in high school. Her parents worked, and she would typically be alone at home until she left for school. On March 1, 1999, the telephone began to ring immediately after petitioner’s mother left for work. The first time petitioner answered, the caller hung up. The phone rang again. When she answered, a man disguising his voice said, “I want to eat your pussy.” The phone rang a third time. This time, the caller said, “I want to fuck you.”² Petitioner reported the calls to the police. The police report states that petitioner “expressed terror at the content of the calls and was at near hysteria.” A telephone trap was placed on petitioner’s phone to trace future calls.

On May 12, 1999, petitioner received three calls in rapid succession. Each time he called, the caller said, “I want some of that little pussy, I’ll be right over.” He added on at least one of the calls, “[S]o, what’s your answer.” Petitioner left the telephone off the hook and called the police on her cellular phone. She was, in the reporting officer’s words, “hysterical.”

The police traced the May 12 calls to respondent’s house. They spoke to respondent, who initially denied any knowledge of the calls. After being told that a trap had been placed on petitioner’s telephone and that the calls had been traced to his home, respondent admitted making the calls on May 12 as well as the earlier calls.

On May 12,1999, petitioner filled out and signed an Oregon Uniform Stalking Complaint.³ On the same page, beneath the complaint, is an Oregon Uniform Stalking Citation. The citation names respondent and directs him to appear in court on May 17,1999. The citation recites that the officer who issued the citation has probable cause to believe that respondent engaged in conduct prohibited by ORS 163.735 and that the officer has served respondent with a copy of the citation.

Following a hearing on May 17,1999, the trial court entered a temporary stalking protective order against respondent and scheduled further proceedings on June 8, 1999, to determine whether a permanent stalking protective order should be entered. See ORS 163.738(2)(a)(A). Based on the evidence brought out at the June 8, 1999, hearing, the trial court entered a permanent stalking order directing that respondent have no contact with petitioner.

On appeal, respondent raises three issues. He argues initially that the case should have been dismissed because no complaint was filed in the trial court. Respondent’s first argument is based on ORCP 3⁴ and assumes that petitioner could initiate a hearing to obtain a stalking protective order only by filing a complaint with the clerk of the court. Because petitioner did not do that, respondent concludes that no action was properly before the trial court.

Respondent’s first argument is based on the assumption that ORCP 3 applies to this proceeding. ORCP 1 A, however, provides that the rules of civil procedure do not apply “where a different procedure is specified by statute or rule.” Here, ORS 163.735 and ORS 163.744 provide a different procedure for initiating actions to obtain stalking protective orders.⁵ ORS 163.744 provides that “[a] person may initiate an action seeking a citation under ORS 163.735 by presenting a complaint [the form of which is specified in ORS 163.744(2)] to a law enforcement officer.” ORS 163.744(1). ORS 163.735, in turn, provides that, if the officer has probable cause to believe that the respondent has engaged in prohibited conduct, the officer shall issue a citation to the respondent. The citation initiates a court proceeding to determine whether a stalking protective order should be issued. Petitioner followed that process here. No more was required.

Respondent raises a second issue. He argues that “[t]here was no threat” that could give rise to a stalking protective order. In his view, the evidence shows that he merely stated his desires over the phone and asked whether petitioner would agree to sexual activity. He appears to take the position that, in the absence of an explicit threat of forcible compulsion, the trial court could not issue a stalking protective order. We agree with the trial court that respondent’s statements warranted issuing a stalking protective order.

As a statutory matter, a court may issue a stalking protective order when a person intentionally, knowingly, or recklessly engages in “repeated and unwanted contact” that alarms another person. ORS 163.738(2)(a)(B)(i). The resulting alarm must be objectively reasonable. ORS 163.738(2)(a)(B)(ii). Finally, the contact must cause the person to have a reasonable apprehension regarding his or her personal safety. ORS 163.738(2)(B)(iii). When a contact involves speech, the court has interpreted the stalking statute narrowly to avoid overbreadth concerns. See State v. Rangel, 328 Or 294, 301-03, 977 P2d 379 (1999). The court has required proof of 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 actsId. at 303.⁶

On appeal, respondent does not dispute that the acts that he mentioned over the telephone would, if not consensual, constitute the crimes of sodomy and rape. He argues instead that he was merely asking petitioner whether she would consent to engage in those acts. We do not agree that respondent’s statements had that benign connotation. Respondent made anonymous calls in which he stated, in unmistakable terms, what he wanted and that he was coming right over. Respondent’s statements were not a request for consent. They instead conveyed a threat of a serious personal assault. His statements reasonably “instill[ed] in [petitioner] a fear of imminent and serious personal violence[.]” Rangel, 328 Or at 303.⁷ They were unequivocal and objectively likely to be followed by unlawful acts.⁸ See id.

Respondent argues finally that the stalking protective order that the court issued was too broad. Respondent and petitioner are neighbors. There was evidence that, before the calls started, respondent would stand on his deck and stare at petitioner in a way that had made her “real nervous.” As the trial court recognized, there is a need to protect petitioner from these sorts of visual contacts as well as from the calls that petitioner had been making. As the court also recognized, however, an absolute prohibition against respondent’s coming into petitioner’s visual presence would pose practical difficulties. Compliance with that condition would be difficult to achieve unless respondent moved out of his home.

Although aware of those competing concerns, the court entered a permanent stalking protective order indefinitely preventing respondent from having any contact with petitioner and defined the term “contact” broadly.⁹ ORS 163.738(2)(b) provides that, if the court finds that a person has violated the stalking statute, it “shall specify the conduct from which the respondent is to refrain, which may include all contact listed in ORS 163.730 and any attempt to make contact listed in ORS 163.730.” ORS 163.738(2)(b) (emphasis added). The legislature’s use of the word “shall” requires a court to enter a stalking protective order if it finds a violation of the statute, but its use of the word “may” makes clear that the scope of the order remains discretionary. See Shook v. Ackert, 152 Or App 224, 230, 952 P2d 1044 (1998) (recognizing that discretion). In exercising its discretion, a court should weigh the need to protect the victim against the restrictions placed on the respondent. Cf. Martin v. Board of Parole, 327 Or 147, 160 n 5, 957 P2d 1210 (1998).¹⁰ On de novo review, we modify the reach of the court’s order. See PGE v. Duncan, Weinberg, Miller & Pembroke, P.C., 162 Or App 265, 986 P2d 35 (1999) (modifying the scope of a permanent injunction that swept too broadly).

We share the trial court’s concern that its definition of contact, if applied with no qualification, would effectively force respondent to choose between moving from his home and being in violation of the stalking protective order. This record does not warrant that broad a remedy, and we conclude that the conflict can be resolved by limiting the definition of contact. We accordingly modify the order to prevent respondent from (1) intentionally communicating by any means with petitioner, either directly or through a third person; (2) intentionally initiating visual contact with petitioner; (3) intentionally following petitioner; (4) going onto petitioner’s property, her place of work, or her school; and (5) waiting outside of her place of work or school. If this order proves insufficient to protect petitioner, petitioner may ask the court to modify it.

Order modified to prohibit respondent from contacting petitioner by intentionally communicating by any means with petitioner, either directly or through a third person, intentionally initiating visual contact with petitioner, intentionally following petitioner, going onto petitioner’s property, her place of work, or her school, and waiting outside of her place of work or school. Order otherwise affirmed.

Footnotes

1

We explained in Hanzo v. deParrie, 152 Or App 525, 527 n 1, 953 P2d 1130 (1998), rev den 328 Or 418 (1999):

“In civil stalking proceedings, the party applying for relief is denominated the ‘petitioner’ and the party against whom the relief is sought is the ‘respondent.’ Obviously, that nomenclature can be confusing in an appeal like this, where the ‘respondent’ below is the appellant and the ‘petitioner’ below is the respondent. Nevertheless, for consistency and in accordance with our own rules governing designation of parties in briefs, ORAP 5.15, all references to ‘respondent’ are to deParrie and all references to ‘petitioner’ are to Hanzo.”

Similarly, in this opinion, all references to respondent are to Mitchell and all references to petitioner are to K. H.

2

Several weeks earlier, petitioner had received three or four similar calls. The calls occurred at approximately the same time of day. As petitioner testified, “the calls happen the second my mom leaves for work.” “[W]hen the first call comes is right when she walks out the door and her car’s gone and that’s when the call comes.”

3

In his brief, respondent asserts that no uniform stalking complaint was ever filled out or filed with the court. The trial court file, however, contains a uniform stalking complaint dated May 12,1999, and signed by petitioner. The date stamp shows that the complaint was filed in the Douglas County court on May 13,1999.

4

ORCP 3 provides: "Other than for purposes of statutes of limitations, an action shall be commenced by filing a complaint with the clerk of the court.”

5

ORS 163.735 and ORS 163.744 establish a process by which an officer, on receiving a complaint, may issue a citation that will result in the issuance of a stalking protective order. ORS 30.866 also authorizes a petitioner to file a petition for a stalking protective order in circuit court. In this case, petitioner followed the procedure set out in ORS 163.735 and ORS 163.744.

6

The court explained that “[t]hose characteristics of a threat ‘exclud[e] the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee.’ ” Rangel, 328 Or at 303 (quoting State v. Moyle, 299 Or 691, 705, 705 P2d 740 (1985)).

7

The dissent reasons that the first set of calls in March cannot be considered an “unequivocal threat to go to [petitioner’s] house within a few minutes of the calls and sexually assault her.” 174 Or App at 272 (Armstrong, J., dissenting). The dissent raises the bar too high. Rangel does not require that a defendant unequivocally threaten to carry out his or her assaultive acts within a few minutes. Rather, it requires only that the threat be “objectively likely to be followed by unlawful acts.” Rangel, 328 Or at 303. The dissent also concludes that the second set of calls in May was not threatening because, in the one of those calls, respondent said, “[S]o what’s your answer.” If a gunman told his victim, “I want your money,” and later added, “So, what’s your answer,” the addition of the latter phrase would not turn a robbery into a consensual commercial transaction. The same is true here. Respondent’s addition of the phrase, “So, what’s your answer,” in one of a series of three calls did not convert his threat of physical assault into a request for consent.

8

Respondent does not argue that his statements were equivocal or that they were not objectively likely to be followed by unlawful acts. We note that, on May 12, he expressly stated that the threatened harm was likely to follow. To be sure, when he called earlier in March, he did not say that he was coming right over. But the timing of the call made clear that he was close enough to know when petitioner’s mother left the house. Petitioner was reasonably concerned that the caller’s proximity made the threatened harm imminent and objectively likely to follow.

9

The order defined “contact” as:

“Coming into the visual or physical presence of the petitioner or the person to be protected if other than the petitioner.

“Following the petitioner or the person to be protected if other than the petitioner.

“Waiting outside the home, property, place of work or school of the petitioner or of the person to be protected if other than the petitioner or of a member of the petitioner’s, or other person’s immediate family or household.

“Sending or making written communications in any form to the petitioner or the person to be protected if other than the petitioner.

“Speaking by any means with the petitioner or the person to be protected if other than the petitioner.

“Communicating through a third person with the petitioner or the person to be protected if other than the petitioner.

“Committing a crime against the petitioner or the person to be protected if other than the petitioner.

“Communicating with a third person who has some relationship to the petitioner or the person to be protected if other than the petitioner with the intent of affecting the third person’s relationship with the petitioner or the other person.

“Communicating with business or government entities with the intent of affecting some right or interest of the petitioner or the person to be protected if other than the petitioner.

“Damaging the home, property, place of work or school of the petitioner or the person to be protected if other than the petitioner.

“Delivering directly or through a third person any object to the home, property, place of work or school of the petitioner or the person to be protected if other than the petitioner.”

10

In Martin, the respondent had abused the victim “sexually, physically, and psychologically.” 327 Or at 149. He “beat the victim thousands of time; he forced her to perform sexual acts with him and with another woman.” Id. The Parole Board effectively excluded the respondent from entering the county in which the victim lived. The court noted “that a ‘need to protect the victim’ rationale is not a panacea; exclusion orders having a scope like that in the present case need greater justification than the fact that a victim exists.” Id. at 160 n 5. In Martin, however, the court found that the harm that the victim had suffered justified the broad restriction that the Parole Board placed on the respondent. See id.