May v. Woods

430 P.3d 193, 294 Or. App. 135
CourtCourt of Appeals of Oregon
DecidedSeptember 19, 2018
DocketA164335
StatusPublished
Cited by2 cases

This text of 430 P.3d 193 (May v. Woods) 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
May v. Woods, 430 P.3d 193, 294 Or. App. 135 (Or. Ct. App. 2018).

Opinion

DeVORE, J.

*136Respondent challenges the legal sufficiency of the evidence offered to support the trial court's decision to continue a restraining order entered against him pursuant to the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.732. Respondent argues that (1) because his statement in a telephone call should be understood only as an expression of regret, it was not evidence of abuse, and (2) because he was jailed on the day the petition was filed, petitioner faced neither an imminent danger nor credible threat of further abuse. We conclude that a factfinder could find respondent's statement, seen in light of the parties' circumstances, placed petitioner in fear of imminent serious bodily injury. Respondent's latter argument was not preserved. We affirm.

Respondent does not ask that we undertake review de novo so as to decide the facts anew on the record, and we would decline to do so because this is not an exceptional case. See ORAP 5.40(8) (court will exercise its discretion to try the case anew on the record only in exceptional cases). If supported by sufficient evidence, we must accept the trial court's express findings. We presume that the trial court's implicit factual findings were consistent with its order in petitioner's favor. Lefebvre v. Lefebvre , 165 Or. App. 297, 302 n. 2, 996 P.2d 518 (2000). We are bound by implicit findings of the trial court if evidence in the record supports them. Hannemann v. Anderson , 251 Or. App. 207, 208, 283 P.3d 386 (2012). That standard of review constrains our view of the material facts and explains why we see them differently than does this respondent.

Petitioner and respondent married in 2006 and had four children. They experienced a "very rocky relationship." In 2007, respondent was convicted of a charge involving domestic abuse against petitioner. Petitioner testified to respondent being "unstable" and "an ongoing violent person." In 2010, according to petitioner, respondent did not want her to go out on Halloween and, in an argument, threw her down on the floor. In 2011, according to petitioner's mother, respondent called her at work, while very stressed out, and admitted to pushing petitioner into, or pinning petitioner *137against, the wall. Petitioner said that respondent threatened to harm himself, and, in 2012, she saved him after he hanged himself from the ceiling.

The parties separated in February 2015. Petitioner testified that respondent would not give up on getting back together. As evidence, she offered Facebook text messages beginning in 2015, including a suicide note that he wrote, photographed, and sent to petitioner's sister.1 In one message, respondent wrote to petitioner, "You and any dude have another thing coming * * *. Them I'll just fuck everyone up you bring around watch." Seemingly in reference to another man, respondent wrote, "I'll bring the firey rains of hell down upon that mother fucker." In July 2015, respondent wrote, "Please open up and talk to me please. I'm not going to hurt you any more physical [sic ] verbally or otherwise. I love and miss you so much." Sometime in 2016, respondent threatened to harm himself if petitioner did not agree to resume their relationship.

On January 16, 2017, within the 180 days preceding the petition for a restraining order, the parties had an argument at a time when petitioner expected respondent to return *195their children. He told her to call him. In that call, she testified, "He said he should have gotten rid of me when he had the chance." According to petitioner, respondent said he was taking the kids out of state and changing their names. Petitioner understood respondent's statement as a present threat because "[h]e's made threats like that before, where he has farmland, and he has people with pigs who can eat my whole body, no one will *** ever be able to find me."2

As a consequence, petitioner said, "I am scared. I am fearful of him." She said "it's been a long history." As an example, she recalled that she had left respondent in the middle of the night because she was afraid to get out of the relationship. Most recently, she testified, she had been more *138fearful of retaliation because she had reported respondent's location to police so that they could serve an arrest warrant on an unrelated charge. The parties had been separated for about two years by the time of the hearing.

In its findings, the trial court observed that this is a "unique situation" insofar as most of the testimony is about conduct "long ago." Nevertheless, the court noted, there was a conviction for domestic violence and "domestic violence has been going on through the years." The court recognized that the central issue was whether the statement made in the January 2017 telephone call was a threat. The court considered respondent's Facebook messages, referring to them as "about the vilest, most vile, text messages that I think I have ever read in all the time I've been here." The court found that respondent had an obsession with petitioner and it was "clearly" of such a nature, the court said, that "it scares me."

Given the history of violence and the sequence of messages, the court concluded that the January statement was sufficient conduct to constitute abuse. The court entered an order that continued the initial order, which had found that petitioner had been abused within the last 180 days, that respondent presented a credible threat to the safety of petitioner, and that there was imminent danger of further abuse. Among other things, the order restrained respondent from intimidating, molesting, interfering with or menacing petitioner.

On appeal, respondent assigns two errors. First, he argues that the single telephone call could not provide sufficient evidence to constitute "abuse" within the meaning of ORS 107.705 and ORS 107.718. Specifically, he contends that none of the accounts of physical abuse occurred within 180 days of the petition and that the single statement in the January 2017 telephone call, which he denied, was merely an expression of regret that he had not done something in the past and could not be sufficient evidence of a present threat.

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Cite This Page — Counsel Stack

Bluebook (online)
430 P.3d 193, 294 Or. App. 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-woods-orctapp-2018.