Miller v. Hoefer

344 P.3d 121, 269 Or. App. 218
CourtCourt of Appeals of Oregon
DecidedFebruary 19, 2015
DocketCV13020176; A154043
StatusPublished
Cited by18 cases

This text of 344 P.3d 121 (Miller v. Hoefer) 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
Miller v. Hoefer, 344 P.3d 121, 269 Or. App. 218 (Or. Ct. App. 2015).

Opinion

NAKAMOTO, J.

Respondent appeals a judgment imposing a permanent stalking protective order (SPO) against him under ORS 30.866. Respondent contends, as he did before the trial court, that there was insufficient evidence to support entry of the SPO. We agree and, therefore, reverse.

The trial court ruled:

“[B]y a preponderance of the evidence the bare minimum to sustain the stalking order has been proven. There is contact, repeated and unwanted contact, that * * * is, in part, words, * * * but it is not just a words case.
“I’m finding that there is repeated and unwanted contact that an objectively reasonable person, under the totality of the circumstances would be alarmed by, and that [respondent] knew was unwanted and represents a credible threat ***.”

The court made no additional findings.

We review the facts for any evidence and the legal conclusions based on those facts for legal error. Travis v. Strubel, 238 Or App 254, 256, 242 P3d 690 (2010).1 We presume that, absent express findings, the trial court implicitly found disputed facts consistently with the outcome. Id. at 257 (citing Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968)). With that in mind, we turn to respondent’s contacts with petitioner.

Petitioner and respondent dated for several months until petitioner ended the relationship in January 2013. During the latter part of that month, respondent returned a fire pit that belonged to petitioner, placing it in her backyard. Around the same time, respondent set up a fake Facebook profile under the name Shauna Blaze and, posing as Blaze, began a correspondence with petitioner’s male friend, Drennan, that lasted for several weeks. On February 2, 2013, respondent returned two other items belonging to petitioner, placing them on her front porch at around 7:30 p.m.

[220]*220At approximately 1:30 a.m. on the morning of February 3, respondent confronted petitioner at a nightclub. Respondent had learned that petitioner was at the club from Drennan, who had invited “Blaze” to join him and his friends there. After arriving at the club, respondent approached petitioner, called her a “whore” several times and stated, “I’m glad that I found out that you are a whore so I can move on with the rest of my life.” Petitioner asked a bartender to get security. A security guard arrived and asked respondent to move away from petitioner. As petitioner was leaving the club, respondent followed behind, “saying things trying to cause a disturbance.”

Later that morning, respondent entered petitioner’s backyard and took the fire pit that he had previously returned. He also took the other items that he had returned to petitioner’s front porch the day before.

Between 3:00 a.m. and 1:00 p.m. that day, respondent sent five e-mails to another friend of petitioner, Dodd, in which respondent asserted, among other things, that petitioner had been lying to and using him, “stepping out” on him, and that she was a “downtown tramp” who did not deserve friends such as Dodd. Respondent also told Dodd that “ [t] his is so sad as [petitioner’s] two children are so sweet” and that he “hope[d] the best for [petitioner’s children] as they are innocent children and great kids at that.” In his final e-mail to Dodd that day, sent at 12:15 p.m., respondent stated, “[s]orry for emailing you my drama, was just very hurt not rational thing to do.”

That evening, petitioner noticed that the fire pit and other items that respondent had taken from petitioner’s home the night before had been returned and were “sitting at the very end of my driveway, basically almost on the edge of the street.” The following day, respondent again wrote to Dodd, stating, “it won’t be anytime soon for this pain to stop but at least the healing process can start now[,]” and asking Dodd to “give [petitioner’s children] a hug for me please (not mentioning my name of course).”

Several days later, on February 7, petitioner filed an SPO petition in which she recounted the above facts and stated that respondent’s conduct at the nightclub was [221]*221“threatening.” Petitioner indicated that the unwanted contact was alarming or coercive, “because of the planning and depths that were taken in order to know what I was doing[,] ” and that “the behavior and manner in which [respondent] approached” her and followed her out of the club made her afraid for her personal safety. Petitioner indicated that those contacts did not include any threat that made her afraid that serious personal violence or physical harm would happen to her very soon.

On February 9, respondent sent a final e-mail to Dodd. In that message, respondent stated that he was “torn to reach out [to petitioner] and apologize” and asked Dodd whether he should or not. Respondent stated, “I said a lot in my drunk state and many of the words were just to hurt her back and that helps no one.” Respondent told Dodd that he was “hoping you can help give me some closure so I can quit spending time on this.”

Around the same time, Drennan’s ex-girlfriend, Kauffman, informed petitioner that respondent had e-mailed her several times the morning of February 3 — that is, later in the morning of the nightclub confrontation and at the same time that respondent was e-mailing Dodd. In his e-mails to Kauffman, respondent said that he had information that Drennan had cheated on Kauffman. Unaware that respondent and petitioner had dated, Kauffman briefly corresponded with respondent. Respondent asked Kauffmann where petitioner had been on New Year’s Eve. After speaking with petitioner, however, Kauffman blocked respondent from contacting her.

Shortly thereafter, respondent e-mailed Kauffman using the alias “Ally Pierce.” As Pierce, respondent again accused Drennan of cheating on Kauffman and again attempted to discover petitioner’s whereabouts on New Year’s Eve. Kauffman became suspicious and asked “Pierce” not to contact her anymore.

At a February 11, 2013, ex parte hearing regarding her petition, petitioner informed the court that, after the confrontation at the nightclub, respondent had continued to contact her friends “to find out what I am doing or even like what [I] was doing, * * * that kind of thing.” Petitioner also [222]*222noted that respondent had been “saying stuff to friends of mine about how my kids are doing.” The court entered a temporary SPO against respondent.

At the March 13, 2013, contested hearing regarding entry of a permanent SPO, petitioner recited the facts in her initial petition and added that respondent’s correspondence with Kauffman “makes me fearful of why do you care what I was doing.” Petitioner also stated that, within the 48 hours preceding the hearing, she had learned of respondent’s “previous felony history of violence against other women” — which she said included “felony convictions” — and “spoke to the victim’s child of this incident that occurred in ’05 and realize [d] the kind of person I was dealing with and my fear of him.” Petitioner did not provide additional information regarding respondent’s history with other women.

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Cite This Page — Counsel Stack

Bluebook (online)
344 P.3d 121, 269 Or. App. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-hoefer-orctapp-2015.