Roth v. King

356 P.3d 153, 272 Or. App. 381
CourtCourt of Appeals of Oregon
DecidedJuly 22, 2015
Docket13C11488; A155338
StatusPublished
Cited by3 cases

This text of 356 P.3d 153 (Roth v. King) 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
Roth v. King, 356 P.3d 153, 272 Or. App. 381 (Or. Ct. App. 2015).

Opinion

DUNCAN, P. J.

Respondent appeals the stalking protective order (SPO) entered against him, asserting that it was not supported by sufficient evidence. For the reasons explained below, we agree and, therefore, reverse.

We have the discretion to conduct de novo review in SPO cases, but respondent has not identified, and we do not perceive, any reason to do so in this case. See ORS 19.415(3) (de novo review is discretionary in equitable actions); ORAP 5.40(8)(c) (de novo review is appropriate only in “exceptional cases”). Accordingly, we are bound by the trial court’s findings if they are supported by “any evidence,” and we review its legal conclusions for errors of law. Noriega v. Parsons, 253 Or App 768, 770, 296 P3d 522 (2012) (internal quotation marks omitted).

Stated in accordance with that standard, the relevant facts are as follows. At the time petitioner filed her petition for an SPO, on August 13, 2013, she and respondent had known each other for approximately five years. They were coworkers and attended the same church. Over the years, respondent flirted with petitioner, and she responded either by ignoring him or telling him to stop. When she told him to stop, he would stop for a short period of time, but then he would resume flirting and making sexual advances. Petitioner repeatedly rejected respondent’s advances. At two or more points, petitioner told respondent that she did not want him to communicate with her and communications ceased, but later resumed.

The parties were in communication for at least four months before petitioner filed her SPO petition. During those months, petitioner moved into a new house and respondent helped her move. Petitioner also gave respondent a key to her house so that he could let her dogs out while she was on a trip.

But the parties’ relationship turned again after respondent sent petitioner numerous text messages expressing his interest in her. According to petitioner, in some of those messages, respondent stated that he wanted to “[lie] naked with [petitioner]” and other “random weird stuff.” On [383]*383August 8 or 9, 2013, petitioner sent respondent several text messages telling him to stop contacting her. She then asked him to return her house key. In response, respondent left petitioner multiple voice messages; in one, he stated that he was at her house and was not going to leave until petitioner returned home, and, in another, he stated that he needed to return to petitioner’s house to shut her water off.1 Those messages alarmed petitioner, and she went to a police station to report respondent’s conduct.

At the police station, petitioner spoke with an officer, who reviewed the parties’ text messages from that day. The officer noted that petitioner had instructed respondent not to contact her anymore, but that respondent had continued to call and send petitioner messages. The officer also noted that respondent’s message that he was waiting at petitioner’s house was “in reference to returning [petitioner’s] house key.”

Petitioner told the officer that, although respondent “ha[d] not shown indications of being a violent person,” she was “becoming very afraid due to [his] continued and escalating pursuit of her.” Petitioner asked the officer to tell respondent not to contact her by phone and to issue respondent a trespass warning to prohibit him from coming to her home.

The officer drove petitioner to her home. Respondent was not there, but he had left her house key under her doormat. He also had left several pots of flowers on her front porch, along with scented soap bars and decorative signs that, according to the officer, “hint[ed]” at his “dreams of dating [petitioner].” Petitioner was very upset by respondent’s actions.

The officer called respondent, who said that he did not have any ill intentions toward petitioner and that they were friends. The officer told respondent that his actions toward petitioner were unwanted and had caused her to be afraid. He also told respondent that he was already subject to arrest for telephonic harassment for his past conduct [384]*384toward petitioner and that, if he made any future efforts to contact petitioner, the officer would arrest him immediately.

On August 12, 2013, petitioner saw respondent at church. According to petitioner, respondent approached her, but she had another person stand between them. Respondent and the other person greeted each other, but respondent did not communicate with petitioner.

On August 13, 2013, respondent called petitioner, but she did not answer. He then sent her a text message asking, “Hey kiddo where you at?” The police subsequently arrested respondent for telephonic harassment and stalking, and petitioner filed the petition in this case seeking a permanent SPO against respondent.

At the SPO hearing, petitioner testified that respondent had never threatened her, nor acted violently toward her, but respondent had been "verbally” violent toward coworkers. Petitioner also testified that she began to fear imminent harm when, on August 9, respondent communicated to her that he was waiting at her house.

Respondent contended that all of his contacts with petitioner were “communicative statements” and, therefore, in order to issue an SPO, the court had to find that each statement was a threat that was “unambiguous, unequivocal and specific to the addressee” and that each convincingly expressed “that the intention of the respondent here will be carried out.” Additionally, respondent contended that, given the totality of the circumstances — including “the length of the relationship [between the parties], the fact that there had been *** off-again and on-again form of communication [,] [t]he fact that there had even been the giving of a key to this house, [and] the fact that the forms of the communication were expressions of affections” — an objectively reasonable person would not consider respondent’s statement that he was not going to leave petitioner’s home to be an unambiguous threat of imminent harm.

The trial court concluded that respondent’s contacts with petitioner were not solely communicative: “Leaving of items at her home, approaching her and attempting to make contact are acts. It doesn’t have to be physical touching to [385]*385be more than communicative.” The trial court also concluded that it was objectively reasonable for petitioner to be “afraid or distressed by that behavior.” Regarding respondent’s communications with petitioner, the trial court concluded that, based on the context of the parties’ relationship and respondent’s behavior, respondent’s statement that he was not going to leave petitioner’s house until she returned, and his statement that “I want to lie naked with you,” were threats. The trial court issued a permanent SPO against respondent, and this appeal followed.

On appeal, respondent argues that there was insufficient evidence to justify issuance of the SPO. Specifically, he argues (1) that the majority of the contacts in this case were text messages and telephone calls, and none of those communications amounted to threats, and (2) that his visit to petitioner’s home did not constitute an unwanted contact because it was pursuant to petitioner’s request that respondent return her house key.

The requirements for the issuance of an SPO are set forth in ORS 30.866, which provides, in part:

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Cite This Page — Counsel Stack

Bluebook (online)
356 P.3d 153, 272 Or. App. 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roth-v-king-orctapp-2015.