T. M. E. v. Strope

156

Argued and submitted June 9, reversed October 7, 2020

T. M. E.,

Petitioner-Respondent,

v.

Jennifer STROPE,

Respondent-Appellant.

Yamhill County Circuit Court

19SK02177; A172290

476 P3d 972

Respondent appeals a judgment and permanent stalking protective order

(SPO) prohibiting contact with petitioner. Respondent leased church space from

petitioner. After petitioner terminated their lease agreement and asked respon-

dent to vacate the church, two incidents ensued giving rise to the petition, one of

which involved respondent allegedly poking her finger in petitioner’s chest. On

appeal, respondent argues that the evidence presented was insufficient to estab-

lish, among other things, the existence of repeated unwanted contacts. Held: The

trial court erred in issuing the SPO. Even assuming the finger-poking contact

was unwanted and that petitioner was subjectively alarmed by that contact,

there was insufficient evidence for the trial court to have concluded that peti-

tioner’s alarm was objectively reasonable. Because that contact did not qualify as

an “unwanted contact” for the purposes of the SPO, the record lacked sufficient

evidence of repeated unwanted contacts, even assuming that the second contact

could have qualified. See ORS 163.738(2)(a)(B) (requiring repeated unwanted

contacts to issue an SPO).

Reversed.

John T. Mercer, Judge pro tempore.

Jason E. Thompson argued the cause for appellant. Also

on the brief was Thompson Law, LLC.

No appearance for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and

Mooney, Judge.

MOONEY, J.

Reversed.

Cite as 307 Or App 156 (2020) 157

MOONEY, J.

Petitioner obtained a permanent stalking protec-

tive order (SPO) against respondent. Respondent appeals

the SPO judgment, challenging the sufficiency of the evi-

dence. We agree that the record does not support the issu-

ance of the SPO and we, therefore, reverse.

De novo review is neither requested nor warranted.

See ORAP 5.40(8)(c). We review the factual findings for any

supporting evidence and the legal conclusions based on

those facts for legal error. Miller v. Hoefer, 269 Or App 218,

219, 344 P3d 121 (2015). We presume that the trial court

resolved any disputed facts consistent with the outcome it

reached. Id. “When the sufficiency of the evidence support-

ing an SPO is challenged on appeal, we view the evidence

and all reasonable inferences that may be drawn from it

in the light most favorable to the trial court’s disposition

and assess whether, when so viewed, the record is legally

sufficient to permit that outcome.” King v. W. T. F., 276 Or

App 533, 537, 369 P3d 1181 (2016) (internal quotation marks

omitted).

We state the pertinent facts consistent with that

standard. Petitioner is the senior pastor at a church in

Sheridan, Oregon. Respondent leased space from the church

and ran a school there. Petitioner and respondent, therefore,

stood in the relationship of landlord and tenant. It was in the

context of that relationship that a dispute arose between them

that, in turn, led to petitioner demanding that respondent no

longer use the church facilities for her school. Petitioner noti-

fied respondent that she was required to vacate the prem-

ises within 14 days. Petitioner saw respondent at the church

on August 7, 2019, still during that 14-day period, and he

asked her if she would have the school’s belongings removed

from the church by the deadline. Respondent explained that

her husband was out of town and that “they weren’t going to

be able to get their items out for quite sometime.” According

to petitioner, respondent then told him that “there was a

special place in hell for pastors like you” and blamed him

for the school’s closure while “poking” her finger in his

chest.

158 T. M. E. v. Strope

On August 21, 2019, petitioner sent a second notice

to respondent confirming that she had not vacated the

premises by the deadline and that the school was required

to vacate the church no later than September 1, 2019. That

same day, when petitioner returned to the church, respon-

dent and her father pulled into the church driveway imme-

diately after him. Respondent and her father exited their

vehicle and waited for petitioner to get out of his car. When

petitioner did so, respondent’s father said, “[W]e need to

talk,” “in a very gruff voice.” Petitioner told respondent and

her father that he would not speak to them unless they had a

“better attitude.” Respondent was “very angry” and “pushed

past” her father. She pushed petitioner with both hands and

“swung open handed,” “grazing” petitioner with her finger-

tips. She then ripped up the August 21, 2019, notice, threw

it at petitioner, and then threw “a handful of keys” at him,

which “bounced off” his face. Respondent “scream[ed]” at

petitioner using “F bombs” and other expletives to express

her belief that petitioner was “a miserable excuse for a pas-

tor.” She told petitioner to keep the items that remained in

the church. Petitioner said that he was going to call 9-1-1, at

which point respondent and her father left.

The following day, petitioner sought and obtained

a temporary SPO against respondent1 on the basis of the

August 7 and August 21 contacts. Approximately one

month later, a hearing was held to determine whether the

SPO would be dismissed or made permanent. The parties

appeared for the hearing and, after taking testimony and

considering arguments, the trial court found petitioner’s

“version of both incidents to be believable” and issued a per-

manent SPO against respondent.

Respondent appeals, arguing that there was insuffi-

cient evidence to support the permanent SPO. In particular,

she argues that there was insufficient evidence to establish

(1) the existence of two unwanted contacts and (2) the requi-

site level of alarm or coercion. As explained below, we agree

that the record is insufficient, as a matter of law, to support

the trial court’s conclusion that the first contact, on August 7,

1

Petitioner also sought a temporary SPO against respondent’s father, but

the trial court denied that petition.

Cite as 307 Or App 156 (2020) 159

was a qualifying contact for purposes of issuing the SPO.

Because the statute requires two qualifying contacts, we

thus reverse without discussing the second encounter.

Under ORS 30.866(1),

“[a] person may bring a civil action in a circuit court for

a court’s stalking protective order or for damages, or both,

against a 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 vic-

tim’s situation to have been alarmed or coerced by the con-

tact; 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.”

To summarize, as pertinent here, the petitioner must prove

at least two unwanted contacts, each contact must give rise

to subjective alarm,2 that alarm must be objectively reason-

able, and, cumulatively, the contacts must cause petitioner

objectively reasonable apprehension for the petitioner’s per-

sonal safety or that of someone in the petitioner’s family

or household. ORS 163.730(7) (“ ‘Repeated’ means two or

more times.”); C. P. v. Mittelbach, 304 Or App 569, 575, 468

P3d 496 (2020). “Alarm,” for purposes of obtaining an SPO,

means to “cause apprehension or fear resulting from the per-

ception of danger,” ORS 163.730(1); “danger,” in turn, refers

to a “threat of physical injury, not merely a threat of annoy-

ance or harassment,” Brown v. Roach, 249 Or App 579, 586,

277 P3d 628 (2012). It is petitioner’s burden to prove each

element by a preponderance of the evidence. ORS 30.866(7).

Here, even assuming that the record supports the

trial court’s implicit findings that the contact on August 7—

which included respondent poking her finger in petitioner’s

chest—was unwanted, and that petitioner was subjectively

2

There is no suggestion of coercion in this case.

160 T. M. E. v. Strope

alarmed by that contact, there is insufficient evidence from

which the trial court could conclude, given the circum-

stances, that petitioner’s alarm was objectively reasonable.

ORS 30.866(1)(b); see Greenwade v. Tepper, 285 Or App 646,

647, 396 P3d 990 (2017) (each contact “individually, must

give rise to subjective and objectively reasonable alarm”

(internal quotation marks omitted)).

Importantly, we consider “all of the circumstances

of the parties’ relationship” in evaluating the objective rea-

sonableness of petitioner’s alarm. Brown, 249 Or App at 587.

The August 7 contact occurred on church property while

respondent was still a bona fide tenant there. It is true that

petitioner, as landlord, gave notice requiring respondent

to vacate the property. But the August 7 contact occurred

during the 14-day window that petitioner had defined as

the time for respondent to remove school belongings from

church property. Respondent not only had permission to

be on church property, petitioner insisted that she use that

time frame to come to the church and remove her property.

While respondent was at the church, it was petitioner who

approached her to find out whether she would be able to meet

his deadline. We do not suggest that petitioner, simply by his

presence, invited the poke in the chest or the comment about

“pastors like you.”3 But, petitioner’s role in the encounter is

a factor that we consider in the overall analysis.

Notably, the August 7 incident occurred as the

parties’ landlord-tenant relationship was terminating, see

generally Daves v. Kohan, 282 Or App 243, 253, 385 P3d

1161 (2016), rev den, 361 Or 439 (2017) (considering par-

ties’ landlord-tenant relationship as factor in determining

whether SPO was warranted), and the record is clear that

3

Speech-based contacts do not alone qualify as “contacts” for SPO purposes

unless they “rise to the level of a threat,” that is, “the sort of communication 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.” Miller, 269 Or App at 223 (internal quotation marks omitted); see also id.

(distinguishing “the kind of hyperbole, rhetorical excesses, and impotent expres-

sions of anger or frustration that in some contexts can be privileged even if they

alarm the addressee” (internal quotation marks omitted)). Nevertheless, relevant

speech that does not meet that heightened standard may still be considered as

context when evaluating other contacts. Reitz v. Erazo, 248 Or App 700, 706, 274

P3d 214 (2012).

Cite as 307 Or App 156 (2020) 161

respondent was frustrated and upset by that unilateral ter-

mination. Her extreme reaction to petitioner’s inquiry about

whether she would have her belongings removed from the

church by the deadline was no doubt unwelcome and uncom-

fortable to petitioner. However, given the circumstances, even

if petitioner was subjectively alarmed by that behavior—

which included the nonspeech conduct of “poking” his

chest—such alarm was not objectively reasonable. That is,

respondent’s conduct would not cause a reasonable person

in petitioner’s situation to be apprehensive or afraid due to

a perception of danger. In other words, respondent’s conduct

would not cause a reasonable person in petitioner’s situa-

tion to be apprehensive or afraid due to the perception of

a “threat of physical injury” rather than “merely a threat

of annoyance or harassment.” Brown, 249 Or App at 586;

see also King, 276 Or App at 538 (victim’s subjective alarm

must be objectively reasonable “for a person in the victim’s

situation”); see also, e.g., Greenwade, 285 Or App at 651 (not

objectively reasonable for person in the petitioner’s situation

to be alarmed by the respondent’s conduct—directing third

person to smear sardines on the petitioner’s car—where

there was no evidence that anyone was endangered or, “in

the broader context of the parties’ feud,” that the incident

would cause an objectively reasonable fear of physical injury

in the future); Christensen v. Carter/Bosket, 261 Or App 133,

142-43, 323 P3d 348 (2014) (noncommunicative portion of

the respondent’s conduct during a particular incident—

shaking his clenched fists at the petitioner—did not give

rise to objectively reasonable alarm); Brown, 249 Or App at

588-89 (concluding that alarm caused by the respondent’s

act of spraying the petitioner with garden hose was not

objectively reasonable and, thus, not a qualifying contact,

where there was no evidence indicating a threat of physi-

cal injury and behavior was not “inexplicable” given the cir-

cumstances between the parties); Reitz v. Erazo, 248 Or App

700, 706, 274 P3d 214 (2012) (the respondent pushing the

petitioner approximately 10 times over two years while both

were shopping did not provide basis for objectively reason-

able alarm). Similarly here, the evidence is insufficient to

show that respondent’s August 7 conduct would reasonably

cause apprehension or fear resulting from the perception

of a threat of physical injury, rather than merely a threat

162 T. M. E. v. Strope

of annoyance or harassment. Her behavior is, rather, cor-

rectly viewed as “hyperbole, rhetorical excess, and impo-

tent expressions of anger or frustration” not intended to be

addressed by the issuance of an SPO. Van Buskirk v. Ryan,

233 Or App 170, 176, 225 P3d 118 (2010) (internal quotation

marks omitted). The “legislature has not authorized trial

courts to issue SPOs for unwanted contact that is unset-

tling, unusual, or unpleasant.” Huber v. Landolt, 267 Or App

753, 760-61, 341 P3d 175 (2014).

In sum, petitioner offered two potential contacts to

support his request for an SPO. The first one does not qual-

ify as an unwanted contact that would cause a reasonable

person in the same circumstances to be alarmed as that

term is understood in the SPO context. Because we conclude

that it does not, the record contains insufficient evidence

of repeated unwanted contacts, regardless of whether the

second encounter could qualify. See ORS 163.738(2)(a)(B)

(requiring repeated unwanted contacts for issuance of an

SPO); ORS 163.730(7) (“ ‘Repeated’ means two or more

times.”); Valerio v. Valerio, 224 Or App 265, 271, 197 P3d

1124 (2008) (declining to analyze the sole remaining inci-

dent in light of the two-contacts requirement); Outlaw v.

Richey, 301 Or App 18, 33, 456 P3d 348 (2019) (also declin-

ing to analyze the sole remaining incident in light of the

two-contacts requirement).

The trial court erred in issuing the permanent SPO.

Reversed.