J. D. B. v. Muller

171

Submitted January 30, 2020, reversed July 14, 2021

J. D. B.,

Petitioner-Respondent,

v.

Randy Dennis MULLER

Respondent-Appellant.

Umatilla County Circuit Court

18SK02776; A170054

496 P3d 18

Respondent appeals from a final stalking protective order and judgment

entered under ORS 30.866, contending that the evidence was insufficient to

establish the requisite number of “repeated and unwanted” contacts. Respondent

argues that the second alleged requisite contact when he drove by and briefly

stopped in front of petitioner’s house to take pictures through the window of

his pickup truck could not have caused petitioner objectively reasonable alarm.

Held: It was not objectively reasonable for the second incident to have caused

alarm, and, thus, it was not a qualifying contact under ORS 30.866.

Reversed.

Eva J. Temple, Judge.

J. Michael Mattingly and Mattingly Law Firm, LLC,

filed the brief for appellant.

No appearance for respondent.

Before Powers, Presiding Judge, and Egan, Chief Judge,

and Lagesen, Judge.*

EGAN, C. J.

Reversed.

______________

* Lagesen, J., vice Linder, S. J.

172 J. D. B. v. Muller

EGAN, C. J.

Respondent appeals from a final stalking protec-

tive order (SPO) and judgment entered under ORS 30.866,1

contending that the evidence is insufficient to establish the

requisite number of “repeated and unwanted” contacts. We

agree with respondent and therefore reverse.

Respondent does not request de novo review, and

this is not an exceptional case warranting that review. See

ORAP 5.40(8)(c) (de novo review is only for exceptional cases).

Thus, we review the trial court’s factual findings for any evi-

dence and its legal conclusions for errors of law. Braude v.

Braude, 250 Or App 122, 124, 279 P3d 290 (2012). Absent

express findings, we presume that the trial court implicitly

found disputed facts consistent with the outcome. Miller v.

Hoefer, 269 Or App 218, 219, 344 P3d 121 (2015). When the

sufficiency of the evidence supporting an SPO under ORS

30.866 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). We state the relevant facts accordingly.

Petitioner’s ex-wife lives with her father, respon-

dent. Petitioner and his ex-wife have three children who

stay at respondent’s house when they are with their mother.

Respondent becomes angry when petitioner drives onto

respondent’s driveway to pick up the children. On October 11,

2018, petitioner drove onto respondent’s driveway to pick up

a child. Respondent became angry and “rammed, bumped, or

1

ORS 30.866 provides:

“(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 victim’s situation to

have been alarmed or coerced by the contact; 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.”

Cite as 313 Or App 171 (2021) 173

tapped” his vehicle into petitioner’s car three to four times to

remove petitioner as a “trespasser.” As a result of that inci-

dent, petitioner obtained a restraining order. Respondent

was arrested and, as a condition for his release, the court

issued an order prohibiting him from having contact with

petitioner.2

Approximately one month later, respondent drove by

petitioner’s house and briefly—about 30 seconds—stopped

in front, taking cell phone pictures of the house through the

window of his pickup truck. Petitioner was not at home and

did not see respondent. Petitioner’s daughter was home and

saw the pickup drive by but did not see who was driving it.

To support the issuance of an SPO under ORS

30.866, a petitioner must establish two or more unwanted

contacts. Brown v. Roach, 249 Or App 579, 583, 277 P3d 628

(2012). “[E]ach ‘contact,’ individually, must give rise to sub-

jective and objectively reasonable alarm or coercion.” Reitz v.

Erazo, 248 Or App 700, 706, 274 P3d 214 (2012). “Objectively

reasonable alarm requires that the apprehension regarding

the petitioner’s personal safety be objectively reasonable.”

Tesema v. Belete, 266 Or App 650, 654, 338 P3d 776 (2014).

When we determine whether a petitioner’s apprehension is

objectively reasonable, we consider “all of the circumstances

of the parties’ relationship.” Brown, 249 Or App at 587.

Based on the two above-described incidents, peti-

tioner sought an SPO. Respondent did not dispute that the

first incident was a qualifying contact under ORS 30.866,

but disputed that the second incident constituted a “con-

tact.” Petitioner testified that a neighbor told him of the

picture-taking incident, and that it caused him to be alarmed

for his safety and the safety of his daughter, because respon-

dent had already “slammed into the back of [his] car repeat-

edly” and had access to firearms. Petitioner’s daughter tes-

tified that when she saw the pickup she did not realize that

it was respondent and was not afraid or alarmed, but that

when she later learned it was respondent, she became con-

cerned for petitioner’s safety, because she knows that respon-

dent can be vindictive. The trial court issued the order, and

respondent appeals.

2

Criminal charges were filed but ultimately dropped.

174 J. D. B. v. Muller

On appeal, respondent contends that the picture-

taking incident could not have caused petitioner objectively

reasonable alarm and therefore was not a qualifying con-

tact under ORS 30.866, and we agree. This case is similar

to Braude. There, the petitioner accused the respondents of,

among other things, repeatedly driving past her rural home

in a manner that caused her alarm. The respondents were

spotted driving

“very slowly along the road in front of petitioner’s house;

on other days, one of respondents’ cars stopped for a short

time on the road near the entrance to petitioner’s driveway,

staying there for up to roughly 10 minutes.”

250 Or App at 125. We said in Braude, that “[r]espondents’

behavior in driving by petitioner’s house and photograph-

ing it, although unwelcome and unsettling to petitioner, did

not itself evince any threat to petitioner’s safety.” We noted

an absence of threatening gestures or comments, id. at 129,

and we rejected the notion that the behavior of driving by

and photographing the house took on a different charac-

ter against the backdrop of past assaulting conduct by the

respondent in that case. Id. at 130. We explained that the

“parties’ past relationship was not so characterized by vio-

lence or abuse as to make the more recent contacts objec-

tively threatening,” and that the respondent’s “past aggres-

sion toward petitioner involved only two isolated incidents

that occurred almost five years before petitioner sought the

SPOs, at the end of a long-term marriage that did not (as

far as the record reveals) involve other abuse.” Id. at 130-31.

Here, as in Braude, respondent made no threaten-

ing gestures or comments; indeed, petitioner was not even

at home during the picture-taking incident, and petitioner’s

daughter testified that she was not alarmed by the pickup

until she learned it was respondent. And, as in Braude,

this is not a case in which respondent’s previous contact is

enough to change the character of the otherwise nonthreat-

ening conduct of driving by and taking pictures. Although

in Braude, we concluded that the five-year time span since

any abuse was significant in our determination, that was

also in the context of the parties’ long-term marriage during

which there was no further record of abuse. Similarly, here,

Cite as 313 Or App 171 (2021) 175

respondent and petitioner have a long history of interacting

with each other. The record indicates that their relationship

has been “tense,” but nothing in the record demonstrates

that the isolated incident of violence changed the charac-

ter of the later otherwise nonthreatening conduct. Finally,

although petitioner raised a concern about respondent’s

access to firearms, the record does not suggest that respon-

dent ever threatened petitioner with firearms. We conclude

that the picture-taking incident is not a qualifying contact

under ORS 30.866, and that petitioner therefore has failed

to establish “repeated” contacts, as required by the statute.

The trial court therefore erred in entering the SPO.

Reversed.