H. D. v. Stenbeck

551

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

Argued and submitted March 1, reversed October 26, 2022

H. D.,

Petitioner-Respondent,

v.

Joshua Phillip STENBECK,

Respondent-Appellant.

Douglas County Circuit Court

20SK02548; A175588

Kathleen E. Johnson, Judge.

Andy Simrin argued the cause for appellant. Also on the

briefs were Andy Simrin PC and Craig M. Arnold.

Christopher W. Peterman argued the cause for respon-

dent. Also on the brief were Keith D. Ropp and Christopher

W. Peterman, Attorney at Law, P.C.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

SHORR, P. J.

Reversed.

552 H. D. v. Stenbeck

SHORR, P. J.

Respondent appeals from a judgment imposing a

permanent stalking protective order (SPO) against him pur-

suant to ORS 30.866. He raises two assignments of error,

contending that the trial court erred in grounding the SPO

on speech-based contacts without determining whether they

met the standard established in State v. Rangel, 328 Or 294,

977 P2d 379 (1999), and that the court erred by issuing

the SPO. See Delgado v. Souders, 334 Or 122, 142 n 11, 46

P3d 729 (2002) (extending the reasoning in Rangel to civil

stalking law). We agree with respondent that the trial court

erred, conclude that petitioner did not meet the heightened

Rangel standard, and, therefore, reverse.

Neither party has requested de novo review, and

this is not a case in which such review is warranted. See

ORAP 5.40(8)(c) (the court will exercise its discretion to

review de novo “only in exceptional cases”). “We review the

trial court’s factual findings for any supporting evidence and

its legal conclusions for legal error.” H. L. P. v. Jones, 309 Or

App 108, 109, 481 P3d 415 (2021). In addition, because the

trial court issued the SPO, “we view the evidence and all

reasonable inferences that may be drawn from it in the light

most favorable to [petitioner] and assess whether, when so

viewed, the record is legally sufficient to permit that out-

come.” Id. (internal quotation marks omitted).

To obtain an SPO under ORS 30.866, the civil

stalking statute, a petitioner must establish by a preponder-

ance of the evidence

“(1) that the respondent engaged in repeated and

unwanted contact with the petitioner;

“(2) that the petitioner was subjectively alarmed or

coerced by the contact and that such alarm or coercion was

objectively reasonable;

“(3) that the petitioner subjectively experienced appre-

hension about personal safety as a result of the contact and

that such apprehension was objectively reasonable; and

“(4) that the respondent acted with the requisite men-

tal state.”

Nonprecedential Memo Op: 322 Or App 551 (2022) 553

C. Q. R. v. Wafula, 305 Or App 344, 352, 471 P3d 786 (2020)

(internal quotation marks omitted).

ORS 163.730 contains definitions of certain terms

that apply to the civil stalking statute, including, in subsec-

tion (3), a nonexclusive list of actions that qualify as “con-

tact.” The word “repeated” means “two or more times.” ORS

163.730(7). In addition,

“[t]he contact must be ‘unwanted,’ and it must cause

‘alarm.’ The contact must instill in the petitioner ‘appre-

hension or fear resulting from the perception of danger.’

ORS 163.170(1). ‘Danger’ in this context means ‘a threat of

physical injury, not merely a threat of annoyance or harass-

ment.’ [K. R.] v. Erazo, 248 Or App 700, 706-07, 274 P3d 214

(2012). To ‘ “[c]oerce” means to restrain, compel or dominate

by force or threat.’ ORS 163.730(2).”

H. L. P., 309 Or App at 113-14. “Each of the unwanted con-

tacts, individually, must give rise to both subjective and

objectively reasonable alarm or coercion.” J. C. R. v. McNulty,

304 Or App 286, 288-89, 467 P3d 48 (2020).

When the contact involves speech—oral or written—

“it must rise to the level of a threat to be considered a quali-

fying unwanted contact.” A. M. M. v. Hoefer, 269 Or App 218,

223, 344 P3d 121 (2015); see Rangel, 328 Or at 303 (“If the

contact in question amounts to communication by speech or

writing, only a threat will be sufficient to ‘cause apprehen-

sion or fear resulting from the perception of danger,’ as ORS

163.730 requires.”) As we recognized in A. M. M.,

“[u]nder Article I, section 8, of the Oregon Constitution,

unwanted contacts that involve speech are subject to a

heightened standard of proof. To qualify as a predicate

unwanted contact, any contact that involves speech must

be 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.”

269 Or App at 223 (internal quotation marks omitted).

Protected speech can be relevant as context for other,

nonexpressive contacts despite not qualifying itself as an

unwanted contact. H. L. P., 309 Or App at 114.

554 H. D. v. Stenbeck

Given that legal framework, we turn to the specif-

ics of this case. A detailed recitation of all of the underlying

facts would not benefit the parties, the bench, the bar, or

the public and we, therefore, provide only an overview of the

facts necessary to explain our decision.

At the time petitioner filed her petition for an SPO

in September 2020, she was 26 years old and respondent

was 28 years old. Petitioner and respondent met at a dance

class when petitioner was approximately 10 or 11 years old

and then did not have contact again until years later. In May

2017, respondent began to contact petitioner online, first

through LinkedIn and then via petitioner’s email address.

Between May 2017 and March 2020, respondent sent hun-

dreds of emails that were bizarre and indicate an obsession

with petitioner.1 They contain various statements about

religion, suicide, conspiracy theories regarding end times,

political figures, having special powers, and visions. There

are emails that express love for petitioner, state that respon-

dent’s future involves petitioner, and refer to various “paths,”

heaven, and death. Petitioner was living abroad during most

of that time period but came home to Roseburg more than

once. Petitioner and respondent had an in-person meeting

at a Roseburg coffee shop in August 2018; respondent drove

from his home in Prineville for that meeting. Respondent

also left written correspondence in the mailbox at petition-

er’s family home at the end of December 2019 or beginning

of January 2020. Petitioner told respondent to stop contact-

ing her. Others—including law enforcement—told respon-

dent to stop contacting petitioner. Nonetheless, he did not

stop. Petitioner moved back to Oregon in September 2020

and applied for the SPO shortly thereafter.

The trial court held a hearing, which took place

on more than one date, to determine whether a permanent

SPO should issue. At the conclusion of the hearing, the court

made several findings and ultimately concluded that the

SPO was warranted. The court determined that the meet-

ing at the coffee shop did not count as an unwanted contact,2

1

Petitioner testified that there were over 800 emails, the last of which were

sent in March 2020; prior to that, they had stopped for almost a year.

2

That determination is supported by the record.

Nonprecedential Memo Op: 322 Or App 551 (2022) 555

but that “there’s so many e-mails that are clearly unwanted

contact.” The court concluded, in part, that it was not nec-

essary to analyze the emails under Rangel “because the

physical proximity on numerous occasions, combined with

the sheer volume of contacts, are enough to be coercive in

nature. They’re enough to be alarming.”

On appeal, respondent contends that the trial court

erred by not applying the required heightened standard of

proof to the emails under Rangel and subsequent case law.

Further, respondent argues that, if the content of the emails

is considered, they do not meet the constitutional standard

to qualify as unwanted contacts.

We agree with respondent that the emails he

sent to petitioner are protected speech under the Oregon

Constitution and that the trial court erred in not consid-

ering whether they met the heightened standard. We have

reviewed the record and agree with respondent that the

emails do not meet the required standard—that is, the

emails from respondent to petitioner do not contain an

unequivocal threat of “imminent and serious personal vio-

lence” that was “objectively likely to be followed by unlawful

acts.” A. M. M., 269 Or App at 223. There are no doubt trou-

bling references in the emails to various “paths,” including

heaven and death. Even assuming that those are unequivo-

cal threats of imminent and serious personal violence, there

is no evidence in this record that respondent was objectively

likely to follow up on those threats with unlawful acts.3 To

3

As noted, under the Rangel standard, applying Article I, section 8, of the

Oregon Constitution to stalking protective orders arising out of speech-based

conduct, there must be evidence from which we can conclude that the threats

are objectively likely to be followed by unlawful acts. That is a difficult standard

for petitioner to meet and for a court to assess. In contrast, the Ninth Circuit in

a closely divided en banc opinion has concluded that “true threats” are not pro-

tected speech under the United States Constitution:

“A true threat, that is one where a reasonable person would foresee that the

listener will believe he will be subjected to physical violence upon his person,

is unprotected by the first amendment.

“It is not necessary that the defendant intend to, or be able to carry out

his threat; the only intent requirement for a true threat is that the defendant

intentionally or knowingly communicate the threat.”

Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,

290 F3d 1058, 1075 (9th Cir 2002), cert den, 539 US 958 (2003) (internal quotation

marks and citations omitted).

556 H. D. v. Stenbeck

the extent that the trial court concluded that, irrespective

of their content, the sheer number of emails supported the

issuance of an SPO, we conclude that was error. Although

there are a huge number of emails, the number alone without

further context could not give rise to an objectively reason-

able apprehension about personal safety. ORS 30.866(1)(c).

We also reject petitioner’s contention that there are at least

two qualifying contacts that are nonexpressive or otherwise

not subject to Rangel.

In reaching our conclusion, we do not minimize

the highly concerning nature of the voluminous number of

emails that respondent sent to petitioner, nor the effect that

they had on petitioner. We simply conclude that the emails

do not meet the heightened standard applicable to speech-

based contacts under Rangel that are necessary to qualify

as unwanted contact. As a result, the circumstances here do

not meet the requirements for an SPO.

Reversed.