M. F. v. Baker

787

Submitted September 15, 2022, reversed May 10, 2023

M. F.,

Petitioner-Respondent,

v.

Kevin BAKER,

Respondent-Appellant.

Washington County Circuit Court

21SK02545; A177203

530 P3d 142

Respondent appeals from a judgment imposing a permanent stalking pro-

tective order (SPO) against him, contending that the trial court erred because

the speech-based contacts did not meet the heightened standard required for

expressive contacts and because there were not two or more qualifying contacts.

Held: The trial court erred in issuing the SPO. The speech-based contacts were

harassing and hostile but did not meet the heightened standard required by the

Oregon Constitution because they did not contain unequivocal threats of immi-

nent and serious personal violence that were objectively likely to be followed by

unlawful acts. The nonexpressive contacts were unwanted and met the require-

ment that they were subjectively alarming to petitioner, however, the evidence in

the record does not establish that those contacts were also objectively alarming.

Reversed.

Oscar Garcia, Judge.

Christopher W. Brown and Kinney & Brown PC filed the

brief for appellant.

No appearance for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

POWERS, J.

Reversed.

788 M. F. v. Baker

POWERS, J.

Respondent appeals from a judgment imposing a

permanent stalking protective order (SPO) against him,

raising a single assignment of error. Petitioner waived

appearance on appeal. Respondent contends on appeal

that the trial court erred by issuing the SPO because the

speech-based contacts did not meet the heightened standard

required for expressive contacts and because there were

not two or more qualifying contacts. As explained below,

because the record does not support that there were two or

more qualifying contacts and because the speech-based con-

tacts did not meet the heightened standard required by the

Oregon Constitution, we reverse.

Respondent has not requested de novo review, and

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

ORAP 5.40(8)(c) (explaining that the court will exercise its

discretion to review de novo “only in exceptional cases”);

ORAP 5.40(8)(d) (describing a nonexclusive list of factors

that the court will consider when determining whether

to exercise discretion to conduct de novo review). Without

de novo review, 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 outcome. Id.

We begin with a brief overview of the SPO frame-

work under ORS 30.866, the civil stalking statute. To obtain

an SPO under that statute, a petitioner must establish by a

preponderance 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

Cite as 325 Or App 787 (2023) 789

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

tal state.”

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

(internal quotation marks omitted).

ORS 163.730 defines specified terms that apply to

the civil stalking statutory framework, including a nonexclu-

sive list of actions that qualify as “contact.” ORS 163.730(3).1

Contact is “repeated” if it occurs two or more times. ORS

163.730(7). Contact causes “alarm” if it instills in the peti-

tioner “apprehension or fear resulting from the perception of

danger.” ORS 163.730(1). “Danger” in this context means “a

threat of physical injury, not merely a threat of annoyance

or harassment.” K. R. v. Erazo, 248 Or App 700, 707, 274

P3d 214 (2012). Each of the unwanted contacts, 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 qual-

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

1

ORS 163.730 provides, in part:

“(3) ‘Contact’ includes but is not limited to:

“(a) Coming into the visual or physical presence of the other person;

“(b) Following the other person;

“(c) Waiting outside the home, property, place of work or school of the

other person or of a member of that person’s family or household;

“(d) Sending or making written or electronic communications in any

form to the other person;

“(e) Speaking with the other person by any means;

“(f) Communicating with the other person through a third person;

“(g) Committing a crime against the other person;

“(h) Communicating with a third person who has some relationship to

the other person with the intent of affecting the third person’s relationship

with the other person;

“(i) Communicating with business entities with the intent of affecting

some right or interest of the other person;

“(j) Damaging the other person’s home, property, place of work or school;

“(k) Delivering directly or through a third person any object to the home,

property, place of work or school of the other person; or

“(L) Service of process or other legal documents unless the other person

is served as provided in ORCP 7 or 9.”

790 M. F. v. Baker

218, 223, 344 P3d 121 (2015); see generally State v. Rangel,

328 Or 294, 303, 977 P2d 379 (1999) (“If the contact in ques-

tion amounts to communication by speech or writing, only

a threat will be sufficient to ‘cause apprehension or fear

resulting from the perception of danger,’ as ORS 163.730

requires.”). As we explained 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. The kinds of threat-

ening contacts that may support the issuance of a stalking

protective order do not include the kind of hyperbole, rhe-

torical excesses, and impotent expressions of anger or frus-

tration that in some contexts can be privileged even if they

alarm the addressee.”

269 Or App at 223 (internal quotation marks omitted).2

Importantly, however, protected speech can be relevant as

context for other, nonexpressive contacts despite not quali-

fying itself as an unwanted contact. H. L. P., 309 Or App at

114.

With that legal framework in mind, we turn to the

specifics of this case. Petitioner and respondent, who dated

for about a year, amicably ended their relationship, but con-

tinued to talk regularly. After continuing to communicate

with respondent for a few weeks, petitioner unequivocally

told respondent to stop contacting her. Despite petitioner’s

request to cut off contact, respondent persisted by contacting

petitioner both in person—at her apartment and church—

and by phone, email, and social media for approximately

six weeks until petitioner obtained an SPO. The first time,

respondent left all the gifts that petitioner had given him

on her doorstep when she was not home. The second time,

respondent went to petitioner’s apartment around 11:00 p.m.

2

Article I, section 8, of the Oregon Constitution provides:

“No law shall be passed restraining the free expression of opinion, or

restricting the right to speak, write, or print freely on any subject whatever;

but every person shall be responsible for the abuse of this right.”

Cite as 325 Or App 787 (2023) 791

and spent several minutes knocking intermittently on the

front door. Petitioner, who was inside with a friend, closed

the back patio door to make sure that respondent could not

get into the first-floor apartment and closed some blinds and

windows “in [the] hopes that he would leave.” After respon-

dent received no answer at the front door, he walked around

to the back patio, saw petitioner and her friend through the

patio door, and yelled at petitioner about “loyalty” and then

left. Petitioner called the nonemergency police line to report

respondent.

Respondent also had contact with petitioner at her

church on at least four different occasions. She had attended

that church for over a decade, while respondent only began

attending the church near the end of their relationship. On

one occasion, respondent approached petitioner outside the

church, and on the other three occasions, respondent sat

within a few rows of petitioner, but they did not interact.

There were other times that petitioner saw respondent’s

car in the parking lot and chose not to go into church. She

explained that she “did not feel comfortable being in the

same vicinity” and would end up going home and watch-

ing the service online. In the incident where respondent and

petitioner interacted at church, petitioner recalled that, as

she was talking with the head pastor, she saw respondent

approach and started feeling “incredibly anxious and pan-

icked.” She explained, “I started getting light-headed and

dizzy” and then cut off her conversation with the pastor and

ran into the church.

In a different incident, after attending church and

not seeing respondent’s car there, petitioner drove away from

church and noticed about two minutes later that respondent

was directly behind her in his car. Petitioner proceeded

through a traffic intersection, turned into a random neigh-

borhood, and allowed respondent to pass without further

incident.

Respondent also sent petitioner numerous harass-

ing and hostile emails, texts, and social media messages,

and respondent called her multiple times and left voicemails

for petitioner, all of which made her feel unsafe. Respondent

used multiple phone numbers and accounts, which prevented

792 M. F. v. Baker

petitioner from blocking the messages and calls. In particu-

lar, petitioner was concerned by a barrage of messages sent

over a two-day period—including a message sent over social

media where respondent referenced suicide: “If I kill myself

right now, would you even care?” Petitioner was unaware

of respondent’s location when he sent those messages, and

she called the police and spent the night away from her

residence because she was afraid that respondent would be

waiting at her apartment.

Based on those continued interactions, petitioner

sought an SPO. At the hearing on whether to issue a per-

manent SPO, petitioner testified that respondent’s contact

at her apartment and at church made her feel unsafe.

When the trial court asked petitioner why she felt

unsafe, petitioner explained:

“Well, I don’t feel safe because he keeps showing up at

my apartment. Three different occasions he’s shown up at

my apartment unannounced after I’ve told him to stop con-

tacting me.

“Some of the times have been late at night or he will

send me all these text messages from random-generated

phone numbers of which because he had threatened to com-

mit suicide, the police department had said that they will

do a welfare check.

“When they called me back and they said that his car

was not there and he could not be located, I immediately

went to, ‘Well, then, where is he? Does that mean that he’s

here? Does that mean that he’s waiting for me? Does that

mean that he’s hiding in the bushes? Does that mean any

of these awful things that could happen?’ ”

The trial court followed up, asking again why she felt unsafe.

Petitioner testified:

“He’s a threat to my safety because he’s much larger

than I am. He’s a threat to my safety because what is my

defense? He’s a threat to my safety because normally where

I would feel safe behind my dogs to protect me, I don’t feel

safe behind my dogs because they wouldn’t protect me

against him.

“He’s a threat to my safety because all of a sudden he’s

everywhere. He’s now attending my church, he’s now—he’s

Cite as 325 Or App 787 (2023) 793

making me feel afraid to be alone at my home; he won’t stop

contacting me; he won’t—he’s threatening his life. At what

point would he then threaten my life?”

Summarizing her fear, petitioner explained, “because he

continues to show up at my apartment * * * unannounced,

will not leave, yelling into my bedroom door—or into the

sliding glass window; the repeated and constant text mes-

sages; he’s threatening his life, that is why I feel fearful.”

The trial court issued a permanent SPO.3 The trial

court did not specify which of the contacts it relied upon but,

in ruling from the bench, it referred to “a number of exces-

sive contacts” including that respondent repeatedly went to

petitioner’s residence and places that petitioner was likely

to be and respondent’s message to petitioner about suicide.

The trial court determined that, based on the totality of the

circumstances, it was subjectively and objectively reason-

able for petitioner to be alarmed and coerced by respondent’s

contacts.

On appeal, we conclude after reviewing the record

that the trial court erred in issuing the SPO because peti-

tioner failed to prove two or more qualifying contacts and

that the speech-based contacts did not meet the Rangel

standard. The nonexpressive contacts—when respondent

went to petitioner’s apartment and church and the incident

in which respondent followed petitioner after church—were

unwanted and met the requirement that they were sub-

jectively alarming to petitioner. However, the evidence in

the record does not establish that those contacts were also

objectively alarming, viz., creating an objectively reason-

able fear of threatened physical injury. See, e.g., H. L. P.,

3

In entering the permanent SPO, the trial court used a form that contained

preprinted findings that tracked the required statutory elements. However, the

court did not check the box providing that it was objectively reasonable for a

person in petitioner’s situation to have been alarmed or coerced by respondent’s

contact, which is a statutorily required element, nor did the court check the

box pertaining to speech-based contacts. Respondent has not assigned error to

this discrepancy, and in light of the trial court’s oral findings and its ultimate

entry of the SPO, we understand the discrepancy to be a clerical error that does

not inhibit appellate review. See Yarbrough v. Viewcrest Investments, LLC, 299

Or App 143, 158, 449 P3d 902 (2019), rev den, 366 Or 135 (2020) (explaining that

a “clerical” error is one that causes a judgment, through oversight or omission,

not to reflect what occurred in the proceeding that led to the judgment).

794 M. F. v. Baker

309 Or App at 115-16. There is nothing in the record that

gives these nonexpressive contacts enough context to

demonstrate how they create an objectively reasonable fear

of threatened physical injury.4 Likewise, the speech-based

contacts—emails, texts, social media messages, calls, and

voicemails—were harassing and hostile, but did not contain

unequivocal threats of “imminent and serious personal vio-

lence” that were “objectively likely to be followed by unlaw-

ful acts,” which is required to substantiate the issuance of

an SPO. A. M. M., 269 Or App at 223; see, e.g., D. W. C. v.

Carter, 261 Or App 133, 142, 323 P3d 348 (2014) (collecting

cases applying the Rangel standard). Indeed, the message

that the trial court called attention to in its findings—in

which respondent mentioned suicide—did not unequivocally

threaten imminent and serious personal violence against

petitioner. Although such statements could meet the Rangel

standard in other contexts, the context of each of respon-

dent’s unwanted and unnerving contacts with petitioner did

not meet the legal threshold for issuance of an SPO.

Reversed.

4

To the extent that the incident at petitioner’s apartment also involved

expressive conduct and that expressive conduct was the cause of alarm, we note

that it would not be a qualifying contact under the Rangel standard because

respondent’s statement about “loyalty” was not an unequivocal threat of immi-

nent and serious personal violence that was objectively likely to be followed by

unlawful acts. See State v. Hejazi, 323 Or App 752, 761, 524 P3d 534 (2023) (“If

the nonexpressive conduct causes the alarm, then Rangel does not apply; how-

ever, if the expressive conduct causes the alarm, then it must meet the Rangel

standard of a qualifying threat.”).