State v. Holbrook

No. 236 April 1, 2026 93

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SETH THOMAS HOLBROOK,

Defendant-Appellant.

Yamhill County Circuit Court

22CR37521, 23CN00241; A181146 (Control), A181148

Ladd J. Wiles, Judge.

Argued and submitted February 12, 2025.

Joel C. Duran, Deputy Public Defender, argued the

cause for appellant. Also on the brief was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Oregon Public

Defense Commission.

Elise Josephson, Assistant Attorney General, argued the

cause for respondent. On the brief were Ellen F. Rosenblum,

Attorney General, Benjamin Gutman, Solicitor General,

and Adam Holbrook, Assistant Attorney General.

Before Shorr, Presiding Judge, Powers, Judge, and

Pagán, Judge.

PAGÁN, J.

Affirmed.

Shorr, P. J., concurring.

94 State v. Holbrook

PAGÁN, J.

Defendant appeals from a judgment of conviction

for stalking, ORS 163.732, and second-degree trespass,

ORS 164.245.1 In his sole assignment of error, defendant

asserts that the trial court erred when it denied a motion

for a judgment of acquittal (MJOA) on the stalking charge.

The stalking charge arose from three incidents in which

defendant came to his ex-wife D’s home. Defendant argues

that the incidents, while problematic, could not have made

D reasonably apprehensive for her safety. We conclude that,

based on evidence of the nature of the incidents, D’s clearly

expressed desire for no contact, and defendant’s behavior, a

reasonable juror could have found defendant guilty beyond

a reasonable doubt. We thus affirm.

A judgment of acquittal is required if the evidence

is insufficient to support a verdict. State v. Cunningham,

320 Or 47, 61-62, 880 P2d 431 (1994), cert den, 514 US 1005

(1995); State v. Newkirk, 319 Or App 131, 133, 509 P3d 757,

rev den, 370 Or 214 (2022). We review questions of the suffi-

ciency of the evidence in a criminal case following a convic-

tion by examining the evidence in the light most favorable

to the state to determine whether a rational trier of fact,

accepting reasonable inferences and reasonable credibility

choices, could have found the essential elements of the crime

beyond a reasonable doubt. Cunningham, 320 Or at 63. This

court’s decision is not whether we believe that defendant is

guilty beyond a reasonable doubt, but whether the evidence

is sufficient for the factfinder to so find. Id.

In 2022, defendant and D had been divorced for sev-

eral years. They had two children together, ages four and

nine, with whom defendant had visitation rights. A condition

of their divorce was that all communication between them

was to be by email. The parties had not seen each other,

except at a distance at a visitation center, since the divorce.

On July 27, 2022, defendant showed up unannounced at D’s

house and knocked on the door. D came out of her home and

1

This case was consolidated on appeal with a judgment in Case No. 23CN00241

finding defendant in contempt on two counts of contempt of court, ORS 33.015, for

contacting the victim despite a no-contact order. Because defendant does not chal-

lenge the findings of contempt, we affirm the judgment in that case.

Cite as 348 Or App 93 (2026) 95

had a “civil conversation” with defendant and pet his dogs,

who were in his van. The children saw that defendant was

there and asked if he could see their rooms. D obliged and

defendant was in the home for about 45 minutes with the

children. Afterwards, D told defendant that he should not

be there and that further contact needed to be via email.

A week later, on August 3, defendant showed up

again unannounced. D opened the door and talked with

defendant. This time, defendant had a bouquet of roses and

was repeating “I love you.” Defendant told D “[y]ou’re my

wife. You belong to me.” D replied “[t]hat’s not where we’re

at all. And I have a choice too. Now, we’re divorced. That

was in the past. You need to go.” Defendant was also mut-

tering under his breath. Defendant hugged his son, who

was standing with D. D repeatedly told defendant to leave.

Defendant twice reached out to touch D. The second time, he

leaned towards her in what she thought might have been an

attempt to kiss her. D then pushed past defendant with her

son and requested that defendant move his van out of the

way of her car. She told her son they were going to the Lego

store, drove off, and called police. Police arrived and found

defendant nearby and told him that he had to leave.

That afternoon, after D had returned home, defen-

dant again arrived at her house, parking his van such that

it blocked her car from leaving. He again knocked at her

door. D did not open it. Defendant then began walking back

and forth between his van and the door, pounding on the

door each time. D called police. Police arrived and made it

clear to defendant that he had been trespassed and was not

allowed on the property. Defendant acknowledged as much,

but then walked back to his van, opened the door, and took

out the bouquet of roses. D was watching from a second-floor

window. Defendant then, in the presence of several officers,

approached the door and left the bouquet of roses on a bench.

At that point, police arrested him. D saw the entire incident.

Defendant made a series of nonsensical statements after his

arrest, and officers otherwise noted that his demeanor was

peculiar both in the morning and afternoon.

Defendant was charged with Count 1, stalking,

under ORS 163.732, and Count 2, second-degree trespass,

96 State v. Holbrook

under ORS 164.245. The case was tried to a jury. Defendant

moved for an MJOA on Count 1. The trial court denied defen-

dant’s motion. The jury found defendant guilty, and the trial

court sentenced him to 24 months of supervised probation

and three days in jail.

D filed for a stalking protective order (SPO) based

on the same incidents as in the criminal case, which was

denied. We affirmed the denial of the SPO in D. R. H. v.

Holbrook, 341 Or App 299, 301 (2025) (nonprecedential mem-

orandum opinion). That outcome is not binding or persuasive

here, however, because we affirmed the denial of the SPO on

the deferential grounds that the trial court there did not

find D’s testimony to be credible and D thus failed to meet

her burden of proof in the context of that proceeding. Id.

The jury in this case was free to find D credible, and, based

on its verdict, it apparently did so. The question before us is

thus whether a reasonable juror could have found defendant

guilty based on the evidence. Cunningham, 320 Or at 63.

The criminal stalking statute, ORS 163.732, pro-

vides that:

“(1) A person commits the crime of stalking if:

“(a) The person knowingly alarms or coerces another

person or a member of that person’s immediate family or

household by engaging in repeated and unwanted contact

with 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.”

(Emphases added). “Repeated” means two or more times.

ORS 163.730(9). “Alarm” means “to cause apprehension or

fear resulting from the perception of danger.” ORS 163.730(1).

“Danger” means “a threat of physical injury, not merely a

threat of annoyance or harassment.” S. A. B. v. Roach, 249

Or App 579, 586, 277 P3d 628 (2012) (citing K. R. v. Erazo,

248 Or App 700, 707, 274 P3d 214 (2012)). “The statute thus

Cite as 348 Or App 93 (2026) 97

requires an objectively reasonable fear of a threat of phys-

ical injury.” J. C. R. v. McNulty, 304 Or App 286, 292, 467

P3d 48 (2020).

Defendant’s challenge rests on ORS 163.732(b) and

(c). He argues that no reasonable juror could have found that

any of the three incidents would have made an objectively

reasonable person in the same situation fear for their safety.

He further contends that in the July 27 incident, and in the

morning incident of August 3, no rational juror could have

found that D was subjectively or objectively alarmed.

We agree with defendant that the June 27 incident

could not have been a qualifying contact because no reason-

able juror could find that D had a reasonable apprehension

for her or her children’s safety, or that it was objectively rea-

sonable to have been alarmed. See S. A. B., 249 Or App at

586 (mere annoyance is insufficient to prove danger). The

visit was cordial, D played with defendant’s dogs, D let defen-

dant into the house to play with the children, and otherwise

manifested that she was not worried—even if she may have

doubted defendant’s motives. But D’s admonition at the end

of the visit that future contact needed to be via email was an

expression that it was a one-time event.

Given that D had expressed that future contact

was to be via email only, as mandated by the terms of their

divorce, defendant’s appearance on the morning of August 3

was thus without D’s approval or consent. D made clear that

defendant was not welcome. Defendant ignored her rejection

and instead escalated his conduct. He persisted in making

contact, would not leave despite repeated requests to do so,

and then touched and tried to kiss D. Given that defendant

was muttering to himself, and otherwise exhibiting signs

that he might be mentally unwell (such as giving the offi-

cers a “thousand-yard stare”), combined with the touching

and his attempt to kiss D, a juror could find that it was

objectively reasonable for D to be alarmed. Further, D’s call

to police, her impromptu trip with her son, and testimony

about her mental state, was sufficient to find that she was

subjectively and objectively apprehensive for her safety. See

K. R., 248 Or App at 705 (laying out subjective and objective

apprehension). Thus, a reasonable juror could have found

98 State v. Holbrook

that the incident on the morning of August 3 was a qualify-

ing contact.

As to the afternoon incident, defendant’s behavior

despite the presence of police is crucial. When a person ignores

negative personal consequences—in this case, the risk of

arrest—to persist in making contact, that goes to the objec-

tive reasonableness of alarm. See M. C. H. v. Milligan, 208

Or App 229, 240, 145 P3d 180 (2006) (alarm was objectively

reasonable when mail carrier was willing to harass woman

on his route despite potential employment consequences).

Here, defendant pounded on the door repeatedly, and D called

police. When the police arrived, they told defendant that he

had been trespassed and that he had to leave. Despite the

presence of the officers and their commands, defendant dou-

bled back to his van, grabbed a bouquet, went up to the door,

and dropped the bouquet. While a bouquet is not itself a dan-

gerous or threatening object, the circumstances of its delivery

could have alarmed an objectively reasonable person.

Even though defendant and D did not meet face

to face, it was reasonable that D would have been reason-

ably apprehensive for her safety when she saw that defen-

dant was in her driveway continuing to behave peculiarly

(as indicated by his indecisive and repetitive movements

and his nonsensical statements), had blocked D’s car so she

could not leave, and openly defied the commands of armed

law enforcement in attempting to make contact. See C. P. v.

Mittelbach, 304 Or App 569, 579, 468 P3d 496 (2020) (reason-

able apprehension existed where conduct continued despite

police warnings and presence). The jury could have found

that an objectively reasonable person in D’s position would

have feared for their safety or that of their children. Thus,

a reasonable juror could have found that the afternoon inci-

dent was a qualifying contact.

Because a reasonable juror could have found that

both the morning and afternoon incidents on August 3 were

qualifying contacts, sufficient to meet the two-contact min-

imum under ORS 163.730(9), the trial court did not err by

denying defendant’s MJOA.

Affirmed.

Cite as 348 Or App 93 (2026) 99

SHORR, P. J., concurring.

I concur in the majority’s decision to affirm the trial

court’s judgment. I agree with nearly all of the majority’s

analysis. The majority correctly recites the elements of a

stalking crime under ORS 163.732, and I do not repeat all of

those elements here. As noted by the majority, the key issue

before us boils down to whether there was sufficient evidence

for the trial court to conclude that a reasonable factfinder

could find beyond a reasonable doubt based on the evidence

that D was objectively “alarmed”—meaning she had an

“objectively reasonable fear of a threat of physical injury”—

and had a “reasonable apprehension regarding [her] personal

safety” or that of her family. 348 Or App at 96-97 (citing ORS

163.732(1)(b) and (c)); see also State v. Odneal, 305 Or App

635, 640, 469 P3d 857 (2020) (observing that the state must

prove that the victim’s apprehension about personal safety

was objectively reasonable). Because ORS 163.732 requires

proof of “repeated” contacts, the contacts must have at least

twice given rise to an objectively reasonable fear of a threat

of physical injury and a reasonable apprehension regarding

personal or family safety. See also ORS 163.730(9) (defining

repeated as “two or more times”).

I write separately only because I disagree regard-

ing the point at which D had an objectively reasonable fear

of a threat of physical injury and a reasonable apprehen-

sion regarding safety with respect to the second qualifying

contact, which occurred on the afternoon of August 3. The

majority concludes that D had an objectively reasonable fear

and a reasonable apprehension of those elements based, in

significant part, on when defendant was outside D’s home,

covered by several police officers, and attempted to deliver a

bouquet of flowers to her door despite police instructions not

to do so. At that point, the record shows that D was safely

inside her home, was watching the interaction from a win-

dow, and had no contact with defendant, who, as noted, was

covered by at least three police officers. I do not think it

would be objectively reasonable for her to fear for her or her

family’s safety at that point.

However, I agree that D would have an objectively

reasonable fear and reasonable apprehension about her and

100 State v. Holbrook

her family’s safety when defendant first reapproached D’s

home on the afternoon of August 3 and repeatedly pounded

on the door before the police arrived. Earlier that morning,

both D and, significantly, the police had already warned

defendant to stay away from D’s home because D did not

want him there. In the context of defendant’s earlier behav-

ior, his controlling statements, his unwanted physical intru-

sion into D’s home and space on the morning of August 3,

which I agree establish the first qualifying contact under

the stalking statute, and the particular instructions from

D and the police to stay away, there was sufficient evidence

for the trial court to conclude that defendant’s aggressive

return to the home just hours later that afternoon would

cause D to objectively fear physical injury and have a rea-

sonable apprehension of fear for her and her family’s safety.

Accordingly, I respectfully concur.