763
Argued and submitted November 5, reversed December 9, 2020
B. M.,
Petitioner-Respondent,
v.
Brooke Ann DEATON,
Respondent-Appellant.
Douglas County Circuit Court
19SK02158; A172903
479 P3d 347
For making false allegations and complaints to petitioner’s employer and
the police about petitioner, and for parking in front of petitioner’s house late at
night, a trial court entered a stalking protective order (SPO) against respondent. Respondent appeals that SPO, contesting the sufficiency of the evidence
to support it. Held: The trial court erred. Although respondent’s contacts with
petitioner were harassing, nothing in the record allowed for the inference that
respondent would engage in conduct that would put petitioner or her family at
risk of physical injury, as required to support an SPO under ORS 30.866(1).
Reversed.
Ann Marie Simmons, Judge.
Charles F. Lee argued the cause for appellant. Also on
the briefs was Charles F. Lee P.C.
Dan G. McKinney and DC Law filed the brief for
respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Haselton, Senior Judge.
LAGESEN, P. J.
Reversed.
764 B. M. v. Deaton
LAGESEN, P. J.
Respondent appeals a stalking protective order
(SPO) entered against her under ORS 30.866, contesting
the sufficiency of the evidence to support the order. Because
this is not a case that calls for de novo review, we review the
trial court’s factual findings for any evidence and its legal
conclusions for errors of law. Travis v. Strubel, 238 Or App
254, 256,
242 P3d 690 (2010). Applying that standard of
review, we conclude that the evidence is insufficient to support the entry of the SPO against respondent. Accordingly,
we reverse.
To obtain an SPO, petitioner was required to prove
that, among other elements, (1) respondent subjected her or
members of her household to “repeated and unwanted contact” and (2) “[t]he repeated and unwanted contact cause[d]
the victim reasonable apprehension regarding the personal
safety of the victim or a member of the victim’s immediate
family or household.” ORS 30.866(1). Specifically, petitioner
was required to prove facts demonstrating that “the contacts,
cumulatively, … [gave] rise to subjective apprehension
regarding the petitioner’s personal safety or the personal
safety of the petitioner’s immediate family or household, and
that apprehension must be objectively reasonable.” Blastic v.
Holm, 248 Or App 414, 418,
273 P3d 304 (2012). To satisfy
that standard, the contacts at issue must be such that it was
objectively reasonable to fear that respondent would “engage
in violence or other conduct that puts the petitioner or her
family at risk.” Huber v. Landolt,
267 Or App 753, 760-61,
341 P3d 175 (2014). That is, the contacts must be ones that,
in the context in which they were made, could “reasonably
cause apprehension or fear resulting from the perception of
a threat of physical injury.” Elliott v. Strope,
307 Or App 156,
161,
476 P3d 972 (2020).
That standard was not met here. As we understand the court’s order, it determined that it was objectively
reasonable for petitioner to fear for her personal safety or
the safety of her family based on a finding that (1) respondent contacted petitioner’s employer multiple times alleging (falsely) that petitioner “had been doing things” to her
with her work uniform on; (2) respondent falsely reported to
Cite as 307 Or App 763 (2020) 765
police that petitioner had hit her with her car while respondent was jogging; and (3) respondent parked in front of petitioner’s house in the early hours of the morning.1
Each of those contacts was, no doubt, harassing and
unsettling. Respondent’s complaints to petitioner’s employer
and to law enforcement triggered investigations that were
unquestionably stressful for petitioner. It is no small thing
to be under investigation by law enforcement or by one’s
employer. Respondent’s behavior may well have been tortious, such that petitioner may have had tort claims available against respondent, something the trial court explicitly recognized. But an injury that might give rise to a tort
claim against respondent does not necessarily supply a
basis for the entry of an SPO against respondent. An SPO,
as noted, requires evidence that allows an inference that
the unwanted contacts made it objectively reasonable to fear
that respondent would engage in violence or conduct that
would put petitioner (or her family) at risk of physical injury.
Nothing in this record allows for that inference. There is
no evidence that respondent threatened physical harm to
petitioner, no evidence that respondent took any other steps
that would put the personal safety of petitioner or her family
at risk, and no other evidence that would allow for a finding
that any fear of physical injury resulting from respondent’s
contacts was an objectively reasonable one.
Reversed.
1
Although the bulk of the contacts at issue involved third parties, it appears
that they qualify as contacts for purposes of ORS 30.866. See ORS 163.730(3)
(defining “contact” for purposes of ORS 30.866). Ultimately, that issue is one we
need not address.
