488
Submitted January 12, affirmed February 9, petition for review denied
June 23, 2022 (369 Or 855)
C. J.,
Petitioner-Respondent,
v.
Agustin FLORES,
Respondent-Appellant.
Multnomah County Circuit Court
20PO08456; A175234
505 P3d 500
Petitioner obtained a sexual abuse protective order (SAPO) against respondent. After a contested hearing, the trial court continued the SAPO under ORS
163.763(2), finding that petitioner had been subject to sexual abuse by respondent
and that she reasonably feared for her physical safety if a SAPO was not entered.
Respondent appeals, challenging the sufficiency of the evidence supporting the
SAPO. Held: The Court of Appeals noted that respondent erroneously identified the applicable standard of review as d e n ovo, without acknowledging ORS
19.415(3)(b). Given that de novo review was not warranted, the court was therefore bound by the trial court’s factual findings if they were supported by any evidence in the record, and it reviewed the trial court’s legal conclusions for errors
of law. Henderson v. Byrne, 311 Or App 415, 416,
487 P3d 869 (2021). In the light
of that standard of review, the trial court did not err in continuing the SAPO.
Affirmed.
Frances G. Troy II, Judge.
Raymond Tindell filed the brief for appellant.
Juniper James Jacques and Legal Aid Services of Oregon
filed the brief for respondent.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
JAMES, P. J.
Affirmed.
Cite as 317 Or App 488 (2022) 489
JAMES, P. J.
Petitioner obtained a sexual abuse protective order
(SAPO) against respondent pursuant to ORS 163.760 to
163.777. After a contested hearing, the trial court continued
the SAPO, finding that petitioner had been subject to sexual abuse by respondent and that she reasonably feared for
her physical safety if a SAPO was not entered. Respondent
appeals, and we affirm.
From the outset, in his brief on appeal, respondent
erroneously identifies our standard of review as de novo,
without acknowledging ORS 19.415(3)(b).1 Our standard
of review for a SAPO is “the same as it would be for a
Family Abuse Prevention Act (FAPA) restraining order or
a stalking order.” Henderson v. Byrne, 311 Or App 415, 416,
487 P3d 869 (2021). Respondent does not request, pursuant
to ORAP 5.40(8)(a), that we exercise our discretion to review
this matter de novo, and even if he had properly done so, we
decline to exercise our discretion to engage in such review
as it is not warranted. See ORS 19.415(3)(b) (providing discretion for de novo review on appeal “in an equitable action
or proceeding”); ORAP 5.40(8)(c) (providing that the Court
of Appeals will exercise its discretion to try the cause anew
only in exceptional cases); Hanzo v. deParrie,
152 Or App
525, 537,
953 P2d 1130 (1998), rev den,
328 Or 418 (1999)
(FAPA orders and stalking protective orders are “decrees in
a suit in equity” and thus equitable in nature). We are therefore bound by the trial court’s “factual findings if they are
supported by any evidence in the record, and we review the
trial court’s legal conclusions for errors of law.” Henderson,
311 Or App at 416 (internal citations omitted). “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.” Proffitt v. Jones,
309 Or App 108, 109,
481 P3d 415 (2021) (explaining standard of review for stalking protective order) (internal quotation marks omitted). To the extent that the trial court did
not make express findings on disputed issues of significance,
1
Respondent erroneously cites ORS 19.125, the statutory provision that was
renumbered as ORS 19.415 in 1997.
490 C. J. v. Flores
we “presume that the court resolved any disputed facts consistently with the outcome that it reached.” Id.
We briefly state the relevant facts in accordance
with the above standard of review. Petitioner met respondent while working at a restaurant in Portland. In June
2019, while petitioner was organizing clean dishes at work,
respondent came up behind her, unclasped her bra, and
then followed her and kissed her breasts against her will. In
another incident, respondent grabbed petitioner and pressed
his fingers to her genitals. Respondent also put his clothed
genitals in petitioner’s face and asked her to give him oral
sex. Further, respondent threatened her that he would prevent her from finding other work in Portland if she quit the
job, and if she were to get back to Mexico, respondent would
have her beaten up so badly that she would not be able to
get up. After petitioner quit her job, respondent showed up
at her new places of employment and drove his motorcycle
around the property near her home.
Petitioner sought and obtained a SAPO, which
respondent contested. The trial court held a hearing, at
which respondent appeared through counsel, denying the
incidents of sexual abuse. Respondent testified that he had
a friendly relationship with petitioner and had viewed her
like a mother because of the age difference. In continuing
the SAPO, the trial court expressly found that “petitioner
credibly testified to a series of workplace encounters that
were not only sexual harassment, but on two occasions
amounted to sexual abuse as defined by statute.” And while
respondent attempted to discredit petitioner, the trial court
found that “no compelling argument was made as to why
petitioner would make any of this up and the details of the
abuse she endured were compelling.”
ORS 163.763(2) provides that, to obtain a SAPO, a
petitioner must prove by a preponderance of the evidence
that:
“(A) The petitioner reasonably fears for the petitioner’s
physical safety with respect to the respondent; and
“(B) The respondent subjected the petitioner to sexual
abuse.”
Cite as 317 Or App 488 (2022) 491
ORS 163.765(1) imposes an objective reasonableness requirement with respect to petitioner’s fear for her physical
safety. See Henderson,
311 Or App at 422 (“[T]he question is
whether the totality of the circumstances made it objectively
reasonable for petitioner to fear for her physical safety.”). For
purpose of ORS 163.763(2)(b)(B), “sexual abuse” means “sexual contact” with a person who either “does not consent to
the sexual contact” or “is considered incapable of consenting
to a sexual act under ORS 163.315, unless the sexual contact would be lawful under ORS 163.325 or 163.345.” ORS
163.760(2). “Sexual contact” means “any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor
for the purpose of arousing or gratifying the sexual desire of
either party.” ORS 163.305(6).
On appeal, respondent asserts a single assignment
of error, challenging the sufficiency of the evidence supporting the SAPO.2 He contends that petitioner fails to prove
that respondent had sexually abused her, and that she
reasonably feared for her physical safety with respect to
respondent, as required by ORS 163.763(2)(b). As mentioned
earlier, we review the facts found by the trial court to determine whether they are supported by “any evidence,” and if,
as a matter of law, those facts establish the requisites for
continuing the SAPO. Henderson, 311 Or App at 416.
There was sufficient evidence to support the trial
court’s finding that petitioner was subject to sexual abuse
under ORS 163.763(2)(b)(B). Specifically, petitioner testified
that respondent had unhooked her bra, touched, and kissed
her breasts despite petitioner’s objections. On another occasion, respondent had pressed his hands roughly to petitioner’s
2
We are dubious that the claim of error is properly raised on appeal, even
though respondent objected generally to the trial court’s continuance of the SAPO
at the hearing. At a minimum, respondent’s opening brief does not “specify the
stage in the proceedings when the question or issue presented by the assignment
of error was raised in the lower court, the method or manner of raising it, and
the way in which it was resolved or passed on by the lower court.” ORAP 5.45
(4)(a)(i). Nor does respondent “set out pertinent quotations of the record where the
question or issue was raised and the challenged ruling was made, together with
reference to the pages of the transcript ….” ORAP 5.45(4)(a)(ii). Nevertheless,
even if the error is preserved, as explained below, respondent’s arguments supply
no basis for reversing the trial court’s order.
492 C. J. v. Flores
genitals. The trial court found petitioner credible and the
reasons respondent offered to discredit petitioner unpersuasive. We normally defer to a trial court’s findings of credibility where they are based on an opportunity to see and hear
witnesses. State v. Cox, 43 Or App 771, 773,
604 P2d 423
(1979), rev den,
288 Or 527 (1980). This is especially true
where “credibility based on demeanor is a crucial factor in
making an appraisal of the evidence.” State v. Hall,
166 Or
App 348, 362-63,
999 P2d 509 (2000) (citing Wales v. Lester,
267 Or 379, 382,
517 P2d 281 (1973)).
Second, it was objectively reasonable for petitioner
to fear for her physical safety under the circumstances.
Petitioner testified that respondent threatened to have her
beaten up if she got back to Mexico and indicated that she
believed that was a serious threat. Respondent questions
the sufficiency of evidence by pointing out that petitioner
did not produce any police reports at the hearing. However,
nothing requires a SAPO petitioner to adduce any specific
type of evidence to obtain the SAPO. Moreover, petitioner
testified that she had reported to the police after she found
that petitioner followed her from job to job and constantly
appeared behind the apartment building where she lived.
In the light of our standard of review, we conclude
that there was sufficient evidence to allow the trial court to
make the findings that it did, and those facts support the
trial court’s conclusion that the legal requirements of ORS
163.763(2)(b) are satisfied. The trial court did not err in continuing the SAPO.
Affirmed.
