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   This is a nonprecedential memorandum opinion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 respondent. 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 pursuant 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, 

,

 (1999), and that the court erred by issuing
the SPO. See Delgado v. Souders, 

, 142 n 11, 

 (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, 

, 

 (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.” 

 (internal quotation marks omitted).
         To obtain an SPO under ORS 30.866, the civil
stalking 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 apprehension 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 mental state.”
Nonprecedential Memo Op: 

 (2022)                 553

C. Q. R. v. Wafula, 

, 

 (2020)
(internal quotation marks omitted).
          ORS 163.730 contains definitions of certain terms
that apply to the civil stalking statute, including, in subsection (3), a nonexclusive list of actions that qualify as “contact.” 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 ‘apprehension 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 harassment.’ [K. R.] v. Erazo, 

, 

   (2012). To ‘ “[c]oerce” means to restrain, compel or dominate
   by force or threat.’ ORS 163.730(2).”
H. L. P., 

. “Each of the unwanted contacts, individually, must give rise to both subjective and
objectively reasonable alarm or coercion.” J. C. R. v. McNulty,

, 

 (2020).
         When the contact involves speech—oral or written—
“it must rise to the level of a threat to be considered a qualifying unwanted contact.” A. M. M. v. Hoefer, 

, 

 (2015); see Rangel, 

 (“If the
contact in question 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 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.”

 (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., 

.
554                                                      H. D. v. Stenbeck

          Given that legal framework, we turn to the specifics 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 hundreds 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 respondent’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 petitioner’s family home at the end of December 2019 or beginning
of January 2020. Petitioner told respondent to stop contacting her. Others—including law enforcement—told respondent 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 meeting 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: 

 (2022)                                555

but that “there’s so many e-mails that are clearly unwanted
contact.” The court concluded, in part, that it was not necessary 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 considering 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 violence” that was “objectively likely to be followed by unlawful
acts.” A. M. M., 

. There are no doubt troubling references in the emails to various “paths,” including
heaven and death. Even assuming that those are unequivocal 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 protected 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,

, 1075 (9th Cir 2002), cert den, 

 (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 reasonable 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.