273 P.3d 304
Or. Ct. App.2012Background
- Petitioner sought and was granted a stalking protective order (SPO) against respondent due to disputes in the housing development with the HOA.
- Trial court found two separate unwanted contacts met statutory requirements for an SPO.
- Lawnmower incident occurred on the development’s main street: petitioner, with a leg brace and cane, was followed closely by respondent on a riding lawnmower; petitioner feared for his dog and safety; respondent made a threatening remark to petitioner's wife.
- A second incident at a community meeting also qualified as a contact.
- The SPO was issued under ORS 163.738(2)(a)(B).
- On appeal, respondent challenged (1) whether the lawnmower incident qualified as a contact, (2) the use of speech as context, and (3) the lack of a culpable mental state regarding petitioner's alarm; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the lawnmower incident qualify as a contact under the statute? | T.M.B. argues the lawnmower incident is a qualifying contact. | Holm contends the lawnmower incident does not constitute a contact. | Yes; the lawnmower incident qualifies as a contact. |
| May the trial court consider speech by Holm as context rather than as a contact itself? | T.M.B. argues speech can illuminate the intent and support a finding of alarm. | Holm argues speech is not a contact and should not influence the contact analysis. | Speech can be considered as context for nonexpressive contacts, not as a contact itself. |
| Must the petitioner show a culpable mental state regarding the alarm caused by the contacts? | T.M.B. argues no culpable mental state is required for alarm. | Holm argues a mental state should apply to alarm. | No culpable mental state is required for petitioner's alarm; Delgado applies. |
Key Cases Cited
- Delgado v. Souders, 334 Or. 122 (Or. 2002) (held no culpable state required for alarm in civil stalking statute (alarm/coercion focus on recipient))
- State v. Rangel, 328 Or. 294 (Or. 1999) (speech must be a threat to be an actionable contact under Rangel)
- Travis v. Strubel, 238 Or. App. 254 (Or. App. 2010) (sets standard of review for legal errors on appeal)
- Bryant v. Walker, 190 Or. App. 253 (Or. App. 2003) (contacts must be 'repeated and unwanted' and cumulatively cause alarm)
- Habrat v. Milligan, 208 Or. App. 229 (Or. App. 2006) (speech may provide context for nonexpressive contacts)