277 P.3d 628
Or. Ct. App.2012Background
- Petitioner sought a stalking protective order against her neighbor after a escalating dispute over a shared property line and a fence, amid a redevelopment of a fourplex on petitioner's property.
- The Browns remodeling caused complaints to the city and escalating confrontations with respondent, including claims of drainage and trespass.
- Incidents included heated exchanges, speech-based hostility, and respondent sending petitioner's husband NRA materials; a survey later showed respondent's boundary encroached by about 18 inches.
- In November, petitioner and her son’s fiancée crossed the historical boundary; respondent aggressively confronted them, cursing and threatening.
- On December 30, 2008, the Browns attempted to remove respondent's fence; respondent sprayed them with water from a hose and was arrested; the next morning petitioner observed respondent pointing a gun at her.
- Trial court granted a permanent SPO after finding two or more qualifying contacts; on appeal, court reversed, concluding there was at most one qualifying contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were there two qualifying contacts under ORS 30.866? | Roach contends two or more contacts occurred. | S.A.B. argues only one qualifying contact occurred. | Two or more contacts not established; SPO reversed. |
| Is speech by respondent a qualifying 'contact' under Rangel? | Speech-based threats could satisfy Rangel when alarming the petitioner. | Hostile speech alone does not meet the Rangel threat standard. | Speech did not constitute a Rangel threat before December 30; not a qualifying contact. |
| Did the December 30 spraying incident constitute a qualifying contact? | Spraying was alarming and coercive, contributing to fear for safety. | Spraying was tedious and contextually justified; not a presence of imminent danger. | Spraying did not create an objectively reasonable fear of physical injury; not a qualifying contact. |
| Did the gun incident count as a second contact to support the SPO? | Gun incident could be a separate contact. | Gun incident alone, if any, is only one contact and insufficient. | Gun incident, if considered, would be only one contact; insufficient to sustain SPO. |
| What is the applicable standard of review after the 2009 amendments to ORS 19.415? | Evidence should be reviewed de novo for sufficiency. | Court reviews for evidence support and legal sufficiency, not de novo. | Court declined de novo review; reviewed for evidence support and legal sufficiency. |
Key Cases Cited
- Bryant v. Walker, 190 Or.App. 253 (2003) (requires both subjective alarm and objective reasonableness)
- Magyar v. Weinstein, 211 Or.App. 86 (2007) (ownership context affects objective reasonableness of alarm)
- Reitz v. Erazo, 248 Or.App. 700 (2012) (danger perception governs alarm standard)
- Gunther v. Robinson, 240 Or.App. 525 (2011) (shouting a hateful message insufficient for threat under Rangel)
- Swarringim v. Olson, 234 Or.App. 309 (2010) (explicit threats to harm said child insufficient for Rangel)
- Goodness v. Beckham, 224 Or.App. 565 (2008) (repeated insults and threats not enough under Rangel)