340 P.3d 773
Or. Ct. App.2014Background
- Petitioner (ex-wife) sought a permanent stalking protective order (SPO) after respondent (ex-husband) had earlier been convicted of felony assault for beating and choking her in 2009 and was subject to a no-contact provision.
- After the divorce petitioner moved to Multnomah County; respondent continued to contact and threaten her by telephone within two years before the SPO filing.
- Respondent told petitioner he would “send his skinhead friends to come take care of [her]” if she reported his no-contact violations, and separately told her he was going to “fuck [her] up.”
- Respondent also posted photographs of petitioner’s house taken from a cemetery across the street (petitioner did not prove he took or caused the photos to be taken).
- Trial court found the assault (crime) and the telephonic threats were repeated, knowing, credible, and caused reasonable apprehension; it entered a permanent SPO.
- On appeal respondent argued the telephonic threats and the photographs did not constitute qualifying predicate "contacts" under ORS 30.866; the court affirmed as to the threats and declined to affirm based on the photographs (petitioner presented no evidence linking respondent to the photos).
Issues
| Issue | Plaintiff's Argument (Schneider) | Defendant's Argument (Sutter) | Held |
|---|---|---|---|
| Whether respondent’s telephonic threats qualify as "contacts" under ORS 163.730 | Threats are contacts (speaking) that alarmed petitioner and were objectively likely to be followed by unlawful acts | Threats were not qualifying because, under Rangel, expressive contacts must be unequivocal threats of imminent serious violence; respondent’s threats were not imminent | Held: Telephonic threats (including “fuck you up”) were unequivocal and, in context, were threats of imminent serious physical harm and thus qualifying contacts |
| Whether threats conditioned on petitioner’s future action (i.e., having others harm her if she reported him) can be "imminent" | Threats viewed with surrounding context (prior assault, bragging about killing, criminal history) support imminence | Contingent threats (harm only if petitioner acts) are not threats of imminent harm and thus insufficient | Held: Contingent third‑party threats alone would not be imminent, but they provided context; respondent’s direct threat to “fuck [her] up” was imminent under the circumstances |
| Whether the assault conviction plus one qualifying expressive contact satisfy the two‑contact requirement for an SPO | Attack (crime) counts as one contact; the telephonic threat supplies the second contact required within two years | Argues the telephonic threat fails Rangel’s imminence and unequivocality requirements, so only one qualifying contact exists | Held: The assault (crime) and the telephonic threat together constitute repeated contacts sufficient for an SPO |
| Whether the posted photographs of petitioner’s home were qualifying contacts | Photos (electronic/written communications or waiting/observing) could be contacts | Petitioner failed to prove respondent took or caused the photos; trial court erred to rely on them | Held: Court did not rely on photos; petitioner offered no proof linking respondent to photos, so photos were not used to support SPO |
Key Cases Cited
- Travis v. Strubel, 238 Or. App. 254 (review for any evidence of trial court factual findings in stalking cases)
- State v. Rangel, 328 Or. 294 (narrowing construction: expressive contacts must be unequivocal threats that instill fear of imminent serious violence and are likely to be followed by unlawful acts)
- Hanzo v. deParrie, 152 Or. App. 525 (application of Rangel principles to civil stalking statute)
- Brown v. Roach, 249 Or. App. 579 (standards for SPO and review of legal issues)
- Swarringim v. Olson, 234 Or. App. 309 (contingent third‑party threats not qualifying as imminent)
- DiCarlo v. McCarthy, 208 Or. App. 184 (verbal threats can qualify as contacts when they reasonably put victim in fear of immediate serious violence)
- Shin v. Sunriver Preparatory School, Inc., 199 Or. App. 352 (statutory interpretation reviewed as legal question)