M. D. O. v. Desantis

302 Or.App. 751

461 P.3d 1066

M. D. O., Petitioner-Respondent,

v.Jeff A. DESANTIS, Respondent-Appellant.

A166829

Court of Appeals of Oregon.

Argued and submitted January 16, 2019.

March 11, 2020

Andy Simrin argued the cause for appellant. Also on the brief was Andy Simrin PC.

No appearance for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

This is a civil stalking case involving what the trial court aptly described as "bad blood" between two individuals who, after two of petitioner’s children assaulted respondent, simply could not, as the trial court viewed it, "leave well enough alone."¹ During the year following the assault of respondent by petitioner’s children, the parties’ anger with each other grew and ultimately culminated in respondent following petitioner, stating that he would "get" petitioner, and petitioner seeking a stalking protective order (SPO) against respondent under ORS 163.738. As explained further below, for a trial court to issue an SPO under ORS 163.738, a petitioner must demonstrate that there have been at least two qualifying "contacts" between the respondent and the petitioner. In this case, the trial court determined that there were two such qualifying contacts and issued an SPO.

On appeal, respondent raises two assignments of error, which, given his arguments, he acknowledges present "essentially the same legal question": In his first assignment of error, he contends that the trial court "erred by finding that there were two qualifying contacts for the purposes of the stalking statutes." In his second assignment of error, he contends that the trial court "erred by issuing a permanent stalking protective order." For the reasons that follow, we affirm.

As an initial matter, we note neither party has requested that we review this matter de novo. Because this is not an exceptional case, we will not do so. See ORAP 5.40(8)(c) (providing that the court will exercise its discretion to review de novo "only in exceptional cases"). Therefore, given the trial court’s conclusion that the SPO should issue, "we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the petitioner." Gray v. McGinnis , 277 Or. App. 679, 680, 374 P.3d 941 (2016) (internal quotation marks omitted). Additionally, we review as "a question of law whether the evidence presented was sufficient to support the elements required to obtain an SPO." Id. (internal quotation marks omitted).

BACKGROUND

Before turning to the "contacts" on which the trial court relied when issuing the SPO, we provide a brief summary of the historical "bad blood" between petitioner and respondent to provide appropriate context for those contacts.

Petitioner and respondent are both residents of a small community in Oregon. In January 2017, petitioner’s two sons—who were juveniles at the time—assaulted respondent outside of a restaurant that respondent co-owned, causing what the trial court described as "pretty significant leg injuries" to respondent.² Respondent viewed petitioner’s sons’ assault on him as "life-changing"; as a result of the assault, he had to have steel plates embedded in his leg and ankle, and he suffered ongoing medical concerns as a result of his injuries.

The day after the assault, petitioner went to respondent’s restaurant. Petitioner felt that respondent, and not petitioner’s two sons, was responsible for the assault. After entering the restaurant, petitioner spoke to a co-owner of the restaurant and asked to see respondent, whom petitioner accused of being a "child molester" or "child abuser." Petitioner further stated that he wanted to "kick [respondent’s] ass" and that he should "burn down" the restaurant. He explained to the co-owner that, in his view, had it been the co-owner’s children involved in the assault, the co-owner would also want to burn down the restaurant to "get at the guys who did this to your kids." During the hearing on the SPO, the co-owner described petitioner as having been "seething with palpable anger," and explained that he was concerned petitioner was going to become violent. The co-owner reported the incident to the police and to respondent’s wife.

Petitioner’s sons’ assault of respondent resulted in the state filing delinquency petitions to bring petitioner’s sons within the jurisdiction of the juvenile court. At some point during the pendency of those proceedings, respondent obtained copies of petitioner’s sons’ school records and contacted an individual employed by the Oregon Youth Authority (OYA) regarding those records. The OYA employee was concerned by respondent’s possession of the records and, eventually, an attorney for one of petitioner’s sons was informed that respondent had obtained the school records. The attorney informed petitioner.

In the summer of 2017, respondent was arrested for allegedly assaulting a private investigator who was involved in one of petitioner’s sons’ juvenile court cases. Respondent was charged with assault.³ Petitioner believed that respondents’ alleged assault on the private investigator was severe enough to cause the private investigator to be "put * * * in the hospital."

Following respondent’s arrest and charges being brought against him related to the alleged assault of the private investigator, petitioner obtained and distributed copies of the arrest report and criminal complaint related to the alleged assault at locations around petitioner and respondent’s community—for example, at a tire store, a grocery store, and the post office—as well as to individuals in petitioner’s and respondent’s community.⁴ Respondent was aware of petitioner’s distribution efforts. Respondent asked local police to speak with petitioner about distributing the documents and request that petitioner stop doing that, but, nevertheless, petitioner persisted in distributing them. The trial court characterized petitioner’s distribution campaign as "inappropriate."

Additionally, in the summer of 2017, petitioner and respondent were driving in opposite directions in the downtown of their community. Though petitioner had the right of way, respondent, on seeing petitioner, snapped, and made a quick left turn in front of petitioner, which required to petitioner slam on his brakes to avoid T-boning respondent’s pickup truck. Respondent then started laughing and slowed his truck down so that petitioner could see respondent’s reaction—namely, laughter—to nearly causing a collision with petitioner. The force with which petitioner had to slam on his brakes to avoid hitting respondent caused petitioner physical pain due to preexisting spine and neck injuries.

The first contact on which the trial court based its decision to issue the SPO occurred on September 19, 2017. On that day, respondent observed petitioner driving in the local downtown area, near the local grocery store and tire store in which petitioner had previously distributed the documents related to respondent’s alleged assault on the private investigator. Respondent had been informed by an employee of the tire store that, only a few days before, petitioner and one of his sons were distributing those documents in the tire store. Respondent, angry at petitioner for distributing the documents, pulled his truck behind petitioner’s truck and began to follow closely behind him.

Petitioner observed respondent following closely behind him and believed that respondent wanted to follow petitioner to petitioner’s house. Petitioner also saw that respondent did not take the turn that respondent usually takes when respondent is going to respondent’s house. Petitioner kept driving, followed closely by respondent, out into "farm country." Eventually petitioner, concerned that he was in farm country alone with respondent, turned his car around in a farmer’s field and headed back into town and into the parking lot of the local police department to seek protection. Respondent also turned around and, after doing so, followed petitioner into the police department parking lot. The total distance respondent followed petitioner was approximately 15 miles. Petitioner perceived respondent to be "hunting [him] down."

Petitioner entered the police department, and respondent followed petitioner inside. Once inside the police department, respondent snapped and proceeded to say to petitioner that petitioner’s ex-wife is a "whore" and a "slut," that petitioner’s "fucking kids are bastards," and that his ex-wife had petitioner’s children "through another guy." Petitioner testified that the experience left him "rattled."

The second contact on which the trial court based its decision to issue the SPO occurred on November 19, 2017. On that day, petitioner was waiting in the parking lot of a local restaurant for a pizza to be ready when he heard someone’s voice, turned his head, and saw respondent’s truck "window to window" with his own. The trucks were close enough that petitioner was not sure if he could open his door without dinging respondent’s door. Respondent again snapped and proceeded to call petitioner a "hillbilly" and petitioner’s ex-wife "every nasty thing you can think of." Petitioner responded with "every four-letter word [he] could think of." Petitioner testified that he believed respondent engaged in that exchange because respondent wanted petitioner to instigate a physical fight so that respondent could "be the victim," and that respondent could not "control himself."

Respondent then told petitioner "let’s go," "I’ll fight you right here," and that he wanted to "beat the shit out of" petitioner. He also told petitioner, "If I don’t get you now, I’ll get you later." Petitioner perceived this to be a direct "threat" to harm petitioner and was frightened. Petitioner testified that respondent’s statements left him "rattled." Petitioner also testified that he believed respondent would follow through on his stated intent to "get" petitioner, because respondent had previously...