R.L.B. v. Tyler Maudlin

Respondent appeals from the trial court’s entry

of a stalking protective order (SPO). He contends that the

court erred in issuing the SPO, because the contacts upon

which the SPO was based were expressive and none “can be

deemed to be an unequivocal threat of imminent physical

harm.” We agree that the court erred in issuing the SPO

and, therefore, reverse.

Under ORS 30.866(1), a person may obtain an SPO

against another person if:

“(a) The person intentionally, knowingly, or recklessly

engages in repeated and unwanted contact with the other

person or a member of that person’s immediate family or

household thereby alarming or coercing the other person;

“(b) It is objectively reasonable for a person in the victim’s

situation to have been alarmed or coerced by the contact;

and

“(c) The repeated and unwanted contact causes the

victim reasonable apprehension regarding the personal

safety of the victim or a member of the victim’s immediate

family or household.”

“Thus, for an SPO to issue under ORS 30.866, a respondent

must make repeated—that is, two or more—unwanted contacts

with a petitioner.” Tesema v. Belete, 266 Or App 650,

654, 338 P3d 776 (2014). Furthermore, “each ‘contact,’ individually,

must give rise to subjective and objectively reasonable

alarm or coercion.” Reitz v. Erazo, 248 Or App 700, 706,

274 P3d 214 (2012). “[T]he contacts, cumulatively, [also]

must give rise to subjective apprehension regarding the

petitioner’s personal safety or the personal safety of a member

of the petitioner’s immediate family or household, and

that apprehension must be objectively reasonable.” Blastic v.

Holm, 248 Or App 414, 418, 273 P3d 304 (2012).

“Expressive contacts are those that involve speech,

either oral or written.” Christensen v. Carter/Bosket, 261 Or

App 133, 140, 323 P3d 348 (2014). An SPO may be based

on expressive “contacts only if the contacts express a threat

that ‘instills in the addressee a fear of imminent and serious

personal violence from the speaker, is unequivocal, and is

550 R. L. B. v. Maudlin

objectively likely to be followed by unlawful acts.’ ” Gray v.

McGinnis, 277 Or App 679, 683, 374 P3d 941 (2016) (quoting

State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999)). Such a

speech-based threat must be “so unambiguous, unequivocal,

and specific to the addressee that it convincingly expresses

to the addressee the intention that it will be carried out, and

that the actor has the ability to do so.” Rangel, 328 Or at 306

(emphasis in original). In other words, expressive conduct

qualifies as a “contact” for purposes of the SPO statute only

if it is a threat that satisfies Rangel’s requirements.

Here, respondent engaged in a number of communicative

contacts with petitioner. He told her that, if she

planned to dress up for Halloween, she should come by his

desk, and then sent her an instant message telling her

about a song he sang for his family. A couple of months

later, respondent told petitioner that her perfume was dangerous

and made him “want to attack someone.” Several

days later, respondent called petitioner in her office, asked

her if she was sick, and said that he thought they “could be

sick together.” She informed him that his statements were

inappropriate.

Although the human resources department at their

office told respondent to have no further contact with petitioner,

the next day he sent petitioner a message saying

he was “beginning to see the light.” The human resources

department again admonished respondent to not contact

petitioner, but, two months later, he sent her several instant

messages. Finally, after another month had passed, respondent

left an unsigned note on petitioner’s desk along with a

music CD. Petitioner sought, and the trial court issued, an

SPO.

On appeal, respondent contends that the evidence

was legally insufficient to establish multiple actionable contacts,

including communicative contacts satisfying Rangel’s

requirements. We agree. Even assuming, without deciding,

that respondent’s conduct in leaving the CD on petitioner’s

desk could, in context, constitute a single actionable noncommunicative

contact, there is no legally sufficient evidence

that any of the remaining contacts—which were indisputably

communicative—constituted “threats” as defined in,

Cite as 283 Or App 548 (2017) 551

and prescribed by, Rangel. Accordingly, the trial court erred

in issuing the SPO.

Reversed.