Schiffner v. Banks

DEITS, C. J.,

concurring in part and dissenting in part.

I agree with the majority that only respondent’s December 1998 conduct — waiting and videotaping outside Schiffner’s apartment, driving by Rogers’s house, driving to Schiffner’s apartment in search of Rogers, and waiting until Rogers left Schiffner’s apartment — were “contacts” within the meaning of ORS 163.730(3). I also agree with the the majority that the stalking protective order (SPO) issued to Rogers should be reversed. I disagree, however, with the majority’s conclusion that Schiffner did not experience alarm from the December 1998 contacts as informed by respondent’s later actions. I would accordingly affirm the SPO issued to Schiffner.

The governing statute here is ORS 163.738, which provides, in part:

“(2)(a) * * * The court may enter:
"* * * * *
“(B) A court’s stalking protective order if the court finds by a preponderance of the evidence that:
“(i) 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;
“(ii) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and
“(iii) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal *98safety of the victim or a member of the victim’s immediate family or household.”

I agree with the majority that, under ORS 163.738(2)(a)(B), “there must be a causal relationship between the contact and the alarm or coercion felt by the other person — the alarm or coercion must arise from the contact.” 177 Or App at 92. In my opinion, Schiffner established that causal connection in this case.

The majority acknowledges that “the contexts from which the causal relationship may occur are diverse.” Id. The majority sets out a number of those possible contexts, including “instances * * * where the other person initially believes a contact to be innocuous but, upon obtaining further information about the person initiating the contact or the true nature of the contact itself, later understands the contact in a new light and only then becomes alarmed.” Id. at 93. According to the majority, the evidence that Schiffner presented was insufficient to establish that she was alarmed by the December 1998 contacts when she further understood their nature in light of information she later obtained about respondent. I disagree with that reading of the record.

In my view, the record in this case supports the conclusion that Schiffner was not initially alarmed in December 1998. The record, however, also supports the conclusion that, after Schiffner found out about respondent’s continuing and virulent anger at her, she viewed respondent’s presence outside her house and attempts to videotape her in a new light and was alarmed by them. Schiffner testified that “[a]lmost every morning when I get up before I turn on the lights I look outdoors to see if I can see him outside.” That Schiffner now takes additional precautions based on her apprehension that respondent will repeat the kind of contact in which he engaged in December 1998 indicates to me that it is her knowledge of that contact itself — viewed through the lens of respondent’s later conduct — that caused her alarm.

Schiffner presented sufficient evidence to establish that she experienced actual, reasonable apprehension for her personal safety because of respondent’s December 1998 contacts after she became aware of his later interactions with third parties. Because I would hold that Schiffner established *99actual, reasonable apprehension for personal safety as required by ORS 163.738(2)(a)(B)(iii), I would reach respondent’s argument that Schiffner’s alarm was not objectively reasonable as required by ORS 163.738(2)(a)(B)(ii). ORS 163.738(2)(a)(B)(ii) requires that it be “objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact” before a stalking protective order may issue. “Alarm” is defined to mean “to cause apprehension or fear resulting from the perception of danger.” ORS 163.730(1). We have construed “danger” to involve a reasonable apprehension of physical harm. Delgado v. Souders, 146 Or App 580, 587, 934 P2d 1132, rev allowed 326 Or 43 (1997). The question is not whether any of us would have felt apprehension or fear from the perception of danger of physical harm as a result of respondent’s December 1998 contacts. The question is whether Schiffner’s alarm was objectively reasonable.

That question must be answered in light of the surrounding circumstances that make up a victim’s “situation.” ORS 163.738(2)(a)(B)(ii). In assessing whether a petitioner’s alarm is objectively reasonable, we must consider contacts both collectively and in the context of the parties’ relationship and other circumstances known to the petitioner. See Boyd v. Essin, 170 Or App 509, 518, 12 P3d 1003 (2000), rev den 331 Or 674 (2001). In Boyd, we stated that contacts that might appear innocuous when viewed in isolation may take on a different character when viewed in the context of other behavior by a respondent. Id. See also Weatherly v. Wilkie, 169 Or App 257, 263, 8 P3d 251 (2000) (context of the parties’ history may give contacts “added import or ominous meaning”). Viewed in context, the alarm experienced by Schiffner was objectively reasonable. She knew that respondent was angry at her because he believed that the affair had caused Schiffner to pass him over for a promotion. He had been upset enough about that incident to file a grievance. She also knew that he had a permit for a gun.

In my opinion, the lapse of time between the contacts and the filing of the stalking petition supports, rather than undercuts, the reasonableness of Schiffner’s alarm. That respondent was still angry more than eight months later *100about an incident involving petitioners could cause a reasonable person to be alarmed that respondent was obsessive about what he perceived as unfairness on Schiffner’s part. Several of the third-party witnesses testified that, when respondent approached them, he became upset to the extent that it affected him physically. The third-party witnesses were not close friends of respondent’s. Many were his former coworkers, who indicated that they did not know him well. However, when they ran into him by chance, nearly the first thing he brought up was how angry he was with petitioners. Viewed in that light, an objectively reasonable person who knew what respondent had said and how he had acted to the third-party witnesses could feel a level of alarm about the earlier contacts beyond what he or she had felt earlier. Schiffner’s testimony is detailed enough to allow the inference that she was told sufficient substance of the third-party interactions to impute to her knowledge of those aspects of the interactions. I would conclude that Schiffner’s alarm was “objectively reasonable” and, accordingly, would affirm the issuance of Schiffner’s SPO.

Because I would affirm the issuance of Schiffner’s SPO, I would reach respondent’s second assignment of error. In that assignment, respondent contends that the trial court erred in including the following restriction in the SPO: “Communicating with business or government entities with the intent of affecting some right or interest of the petitioner or the person to be protected if other than the petitioner.” Respondent argues that restrictions on contacts with government entities have not been permissible under the stalking statutes since the legislature removed the phrase “or government” from the above quoted definition of contact in 1995.

Respondent is correct. Under ORS 163.738(2)(b), a court may include in the list of types of contact from which a respondent must refrain “all contact listed in ORS 163.730 * * Communicating with a business entity is currently a form of contact listed in ORS 163.730(3)(i), but communicating with a government entity has not been a form of contact since 1995. Or Laws 1995, ch 353, § 1 (deleting phrase “or government” from ORS 163.730(3)(i)); Or Laws 1995, ch 353, § 12 (effective date of act June 14, 1995). The court erred in *101entering an SPO that limited respondent’s contacts with government entities, and I would remand with instructions to correct Schiffner’s SPO to delete the phrase “or government.”

As noted above, I concur with the majority’s disposition as to Rogers’s SPO. Rogers’s testimony is far more cursory. The only indication in the record that Rogers knew what those witnesses had said is as follows:

“[The court]: Mr. Rogers, is your statement similar to these folks here; someone else told you that this man maybe made threats against you?
“A: Yes.”

That testimony is not sufficient to establish, or to allow an inference, that Rogers knew enough of the substance of respondent’s statements to the third-party witnesses to make any alarm he experienced “objectively reasonable.” Accordingly, I concur in the majority’s reversal of the issuance of Rogers’s stalking protective order, but for the reasons discussed above I respectfully dissent from the majority’s reversal of the issuance of Schiffner’s stalking protective order.