J. C. H. v. Sievers

484 November 4, 2026 No. 1083 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON J. C. H., Petitioner-Respondent, v. JERRY SIEVERS, Respondent-Appellant. Lincoln County Circuit Court 25SK04083; A189115 Joseph C. Allison, Judge pro tempore. Submitted September 22, 2026. Neil Halttunen and Jarvis, Bridge, Halttunen & Weyer filed the brief for appellant. No appearance for respondent. Before Aoyagi, Presiding Judge, Kamins, Judge, and Pagán, Judge. AOYAGI, P. J. Reversed. Nonprecedential Memo Op: 354 Or App 484 (2026) 485 AOYAGI, P. J. Respondent appeals a stalking protective order (SPO) issued pursuant to ORS 30.866. The trial court relied on two unwanted contacts—respondent’s placement of a GPS tracker on petitioner’s vehicle and an encounter at Boiler Bay State Park—to issue the SPO. Respondent contends that the legal standard for an SPO was not met. Petitioner has not appeared on appeal. As explained below, we reverse the SPO. Legal standard. To obtain an SPO, a petitioner must prove by a preponderance of the evidence that (1) the respondent made two or more unwanted contacts with the petitioner or a member of the petitioner’s immediate family or household within the past two years; (2) each contact gave rise to subjective alarm that was objectively reasonable, with “alarm” meaning “apprehension or fear resulting from the perception of danger,” and “danger” meaning “a threat of physical injury”; and (3) the contacts taken together have given rise to subjective apprehension regarding the per- sonal safety of the petitioner or their immediate family or household member that is objectively reasonable. C. J. R. v. Fleming, 265 Or App 342, 348, 336 P3d 534 (2014) (three requirements); ORS 30.866(1) (quoted definition of “alarm”); S. A. B. v. Roach, 249 Or App 579, 586, 277 P3d 628 (2012) (quoted definition of “danger”). “Under Article I, section 8, of the Oregon Constitution, unwanted contacts that involve speech are sub- ject to a heightened standard of proof.” Jennings v. Gifford, 211 Or App 192, 196, 154 P3d 163 (2007). For speech itself to be a qualifying contact, it must be a threat that “instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999). Analysis. We “review the trial court’s factual find- ings for any supporting evidence and its legal conclusions for legal error.”1 A. Z. v. Lange, 336 Or App 652, 653, 562 P3d 647 (2024) (internal quotation marks omitted). Here, 1 We have discretion to conduct de novo review, ORS 19.415(3)(b), which we exercise only in “exceptional cases,” ORAP 5.40(8)(c). Respondent has not requested de novo review, and we do not choose to provide it. 486 J. C. H. v. Sievers as to the facts, we reject respondent’s claim that the trial court improperly relied on hearsay to find that he placed the tracker on petitioner’s vehicle.2 We treat the court’s finding on that issue as binding for purposes of appeal, along with the other express and implied findings. We ultimately agree with respondent, however, that the legal standard for an SPO was not met. Petitioner began dating respondent’s ex-girlfriend, E. At the time, petitioner was the manager of a hardware store and lived above the store. Petitioner met respondent for the first time on July 7, 2025, which was “normal and cordial.” A week later, on July 14, respondent went to the hardware store and tried to buy cement, argued with two employees about the store being out of cement, and sped off at a high rate of speed. (While in the parking lot, respondent spoke with E through the apartment window, but the trial court expressly did not rely on that conversation for pur- poses of the SPO.) Petitioner made a police report, request- ing that respondent be trespassed from the hardware store, and the police contacted respondent to inform him of the situation. Sometime after that—still in July—respondent’s neighbor delivered to petitioner’s apartment a hutch belong- ing to E, which respondent had filled with rotting fish. The court viewed the hutch incident as context for later events but not as a qualifying contact itself, because there was “nothing inherently threatening about that contact.” On August 14, one of E’s friends told petitioner that respondent had admitted to putting the fish in the hutch and that respondent had also asked her husband to install a GPS tracker on petitioner’s car. Petitioner found the GPS tracker on his car and reported it to the police, who removed it. The tracker was found to be associated with respondent’s email address. The police contacted respondent, who denied placing the tracker on petitioner’s car. 2 There are a number of procedural problems with respondent’s claim of evi- dentiary error. Most notably, he did not object in the trial court to the admission of the hearsay evidence, and, on appeal, he has not properly assigned error to any evidentiary rulings, nor has he requested discretionary plain-error review. Moreover, respondent himself relied significantly on hearsay evidence, suggest- ing a strategic reason not to object when petitioner did, which would lead us not to exercise our discretion in any event. Nonprecedential Memo Op: 354 Or App 484 (2026) 487 Three days later, on August 17, as petitioner was exiting the restroom at Boiler Bay State Park, respondent drove up, got out of his vehicle, and approached petitioner, which petitioner “took * * * to be threatening based on the history we had together.” Petitioner ended a phone call, began recording the encounter, and told respondent that he was a joke and a douchebag. The trial court expressly found that respondent did not say anything threatening during the Boiler Bay encounter. Petitioner sought a permanent SPO, which was granted after a contested hearing. The trial court consid- ered every possible contact between the parties and ulti- mately found two qualifying contacts for SPO purposes: the placement of the GPS tracker in July 2025 and the Boiler Bay encounter on August 17, 2025. As to placement of the GPS tracker—which is a crime under ORS 163.715 and thus a “contact” for SPO purposes, see ORS 163.730(1)(g) (“con- tact” includes “[c]ommitting a crime against the other per- son”)—the court reasoned that “tracking somebody so that you know where they are for an unknown purpose is alarm- ing and coercing and would create in a reasonable person a fear for their physical safety generally, even outside a threat being made, given the situation between the parties and the history between the parties.” As to the Boiler Bay encounter, the court reasoned that the parties’ history made it inher- ently alarming for respondent to approach petitioner, even if he just happened to be driving by when he saw petitioner, and even though he did not say anything threatening. The court noted that respondent was “clearly emotionally affected by the fact that his ex-girlfriend is now with somebody else,” had been confronted by police about the GPS tracker, yet “continue[d] to seek out [petitioner] and caused [petitioner] to have to have a conversation with him.” We agree with respondent that, based on the facts found by the trial court, the legal standard for an SPO was not met. Specifically, on this record, the evidence was insuf- ficient to establish two contacts as to which it was objectively reasonable to perceive a threat of physical injury and which, taken together, made it objectively reasonable for petitioner to fear for his personal safety. 488 J. C. H. v. Sievers There is certainly evidence that respondent was upset about E dating someone else (and possibly about peti- tioner calling the police on him), that he harassed petitioner in July 2025 by putting rotting fish in E’s hutch before it was delivered to petitioner’s apartment, and that he placed a GPS tracker on petitioner’s car “for an unknown purpose” in July 2025—an act for which he was later criminally charged. But SPOs are concerned only with threats to physical safety, not “annoyance or harassment” or even criminal conduct that does not involve physical injury or a risk thereof. S. A. B., 249 Or App at 586; see also, e.g., Van Hoff v. Van Hoff, 307 Or App 620, 628, 478 P3d 1012 (2020) (reversing an SPO where the petitioner’s ex-wife’s had broken into his truck and home and had been seen near him with a “crazed smile” but there was a “complete absence of any facts” from which a trier of fact “could infer a risk of physical injury”). It is therefore necessary that the evidence not only establish inappropriate conduct but provide some basis to objectively view that conduct as involving a threat of physi- cal injury. Here, respondent had never acted violently toward petitioner or threatened petitioner with violence, and there was no evidence that he had a history of physical violence toward anyone. The trial court relied heavily on the GPS tracker incident to explain why it viewed the Boiler Bay contact as inherently threatening, despite no threats being made. But, even in context, the trial court erred in conclud- ing that the Boiler Bay incident was a qualifying contact. It may have been ill-advised for respondent to approach peti- tioner, and the contact was certainly unwanted by petitioner, but it was not objectively reasonable to perceive a threat of physical injury, even taking into account the overall situa- tion and the prior incident with the GPS tracker. Reversed.