[DV_listserv] Legal Update

[Domestic Violence issues]

VIOLATION OF A STALKING PROTECTIVE ORDER/CONTEMPT: Letter did not
qualify as an "object" sent to complainant because it was a "written communication."
State v. Meek, 266 Or App __, __ P3d __ (October 29, 2014) (Lane) (AAG Becca
Auten).

The trial court issued a stalking protective order (SPO) against defendant, barring him
from "any contacts" with his ex-girlfriend, M. Defendant then sent a letter to M, apologizing for
any harm he had caused her. As a result, the state charged defendant with violating the SPO and
contempt of court. The original charging instrument alleged that defendant had violated the SPO
by sending a "written communication" to M. The state subsequently filed an amended charging
instrument, alleging instead that defendant had sent an "object" to M's home. When an
individual is charged with violating an SPO by way of written communication, the state must
prove that the individual's conduct "created reasonable apprehension regarding the personal
safety" of the complainant. When an individual is instead charged with violating an SPO by way
of sending an object, there is no "reasonable apprehension" requirement. Here, the state did not
allege or prove that defendant's conduct caused reasonable apprehension. Defendant filed a
motion for judgment of acquittal, arguing that the letter was a "written communication" and that
the state was therefore required to show reasonable apprehension. The trial court (Judge
Josephine Mooney) denied the motion. A jury found defendant guilty of violating an SPO, and
the court found defendant in contempt of court.

Held: Reversed (Haselton, C. J.). [1] Despite the statutory text, "the totality of the
statutory design and the legislative history demonstrates that a 'written communication,' is not an
'object' for purposes of ORS 163.750(1)," the statute governing violation of an SPO. "Thus,
defendant's . . . letter to M and her family was not an 'object' for purposes of the crime of
violating a stalking protective order." Because the state alleged that defendant had delivered an
"object" to M's home and the state did not prove that defendant delivered any item other than the
letter to M's home, the trial court should have granted the motion for judgment of acquittal.
[2] "The same is true with respect to the contempt charge, which, similarly, was predicated
solely on the delivery of an 'object.'"

http://www.publications.ojd.state.or.us/docs/A151149.pdf

Note: The Court of Appeals' reversal of the contempt charge is something of a mystery,
because the definition of "object" that applies to the SPO violation statute does not apply to
contempt-as the state argued in its brief on appeal.

*****CONFIDENTIALITY  NOTICE*****

This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. 

************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20141110/91e7b4bc/attachment.html>