[DV_listserv] DV-related Legal Update(s)

[Domestic Violence issues]

Legal update from DOJ's Appellate Division:

STALKING: Defendant did not violate SPO by "waiting outside" his child's school
when, after the school day had ended, he pressed a buzzer and waited for about 10
seconds for a school employee to unlock the door to allow him to enter.
State v. MacDonald, 288 Or App 20, __ P3d __ (2017) (Washington) (AAG Dave
Thompson). The court issued a stalking protective order (SPO) that barred defendant
from contact with his ex-wife, including "waiting outside" their daughter's school. But
the SPO did not prohibit his presence at the school. One day, in an effort to contact
school administrators when classes were not in session, defendant stood outside his
daughter's school for about 10 seconds-the amount of time between when he pressed
the school door's buzzer and when a school office assistant remotely unlocked the door to
let him enter. After entering the school, he walked directly to the office where he spoke
with the assistant about putting his name on a list of parents who wished to receive emails
from the school and about accessing the school's student-information base. He had
called ahead, and he was told that he needed to discuss those matters in person. Upon
completing that business-8 to 10 minutes after entering the office-he left the school.
He was charged with violating the SPO under ORS 163.750(1) by unlawfully and
recklessly engaging in conduct prohibited by the order by waiting outside his daughter's
school. At trial, he moved for judgment of acquittal, arguing that nothing in the SPO
prevented him from being present at the school, and that the state had charged the case
based solely on "waiting outside" the school-something that had not occurred as
contemplated by the SPO. The trial court (Judge Kirsten Thompson) denied the motion,
reasoning that the school was "a place that would not be an anticipated location for
[defendant] to go to," and that "waiting, for however brief, to enter into that area was a
waiting at the school." The court found him guilty of the charged offense.
Held: Reversed (DeVore, J.). The trial court should have granted defendant's
motion for judgment of acquittal. [1] Although the term "waiting outside" derives from a
statutory term, see ORS 163.730(3) (defining "contact" for purposes of an SPO to include
"waiting outside the home, property, place of work or school of the other person or of a
member of that person's family or household"), the precise contours of the statutory term
need not be addressed in this case. Whatever "waiting outside" might mean in another
context or SPO, this particular SPO was not intended to prohibit this incidental and
momentary pause that was required for defendant to gain entry to his daughter's school-
a place that defendant was not prohibited from entering when neither his ex-wife or his
daughter was present. "Being at" the school and "waiting outside" the school are distinct
concepts. [2] The evidence of defendant's momentary pause-which was incidental to,
and solely for the purpose of gaining access to the school-was legally insufficient to
prove "waiting outside" the school within the meaning of that term in the stalking order.
http://www.publications.ojd.state.or.us/docs/A160886.pdf

Note: The Court of Appeals noted that its "holding is based on the particular
circumstances of this case and should not be understood to mean that a brief pause-such
as eight to 10 seconds-is necessarily insufficient to constitute 'waiting' in other
circumstances."

SENTENCING-MERGER: A fact that the state must prove to preclude merger
under ORS 161.067(3) is not an "enhancement fact" subject to ORS 136.765(1);
rather, it is a fact that determines the number of convictions that may be entered.
State v. Silas, 288 Or App 93, __ P3d __ (2017) (per curiam) (Multnomah)
(AAG Doug Petrina). Defendant was found guilty on two counts of strangulation,
ORS 163.187(4), and the sentencing court (Judge Cheryl Albrecht) entered a separate
conviction on each. On appeal, he argued that the court erred by not merging the guilty
verdicts because the state had failed to give notice under ORS 136.765 that it intended to
prove that the offenses were separated by a "sufficient pause" to allow the entry of
separate convictions under ORS 161.067(3); he asserted that the federal constitutional
right to jury attaches facts that govern merger determination.
Held: Affirmed. It is not necessary to address whether the jury-trial right attached
to the merger determination because, regardless, a fact that the state must prove to
preclude merger is not a sentence "enhancement fact" under ORS 136.760(2) but instead
a fact that only determines the number of convictions that may be entered.
http://www.publications.ojd.state.or.us/docs/A160837.pdf



Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Cell: 503.932.7482


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