author: DEHOOG, P. J.

text:
    In the MATTER OF the MARRIAGE OF Ariana Templeton SCHWARTZ, Petitioner-Respondent, and Cyril Jean-Dominique BATTINI, Respondent-Appellant.
    A162717
    Court of Appeals of Oregon.
    Argued and submitted May 30, 2017. April 3, 2019
    George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.
    Kimberly A. Quach argued the cause for respondent. Also on the brief was Quach Family Law, P.C.
    Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge.

      Powers, J., vice Sercombe, S. J.

   DEHOOG, P. J.

Father appeals a supplemental judgment modifying his parenting time and awarding mother attorney fees. Father argues that the trial court erred in three ways: first, in denying his motion to continue the modification trial; second, in hearing mother's motion after having previously recused itself; and, third, in modifying father's parenting time in the manner that it did. Father further contends that, if we ultimately reverse the judgment at issue, we must also reverse the trial court's associated attorney fee award. Writing only to address father's second assignment of error, we conclude that the trial judge abused her discretion in hearing and deciding mother's motion to modify after having previously recused herself. We therefore reverse the supplemental judgment, including the award of attorney fees, and remand.

The facts relevant to father's second assignment of error are procedural and undisputed. Mother and father married in 2010 and have one joint child, L. The parties separated in 2013, and, following dissolution proceedings in 2015, the trial court entered a judgment dissolving the parties' marriage and establishing custody and parenting time as to L. Through multiple motions to modify and related appeals, the court's various custody and parenting time rulings in this case have been the subject of ongoing proceedings since the parties separated in 2013; those proceedings include a motion to modify parenting time that father filed after taking the present appeal.

Father's appeal arises from a June 15, 2016, hearing on a motion to modify parenting time filed by mother in January 2016. However, because, on March 7, 2016, after ruling on mother's separate but related immediate danger motion, the trial judge made certain statements that bear on this appeal, we include those statements in our discussion. Specifically, at the conclusion of the March 7 hearing, upon recusing herself, sua sponte , from all further proceedings in the case, the trial judge gave the following explanation:

"I'm going to recuse myself from hearing the modification. I don't believe anything Father says. He is not credible to me. He lied under oath. He has demonstrated a disregard of Court orders.
"* * * * *
"I'm basically disregarding [father's testimony] because he has absolutely no credibility with me at this point, which is why you folks need to get someone else to hear this modification because it would be inappropriate for me to hear it, because anything he says I'm not going to believe.
"* * * * *
"I am going to let Judge Rasmussen know that I can't hear any more of this because it would be unfair to Father at this point since I don't believe what he has to say."

On June 15, however, despite the earlier decision to recuse herself, the trial judge proceeded with the scheduled hearing on mother's motion to modify. By then, the trial court had granted a motion to withdraw filed by father's attorney on May 9, and had denied father's May 25 motion to continue the modification hearing, which father had filed due, in part, to the withdrawal of his attorney. Father, who remained unrepresented as of June 15, did not appear at the modification hearing in person or by telephone. Mother testified in support of her proposed parenting-time provisions in the course of presenting a prima facie case for modification; the judge also relied on findings that she had made in prior hearings, which included extensive findings regarding father's credibility.

The trial judge provided the following rationale for proceeding with the hearing and effectively vacating the earlier decision to recuse herself:

"Last time we were here-I think it was last time. It might have been the time before that. I think it was last time-it was in closing argument, and I indicated that I would not hear this case further, meaning the parenting-this case, had there been a contest, meaning had [father] shown up, because I don't believe anything [father] says.
And it wasn't because I didn't think that I could rule fairly. I think he's earned my lack of trust in him. I've seen him multiple times.
"And certainly in other counties where a family-a family judge is assigned to the family, it's probably not uncommon at all for that judge to make-have drawn conclusions about people over the course of the multiple times that they show up.
"I was trying to actually do [father] a courtesy of-because I am concerned sometimes that people think the judge just has it out to get them, and I wanted him to have the opportunity to present his case and testify without a judge already having decided that he's not trustworthy and let the judge hear that. But he chose not to come today. And it makes no sense to have another judge have to weigh[ ] through all the considerable information in this case.
For instance, I don't have to read all the things that [mother] just put on the record because I was actually there. I actually wrote most of these opinions and I heard most of this testimony.
"So I just want to clarify that in case there's any question that I should not be hearing this in the first place. It's a prima facie case. [Father] has chosen not to testify. And I have, of anyone in this courthouse, the greatest command of the very complicated series of events that has taken place. And as I said, in other counties, it would be just as a matter of course that the same judge would hear this."

Following the hearing, the trial court entered a supplemental judgment modifying the parenting plan in accordance with mother's requests. The court also awarded attorney fees in favor of mother. Father appeals.

On appeal, father contends that the trial judge abused her discretion in proceeding to hear mother's motion after having concluded that she could not be fair to father. Mother's initial response is that father did not preserve this assignment of error and that any error by the court is not plain error. Like the trial judge, mother notes that, given father's absence at the modification hearing, the court was not called upon to assess his credibility and, as the judge observed, proceeding with the hearing promoted judicial efficiency. Accordingly, mother argues, the judge did not plainly err in hearing the matter herself. Mother additionally argues that, even if the court did plainly err, we should not exercise our discretion to correct the error. In making that argument, mother appears to contend that the trial judge's ultimate ruling was inevitable, given the credibility and other determinations that she had made at earlier hearings in which father had participated.

As to the merits of father's appeal, mother substantially relies on the trial judge's explanation for proceeding despite the earlier recusal, namely, that she would not be called upon to decide father's credibility anew; that the judge believed that she could be fair now that father was not present; and that she would be ruling largely on the basis of matters litigated and decided at earlier hearings. For the reasons that follow, we reject that reasoning and agree with father that the trial judge abused her discretion when she proceeded to hear mother's motion.

We begin by addressing preservation. Father acknowledges that, because he was neither personally present nor represented at the time of the modification hearing, he did not object to the trial judge's decision to hear mother's motion after she had recused herself. And, although father does not expressly concede that his second assignment of error is therefore unpreserved, he appears to contend that the trial court plainly erred and that we should review this assignment on that basis. Mother, on the other hand, views father's acknowledgment that he did not object to be a concession that this assignment is unpreserved and, as noted, argues that the trial court did not plainly err. Mother further contends that, even if we conclude that the trial court plainly erred, we should not exercise our discretion to correct that error.

Whether a matter is preserved for appeal presents a question of law. Before deciding that question, however, we must consider whether father was required to preserve his second assignment of error under the circumstances of this case. That is, although we typically will not review unpreserved assignments of error unless we find plain error, that limitation does not apply if ordinary preservation principles do not apply. State v. Baskette , 254 Or. App. 751, 753, 295 P.3d 177 (2013) (citing Peeples v. Lampert , 345 Or. 209, 220, 191 P.3d 637 (2008) ("In some circumstances, the preservation requirement gives way entirely, as when a party has no practical ability to raise an issue.")).

Here, in arguing that we should exercise our discretion to correct the assigned error, father notes that he had no reason to believe that this judge would proceed to hear his case once she had expressly determined that she was required to recuse herself. We agree. Furthermore, in our view, that circumstance controls the preservation issue. In ruling that she would proceed to hear mother's modification request, the trial judge repeatedly observed that father had evidently chosen not to be present for the June 15 hearing. Mother quotes those observations in her preservation argument. Although mother's purpose in quoting those passages is not entirely clear, we reject any implication that, because father could have objected to that ruling if he had been present for the hearing, his absence precludes him from asserting that, as a practical matter, he could not have raised the issue before the trial court. At the March 7 hearing, the judge had stated unequivocally that she would not hear the modification proceeding. Thus, even disregarding father's motion to continue and supporting declaration (in which he expressed his desire to personally attend the hearing and explained why he could not do so), we conclude that father had no practical ability to raise the issue he now assigns as error. That is, where a trial judge has repeatedly indicated, without qualification, that she will not hear a party's case because she cannot be fair to that party, we will not penalize the party for having not anticipated that the judge would reverse herself on her own motion and without notice to that party. And, where, as here, a court pursues that course of action when a party is not present, ordinary preservation principles must, as a practical matter, give way. See Peeples , 345 Or. at 220, 191 P.3d 637 (noting that preservation is ultimately a practical consideration). Accordingly, father is not required to establish plain error for us to review his second assignment of error.

Turning to the merits of father's argument, we conclude that the trial judge abused her discretion in proceeding to hear father's case. Cf. Pinnell v. Palmateer , 200 Or. App. 303, 310, 114 P.3d 515 (2005), rev. den. , 340 Or. 483, 135 P.3d 318 (2006) (noting that we review the denial of a motion to recuse for an abuse of discretion).

In support of his argument, father relies on a provision of the Oregon Code of Judicial Conduct (CJC), Rule 3.10, which provides, in part:

"(A) A judge shall disqualify himself or herself in any proceeding in which a reasonable person would question the judge's impartiality, including but not limited to the following circumstances:
"(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer * * *."

Father observes that, "[a]ccording to the Supreme Court, the rule governs both actual bias and perceived bias." See In re Schenck , 318 Or. 402, 407, 870 P.2d 185, cert. den. , 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994) (stating that, "not only the fact but also the appearance of impartiality are the very currency of judicial legitimacy"); see also State v. Langley , 363 Or. 482, 499-501, 424 P.3d 688 (2018) (considering whether trial judge was disqualified from presiding over defendant's trial due to actual or apparent bias). Here, echoing the language of Rule 3.10(A)(1), father argues that, whether or not the trial judge's rationale for recusing herself still applied once she no longer had to consider his testimony, that change in circumstance was ultimately inconsequential under the rule-that is, " 'a reasonable person' would still question the judge's ability to act impartially." Thus, father argues, the trial judge abused her discretion when she heard mother's motion to modify. We again agree with father.

In reviewing the trial court's decision to proceed for abuse of discretion, the term " '[d]iscretion' refers to the authority of a trial court to choose among several legally correct outcomes." State v. Romero , 236 Or. App. 640, 643, 237 P.3d 894 (2010). "If the trial court's decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, the trial court did not abuse its discretion." State v. Rogers , 330 Or. 282, 312, 4 P.3d 1261 (2000).

Here, the trial judge's decision to hear mother's modification motion after having recused herself did not produce a permissible, legally correct outcome; as a result, the judge abused her discretion. In reaching that conclusion, we are not suggesting that the trial judge was necessarily required to recuse herself in the first place. As the judge reasoned, trial judges often form opinions regarding the credibility of the parties appearing before the court; if those parties appear repeatedly over the life of a case, those assessments might well affect the court's subsequent, credibility-based determinations. Yet, we are aware of no provision of the judicial code or any other source of authority that would compel a court in those circumstances to recuse itself. Simply put, making credibility determinations is part of the judicial function, and the fact that a trial court comes to distrust a party's evidence over the course of a hearing, trial, or case does not suggest that the court cannot fairly decide the matter-dispassionately deciding the weight to give competing evidence is the very essence of a fair adjudication. Thus, even though, under Rule 3.10 of the judicial code, a judge must recuse himself or herself if the judge has developed "a personal bias or prejudice concerning a party," it does not necessarily follow that a court cannot fairly hear a case to conclusion if, in the proper course of the proceedings, the court develops a negative opinion of one party's credibility.

In this case, however, our focus is not on the trial judge's initial decision to recuse herself; rather, we consider only whether the judge abused her discretion by effectively vacating that earlier decision. That does not mean that the words that the judge used to convey the decision to recuse herself have no bearing on our assessment. For two reasons, those words are both relevant and determinative. First, the judge not only said that she found father to be unworthy of belief, but also that she would no longer be able to hear anything that he had to say:

"I'm basically disregarding [father's testimony] because he has absolutely no credibility with me at this point, which is why you folks need to get someone else to hear this modification because it would be inappropriate for me to hear it, because anything he says I'm not going to believe .
"* * * * *
"I am going to let Judge Rasmussen know that I can't hear any more of this because it would be unfair to Father at this point since I don't believe what he has to say."

(Emphases added.) In recognizing that she had closed her mind to father's testimony, the trial judge effectively conveyed that she would be prejudging one side of a contested proceeding. As a result, the judge went beyond mere candidness regarding her assessment of father's credibility and acknowledged that any contested matter she heard involving father-or at least any matter involving father's testimony-would be a one-sided affair.

The second reason the trial judge's words are particularly significant is that they expressly conveyed that, as a result of the judge's prejudgment of anything father might say, she could not "hear any more of [the case] because it would be unfair to Father at this point * * *." (Emphasis added.) Thus, even if the trial court's initial assessment of father's credibility did not constitute "bias or prejudice" within the meaning of Rule 3.10 of the judicial code, the court's recognition that it could no longer be fair to father essentially acknowledged that bias or prejudice. And, as the trial judge recognized, at that point it was therefore appropriate for her to recuse herself under the rule, which, as noted, provides, in relevant part, that a "judge shall disqualify himself or herself in any proceeding in which * * *

[t]he judge has a personal bias or prejudice concerning a party * * *." CJC, Rule 3.10(A)(1).

Moreover, as father emphasizes, the judge's subsequent explanation of her decision to hear the matter despite her earlier recusal did not ameliorate that concern. Although there is a logical appeal to the judge's reasoning-she was only biased against father's testimony, not father himself, therefore she could fairly hear his matters if he did not testify-that explanation does not wholly address the judicial code's concerns. That is, however logically sound that rationale may appear to the legally trained, it made too fine a distinction, given the rule's "reasonable person" standard. In our opinion, a reasonable person would view the judge's comments on March 7 as conveying that she had closed her mind to father's case, regardless of whether father testified further at the June 15 hearing. As a result, even if the judge had, in her view, regained the ability to fairly decide father's case, "a reasonable person * * * would [continue to] question the judge's impartiality" toward father. CJC, Rule 3.10(A).

Because the trial judge's decision to proceed was based on her mistaken understanding that father's absence meant that she was not disqualified from hearing the modification proceeding, that decision constituted an abuse of discretion. As we did in Lamonts Apparel, Inc. v. SI-Lloyd Associates , 153 Or. App. 227, 231, 956 P.2d 1024 (1998) (discussing former recusal provision in the judicial code), we emphasize that we "are not enforcing judicial discipline but determining the correctness of a ruling that the trial court made in a case that is properly before us." Id. at 235, 956 P.2d 1024 (stating that "we are not usurping the Supreme Court's jurisdiction over judicial discipline"). And, as to that question, we conclude that, because the trial court misapprehended the significance of its March 7 statements, its decision to proceed with the June 15 hearing, premised, as it was, on that misapprehension, constituted an abuse of discretion. See State v. Redmond , 295 Or. App. 453, 455-56, 435 P.3d 764 (2018) (quoting State v. Larrance , 270 Or. App. 431, 440, 347 P.3d 830 (2015) (" 'Here, because the trial court intended to give a lawful sentence, but misapprehended the law and ultimately decided the matter in reliance on that erroneous view of the law, the court abused its discretion.' ")). Accordingly, we reverse and remand the trial court's judgment, including the associated award of attorney fees.

Reversed and remanded.

      Because of our resolution of the second assignment of error, which also addresses the attorney fee issue raised in father's fourth assignment of error, we do not address father's first and third assignments. We further note that a discussion of those issues would not benefit the parties because, since the filing of this appeal, a different judge has heard evidence and entered a new judgment modifying father's parenting time.

      See, e.g. , Schwartz and Battini , 289 Or. App. 332, 410 P.3d 319 (2017).

      Father's motion to continue also explained that he lived in Singapore and was medically unable to make the flight to Oregon at that time; father further contended that he would be unable to effectively represent himself at an evidentiary hearing if he were to appear telephonically. Mother objected to a continuance, and the court denied the motion.

      Although no party appears to have sought to correct the transcript of the modification hearing, the context of the trial court's statements suggest that it actually said that it made "no sense to have another judge" wade through the evidence, rather than "weigh" through the evidence, as the transcript indicates.

      Because the trial judge in this case concluded that her opinion of father's credibility required her to recuse herself from hearing the modification proceeding, we are not called upon to decide exactly when, if ever, such an opinion that develops in the course of a multi-proceeding case might constitute "personal bias or prejudice" that would preclude hearing any further proceedings in that case.


source: Caselaw Access Project

author: TOOKEY, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Nathan Richard PEIRCE, Defendant-Appellant.
    A162930
    Court of Appeals of Oregon.
    Submitted March 23, 2018. April 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Vanessa Areli, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, filed the reply brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan Yorke, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

The subject of this case is a vintage 1985 Suzuki moped. Defendant appeals a conviction for the unauthorized use of that vehicle (UUV). ORS 164.135. On appeal, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on that charge, arguing that "[t]he evidence is insufficient to show that defendant knew that the moped was stolen." We conclude that a rational factfinder could have found that the state proved beyond a reasonable doubt that defendant knew this moped was stolen, and, therefore, the trial court did not err when it denied defendant's motion for judgment of acquittal. Accordingly, we affirm.

When reviewing the denial of a motion for judgment of acquittal, we review the facts in the light most favorable to the state and draw all reasonable inferences in the state's favor to determine "whether any rational trier of fact, accepting reasonable inferences and credibility choices, could have found the essential elements of the crime beyond a reasonable doubt."

State v. Lupoli , 348 Or. 346, 366, 234 P.3d 117 (2010). Additionally, "when, as here, a defendant makes the [motion for judgment of acquittal] at the close of the state's case, 'the appellate court must consider all the evidence and if it is sufficient to sustain the conviction.' "

State v. Bilsborrow , 230 Or. App. 413, 418-19, 215 P.3d 914 (2009) (quoting State v. Gardner , 231 Or. 193, 195, 372 P.2d 783 (1962) ). We present the facts consistently with that standard.

As relevant to this appeal, defendant was charged with UUV. The state alleged that defendant "unlawfully and knowingly took, operated, rode in, exercised control over, or otherwise used a motor vehicle, without the permission of the owner."

At trial, the state called the victim and Deputy Mintier as witnesses on behalf of the state. The victim was the owner of a "vintage" 1985 Suzuki moped that ran "perfectly." When the victim purchased the moped, the victim received service records and multiple bills of sale that documented the previous owners of the moped. In that condition, the moped was worth approximately $ 950 because the moped was titled and street legal. On May 28, 2015, the victim left the state to attend his grandmother's funeral in California. When the victim returned home on June 2, the victim discovered that his moped was missing from his parking spot. The victim immediately reported the moped as stolen because the victim had not given anyone permission to use his moped.

On June 7, Mintier stopped defendant for speeding on a moped. As part of the routine procedure for conducting a traffic stop, Mintier ran the license plate and learned that the license plate came back to the victim's stolen moped. Eventually, Mintier was able to determine that the moped that defendant was riding did not match the make and model of the moped registered to the license plate and that the moped that defendant was riding had not been reported as stolen. Although the moped that defendant was riding had not been reported as stolen, defendant admitted to Mintier that he had switched the license plate that was on the moped that he was riding with the license plate from a moped that was at defendant's home.

When defendant and Mintier arrived at defendant's home, Mintier found the victim's moped with the license plate removed. Defendant told Mintier that he bought the victim's moped off of Craigslist "about a week prior and had no way of contacting the seller." Defendant also stated that he did not have any emails, text messages, or phone call records that would help identify the seller, and that he could not provide the full name of the seller. Defendant produced a "highly suspicious" bill of sale that Mintier said would "set off some alarm bells" if he were purchasing a vehicle. A bill of sale generally has "[t]he full name of the seller, the date of the sale, the agreed price, * * * a statement releasing ownership of the vehicle to the new owner," a "full description of the vehicle, including the VIN number, any license plate information or title information, and contact information * * * for the previous owner and the new owner." Defendant's bill of sale was handwritten on the back of a used 3" x 5" index card, identified the seller only as "Jerry W.," listed an address that did not belong to any structure, did not identify the model of the moped, did not identify the moped's VIN or license plate number, and did not identify the buyer or contain defendant's name or his signature. Additionally, the bill of sale listed the sale price as $ 100, but defendant told Mintier that he purchased the moped for $ 50. Defendant acknowledged to Mintier that $ 50 for this type of moped "seemed very cheap" and that the "bill of sale also looked suspicious." Defendant was arrested for the unlawful use of the victim's moped.

When the moped was returned to the victim, "[t]he ignition had been brute forced * * * so you could start it with any key or anything that was like the shape of a key, a screwdriver, whatever." Additionally, "[t]he kick start magneto was broken and being held up with a bungee cord," the mirrors were missing, the milk crate attached to the back was missing, and the engine had been tampered with so the moped was "going faster than it's supposed [to] legally be allowed to go, and it wasn't getting nearly as good as gas mileage."

At the close of the state's case, defendant moved for a judgment of acquittal, arguing that the state failed to prove that "defendant had actual, real knowledge that he lacked permission of the owner to use or possess" the moped. The trial court denied defendant's motion for judgment of acquittal.

Defendant then called his friend, Reidy, as a witness on his behalf. Reidy and defendant had known each other for 13 years, and they were both "mechanically inclined" and had knowledge about mopeds. During the time that Reidy had known defendant, Reidy had been convicted of unauthorized use of a vehicle, possession of a stolen vehicle, felon in possession of a firearm, second-degree forgery, and possession of a controlled substance. Reidy testified that he came into possession of the victim's moped when Reidy was "hanging out" with a woman that Reidy "was kind of * * * friends with at the time," and they "went over [to] a guy's house [that] she knew," Robert. Reidy testified that he purchased the moped from Robert for $ 100, called defendant on defendant's cell phone, and sold the moped to defendant "a couple of hours" later for "a couple hundred dollars." Additionally, Reidy testified that he received the same suspicious bill of sale from Robert and that he gave the bill of sale to defendant. As noted, the bill of sale listed "Jerry W." as the seller, not Robert, and Reidy's name is not on the bill of sale. Shortly after defendant was arrested for using the victim's moped, Reidy found out, but Reidy did not contact the police or the district attorney's office to "say there's been a misunderstanding" because the moped "was bought fair and square."

During his closing argument, defendant reiterated his contention that the state had failed to prove that defendant "had actual knowledge that this moped was stolen." The jury found defendant guilty of one count of UUV.

On appeal, defendant assigns error to the trial court's denial of his motion for judgment of acquittal, reprising his argument that the state failed to prove that defendant actually knew that the moped was stolen. See State v. Bell , 220 Or. App. 266, 269, 185 P.3d 541 (2008) (because the indictment for UUV alleged that the defendant acted knowingly, "the state was required to prove that [the] defendant actually knew that the car was stolen" (emphasis in original)). Defendant compares the circumstances of this case to Bell , 220 Or. App. 266, 185 P.3d 541 ; State v. Shipe , 264 Or. App. 391, 332 P.3d 334 (2014) ; and State v. Korth , 269 Or. App. 238, 344 P.3d 491 (2015), cases in which we concluded that the evidence was insufficient to support an inference that the defendants knew that the vehicles they were using were stolen. In response, the state contends that those cases are distinguishable "because this case involves more and different circumstantial evidence that, when viewed together, would allow a factfinder to conclude beyond a reasonable doubt that defendant knew the vehicle was stolen."

"Thus, we must determine whether, viewing the evidence in the light most favorable to the state, a rational factfinder could have found that the state proved beyond a reasonable doubt that defendant knew the [moped] was stolen." Korth , 269 Or. App. at 243, 344 P.3d 491. "The state may prove a defendant's knowledge with circumstantial evidence and reasonable inferences flowing from that evidence." Id ."However, an inferred fact 'must be one that a rational factfinder can be convinced follows beyond a reasonable doubt from the underlying facts.' " Id . (quoting Bell , 220 Or. App. at 270, 185 P.3d 541 ). "Evidence is 'insufficient to support an inference when the conclusion to be drawn from it requires too great an inferential leap-that is, when the logic is too strained,' or when it 'requires the stacking of inferences to the point of speculation.' " Id . (quoting State v. Bivins , 191 Or. App. 460, 466-68, 83 P.3d 379 (2004) ). "Whether the evidence supports a particular inference is a question of law." Id .

Our opinions in other UUV and possession of a stolen vehicle (PSV) cases are instructive and, in light of the parties' arguments, we begin our discussion with an overview of our opinions in Bell , Shipe , and Korth .

In Bell , the defendant was convicted of UUV and PSV after he was stopped while driving a car that had been reported stolen. 220 Or. App. at 268, 185 P.3d 541. During a bench trial, the officer testified that the defendant had told him that he had rented the car from a stranger for $ 50, but the "defendant did not explain how or when the vehicle was to be returned to its owner," and the officer "had not asked [the] defendant about those matters." Id . Additionally, the defendant had the proper car keys, and the car itself had not been "hot-wired," showed no signs of vandalism, and had Oregon license plates. Id .

On appeal, the state argued that, although there was "no evidence of tampering or foul play," the evidence that the defendant had rented the car from a stranger for $ 50, had no way to re-contact the stranger, no deadline to return the vehicle, and no location to deposit the vehicle, led "to reasonable inferences that [the] defendant both knew the car was stolen and knew that he did not have permission from the owner to operate the car." Id . at 271, 185 P.3d 541. We noted that, even "[a]ssuming for the sake of argument that such evidence would permit the inference that the state suggest[ed]," the state had failed to elicit any evidence "one way or the other" about whether the defendant had a way to recontact the person who rented the car to him, whether the defendant had a deadline to return the car, or whether the defendant was told to return the car because the officer did not ask the defendant about those matters. Id . at 271-72, 185 P.3d 541. We explained that "[t]he state cannot prove its case by relying on inferences to be drawn from an absence of evidence that it failed to establish at trial." Id . at 272, 185 P.3d 541. We reasoned that the remaining evidence that the defendant had pulled over when he was followed by an officer, that he was driving a car that had been reported stolen, and that he told the arresting officer that he had rented the car for $ 50 was "insufficient to permit a finding beyond a reasonable doubt that [the] defendant actually knew that the car was stolen and that he did not have the consent of the owner to drive it." Id . (emphasis in original). Accordingly, we concluded that the trial court erred when it denied the defendant's motion for judgment of acquittal. Id .

Similarly, in Shipe , the defendant was convicted of UUV after he was found sitting in the driver's seat of a stolen pickup truck in the parking lot of an apartment complex. 264 Or. App. at 392-94, 332 P.3d 334. In that case, the evidence, viewed in the light most favorable to the state, was that the defendant drove a stolen truck containing stolen property, bolt cutters, a locked case labeled "crime committing kit," and baggies of methamphetamine matching those found on the defendant. Id . at 397, 332 P.3d 334. Additionally, the truck owner's registration and insurance card were missing, the interior and exterior of the truck had "considerable" damage, and the ignition was in working order, but the key that the defendant used to operate the truck did not belong to the owner. Id . at 393, 397, 332 P.3d 334. Finally, the defendant told the arresting officer that he had gotten the truck from someone named "Richey," but he had actually gotten the truck from someone named "Smith," who had stolen at least one vehicle before. Id . at 397, 332 P.3d 334.

On appeal, the state argued that that evidence was sufficient to support a determination that the defendant actually knew the truck was stolen. We noted that, although the key did not belong to the truck's owner, there was no evidence that the key looked "suspicious" or that the defendant knew that the key did not belong to "anybody who was authorized to use the truck." Id . at 397, 332 P.3d 334. Additionally, there was no evidence regarding the extent of the damage to the truck, or whether that damage "would have suggested that the truck had been stolen" (for example, damage to the windows, locks, ignition, or wiring). Id . at 397-98, 332 P.3d 334. We also observed that the absence of the owner's registration and insurance card did not support a determination that the defendant knew the truck was stolen because there was no evidence that the defendant was aware of the missing registration and insurance. Id . at 398, 332 P.3d 334. With respect to the stolen property, we observed that, although those items in the truck may have supported an inference that the defendant knew that that property was stolen, particularly given the presence of the bolt cutters and the "crime committing kit," the state failed to explain how "the presence of stolen property within the truck would have indicated to [the] defendant that the truck itself was stolen." Id . (emphasis in original). Finally, regarding the defendant's lie to the officer about who had given him the truck, we stated that, "[a]lthough it may be reasonable to infer that [the] defendant lied to protect Smith in relation to some wrongdoing"-"particularily given the presence of apparently stolen documents, drug residue, and a 'crime committing kit' inside the truck"-"it does not follow, as a matter of logical probability, that [the] defendant lied because he knew that Smith had stolen the truck ." Id . at 398-99, 332 P.3d 334 (emphasis in original). Accordingly, we concluded that the trial court erred when it denied the defendant's motion for judgment of acquittal. Id .

Likewise, in Korth , the defendant was convicted of UUV after he was pulled over driving a stolen pickup truck. 269 Or. App. at 239, 344 P.3d 491. In that case, the evidence, viewed in the light most favorable to the state, was that the defendant was stopped while driving a stolen truck and "told officers a detailed, 'implausible' story about borrowing the truck from 'Dave,' a 'pretty transient' 'friend of a friend' in Salem whom the defendant had met only 'about a week and a half to two weeks' prior to his arrest." Id . at 245-46, 344 P.3d 491. Additionally, the defendant told the officers that "he planned to return the truck later that day, but he did not know 'Dave's' last name, address, or telephone number." Id . at 246, 344 P.3d 491. The defendant had also lied to the officers about being in the back of the truck where "jiggle keys" were found, in plain sight, next to the defendant's belongings. Id . Despite the presence of "jiggle keys," the defendant used a valid key to operate the truck and, when the truck was returned to the owner, the only damage that the owner reported was a dent in the truck's hood. Id .

On appeal, we began by noting that, neither the "defendant's 'implausible' story about borrowing the truck from 'Dave,' " nor the "evidence that [the] defendant lied to cover up 'some wrongdoing,' " were, standing alone, "sufficient to support a reasonable inference that [the] defendant actually knew that the truck was stolen." Id . (quoting Shipe , 264 Or. App. at 398-99, 332 P.3d 334 (emphasis in Shipe )). Therefore, we stated that the question reduced to whether a factfinder could reasonably infer from the proximity of the "jiggle keys" to the defendant's belongings in the back of the truck-"in addition to [the] defendant's implausible story about borrowing the truck from 'Dave' and his lies about being in the back of the truck and owning any of the property in the back of the truck"-that the "defendant knew that the truck was stolen." Id . (emphasis in original).

We explained that, although a factfinder could reasonably infer that the "defendant had knowledge of 'some wrongdoing, it d[id] not follow, as a matter of logical probability,' that [the] defendant knew that the truck was stolen." Id. (quoting Shipe , 264 Or. App. at 398, 332 P.3d 334 (emphasis in Shipe )). We reasoned that, although it might be logical to infer from that evidence that the defendant was trying to hide his knowledge of the "jiggle keys" from the officers because the defendant knew that the person he had gotten the vehicle from was involved in the theft of vehicles, that evidence did not indicate that the defendant knew "that this truck was stolen" because the defendant operated the truck with a valid key, and not the "jiggle keys" in the back of the truck, "and there was no other evidence that the appearance of the truck * * * would have indicated that the truck had been stolen (such as evidence of damage to the truck's locks, windows, or ignition)." Id . at 247, 344 P.3d 491 (emphasis in original). Based on the evidence presented at trial, we concluded that the inference that the defendant actually knew that the truck was stolen " 'requires the stacking of inferences to the point of speculation.' " Id . (quoting Bivins , 191 Or. App. at 468, 83 P.3d 379 ). Accordingly, we concluded that the trial court erred when it denied the defendant's motion for judgment of acquittal. Id .

In this case, the evidence is qualitatively different than the evidence in Bell , Shipe , and Korth . Here, there is evidence of "tampering" and "foul play" that is "relevant to defendant's knowledge" that this moped was stolen. Bell , 220 Or. App. at 271-72, 185 P.3d 541.

First and foremost, in this case, there is the type of evidence that we have consistently found was lacking in our other UUV and PSV cases-something about the physical appearance of the vehicle that would have indicated to the defendant that the vehicle had been stolen. See Korth , 269 Or. App. at 247, 344 P.3d 491 (the defendant operated the truck with a valid key and there was nothing about the appearance of the truck that would have indicated to the defendant that it had been stolen, "such as evidence of damage to the truck's locks, windows, or ignition"); Shipe , 264 Or. App. at 393, 397, 332 P.3d 334 (noting that the truck's "ignition was in working order" and the defendant did not operate the truck with a key that appeared "suspicious," and that the record did not include any "evidence about whether the widows, locks, ignition, or wiring had been damaged or tampered with at all, much less in a way that would have been noticed by anybody using the truck"); Bell , 220 Or. App. at 271, 185 P.3d 541 (noting the absence of evidence of "tampering or foul play" with the vehicle);

State v. Shuneson , 132 Or. App. 283, 286, 888 P.2d 90 (1995) (observing that there "was nothing unusual about the appearance of the vehicle, such as hot wires, that would have indicated to defendant that it was stolen").

Here, as noted above, defendant was mechanically inclined and, when the victim's moped was returned by the police, "[t]he ignition had been brute forced * * * so you could start it with any key or anything that was like the shape of a key, a screwdriver, whatever." It is logical to infer from that evidence that defendant either bought the moped with a tampered ignition, or that defendant "brute forced" the ignition because he did not have a valid key. The "brute forced" ignition on the moped is the type of obvious damage that would indicate to defendant that this moped was stolen. See Korth , 269 Or. App. at 247, 344 P.3d 491 (noting that evidence of obvious damage to the ignition would indicate to a user of the vehicle that the vehicle is stolen).

Moreover, the removal of the license plate from the victim's moped, along with other accessories (the mirrors and milk crate), indicates that defendant altered the moped's appearance because he knew that the moped was stolen. Although defendant's choice to ride another moped with that stolen license plate could suggest that defendant did not know that the moped was stolen, the fact that that decision ultimately proved to be unwise does not mean that that is the only logical inference that could be drawn. It is also reasonable to infer from that evidence that defendant unlawfully switched the license plate and altered the appearance of the victim's moped in an effort to conceal the true identity of the victim's moped. See State v. Smith , 261 Or. App. 665, 674, 322 P.3d 1129, rev. den. , 355 Or. 880, 333 P.3d 334 (2014) (in "the event that historical facts give rise to more than one reasonable inference, the jury must decide which of the permissible inferences to draw" (internal quotation marks omitted)); State ex rel. Juv. Dept. v. Hal , 168 Or. App. 76, 78-79, 7 P.3d 535 (2000) (driver of a stolen vehicle "at least had reason to believe" that the vehicle was stolen, in part, because the interior had been stripped and the vehicle had out-of-state license plates); ORS 803.550(3)(a) (a "registration plate is illegally displayed" if the plate "[i]s displayed on a vehicle other than the vehicle for which the plate was issued").

Second, in this case there is evidence of "foul play" surrounding defendant's purported purchase of the victim's moped that is relevant to determining whether defendant knew that the moped was being used without the victim's consent. Bell , 220 Or. App. at 271, 185 P.3d 541. Here, the "highly suspicious" bill of sale is also evidence that would have indicated to defendant that he was using the moped without the owner's consent. As described in greater detail above, despite defendant's knowledge about mopeds, the bill of sale lacked any of the information that is generally in a bill of sale, including any way to identify this moped, valid contact information for the seller, "Jerry W," or any information about the buyer. Furthermore, defendant acknowledged that the bill of sale "looked suspicious" and that $ 50 "seemed very cheap" for a moped that was actually worth approximately $ 950. Defendant's acknowledgement that $ 50 was a "very cheap" price for the victim's moped and that the bill of sale was "suspicious," supports a logical inference that defendant knew that this moped was stolen. See Shipe , 264 Or. App. at 397-98, 332 P.3d 334 (noting that there was no evidence that the key that the defendant used to operate the vehicle looked "suspicious," and that the absence of the owner's vehicle registration or insurance could indicate that the defendant knew that the vehicle was stolen if the defendant was aware of the missing registration and insurance card).

Unlike in Korth and Shipe , where there was evidence of drugs, stolen property, "jiggle keys," and a "crime committing kit"-evidence that was unrelated to any wrongdoing with the stolen vehicles in those cases-here, the "brute forced" ignition, the removal of the license plate, the "highly suspicious" bill of sale, and the "very cheap" sale price relate to wrongdoing with this moped. See Korth , 269 Or. App. at 246-47, 344 P.3d 491 ("jiggle keys" in the back of a truck supported an inference of "some wrongdoing," but the presence of "jiggle keys" would not have indicated to the defendant that the truck was stolen because the defendant operated the truck with a valid key, and not the "jiggle keys" found in the back of the truck); Shipe , 264 Or. App. at 397-99, 332 P.3d 334 (concluding that it would be illogical to infer that the presence of methamphetamines, stolen property, bolt cutters, and a "crime committing kit" indicated that the defendant knew that the truck itself was stolen). Taken together, the "brute forced" ignition, the removal of the license plate, the alterations to the moped's appearance, the "highly suspicious" bill of sale, and the "very cheap" price would permit a factfinder to logically infer that defendant actually knew that this moped was stolen because that evidence indicates that the moped itself was stolen. See Smith , 261 Or. App. at 674, 322 P.3d 1129 ("A reasonable inference from the historical facts in evidence may permissibly be drawn if there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact." (Brackets and internal quotation marks omitted.)).

Finally, although we have concluded that an implausible story alone is insufficient to prove that a defendant knew that a vehicle was stolen, in this case, we must consider whether a factfinder could reasonably infer from the evidence discussed above-"in addition " to defendant's and Reidy's inconsistent and implausible stories about defendant's purchase of the victim's moped-that defendant knew that the moped was stolen. Korth , 269 Or. App. at 246, 344 P.3d 491 (emphasis in original).

As discussed above, Mintier testified that defendant told him that defendant purchased the victim's moped on Craigslist for $ 50 and did not have any way to contact the seller listed on the "highly suspicious" bill of sale, "Jerry W." However, defendant's friend Reidy, who had multiple convictions for UUV, PSV, and forgery, told a different story when he testified on defendant's behalf. Reidy testified that he had purchased the Moped from Robert for $ 100, not "Jerry W.," called defendant on defendant's cell phone, and then sold the moped to defendant for a couple hundred dollars and gave defendant the "highly suspicious" bill of sale.

In particular, we note that the "highly suspicious" bill of sale from "Jerry W." does not corroborate defendant's or Reidy's account about the sale of the moped. Additionally, Reidy's testimony presented an account about the sale of the moped that was both extrinsically and intrinsically implausible in relationship to defendant's account: extrinsically, because it conflicted with the account that defendant gave to Mintier (with respect to whether defendant purchased the moped on Craigslist and whether defendant knew the seller or how to contact the seller); and intrinsically, because it is reasonable to infer that a person who believed that he or she lawfully purchased the moped would provide the seller's contact information to the police. In other words, Reidy's testimony tilted the balance further in favor of the state because, to believe either defendant's or Reidy's inconsistent accounts, the jury would need to conclude that either defendant or his witness, Reidy, had lied about purchasing the moped. Furthermore, in this case, those lies were not directed at covering up "some [other] wrongdoing" unrelated to defendant's authority to use this moped. Shipe , 264 Or. App. at 398-99, 332 P.3d 334 (emphasis in original). Thus, given Reidy's criminal history of forgery and using and possessing stolen vehicles, along with the "brute forced" ignition, the removal of the license plate, the alterations to the moped's appearance, the "highly suspicious" bill of sale, and the "very cheap" price, it follows, as a matter of logical probability, that either defendant or Reidy, or both, had lied about the sale of the moped because defendant knew that the moped was stolen. The jury, having considered the evidence discussed above, in addition to the implausible and inconsistent accounts about the sale of the moped, could permissibly have found beyond a reasonable doubt that defendant knew that this moped was stolen.

In sum, viewing the evidence as a whole and in the light most favorable to the state, a rational factfinder could have found that the state proved beyond a reasonable doubt that defendant knew the moped was stolen. Accordingly, the trial court did not err in denying defendant's motion for judgment of acquittal for UUV.

Affirmed.

      ORS 164.135(1)(a) provides that "[a] person commits the crime of unauthorized use of a vehicle when" the "person takes, operates, exercises control over, rides in or otherwise uses another's vehicle * * * without the consent of the owner." In cases such as this one, where the state alleges that the defendant acted knowingly, "[t]hat person must know that he or she does not have the owner's consent." State v. Gibson , 268 Or. App. 428, 430, 342 P.3d 168 (2015). In other words, that person must "actually" know that the vehicle is stolen. State v. Korth , 269 Or. App. 238, 242, 344 P.3d 491 (2015).

      In a second assignment of error, defendant argues that the "trial court [plainly] erred when it imposed $ 819 in restitution" for the damage that was caused to the victim's moped while it was stolen. Defendant's second assignment fails to meet the criteria for plain error review because this is not a case where the record "is devoid of any evidence" from which the court could find that defendant's criminal conduct resulted in economic damages to the victim. State v. Martinez , 250 Or. App. 342, 344, 280 P.3d 399 (2012). In this case, there is evidence in the record that supports a logical inference that defendant caused the damage to the victim's moped while he was unlawfully exercising control over the moped. Therefore, the error is not obvious or apparent on this record, and we reject defendant's second assignment of error. ORAP 5.45.

      The "suspicious" bill of sale was entered into evidence as the state's Exhibit 2.

      According to the arresting officer in Korth , " 'jiggle keys' are 'regular old keys that * * * car thieves will file down * * * because if they file [a key] down a certain way, they're able to stick it into the ignition and just jiggle it around and start cars.' " 269 Or. App. at 239 n. 1, 344 P.3d 491 (brackets and second ellipsis in Korth ).


text:
    A. A. C., Petitioner-Respondent, v. John Paul MILLER-POMLEE, Respondent-Appellant.
    A162876
    Court of Appeals of Oregon.
    Argued and submitted April 13, 2018. April 3, 2019
    Michael Vergamini, Eugene, argued the cause and filed the brief for appellant.
    Adam S. Shelton and Arnold Law filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Respondent appeals a stalking protective order (SPO) that the trial court entered against him. On appeal, respondent contends, among other points, that (1) the trial court erred in "finding that objectively non-threatening text messages constituted *** unwanted contact" for purposes of the civil stalking statute, ORS 30.866 ; (2) the record contained insufficient evidence to support the trial court's finding that respondent was "tracking" petitioner's whereabouts; and (3) in any event, "tracking" is not a "contact" sufficient to support entry of an SPO under ORS 30.866. We conclude the trial court did not err and affirm.

"We review the trial court's factual findings for 'any evidence' and its legal conclusions for errors of law." Christensen v. Carter/Bosket , 261 Or. App. 133, 135, 323 P.3d 348 (2014). "As in other equitable proceedings, we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Id. (internal quotation marks omitted). We state the facts consistently with that standard.

Petitioner and respondent were romantically involved from May 2010 until November 2014. During that time, they had a child together, L. Over the course of their relationship, respondent was physically and verbally abusive to petitioner. The physical abuse included, among other things, grabbing and squeezing petitioner's throat, throwing "anything that he could get his hands on" at petitioner-e.g. , shovels, garden pots, and a box of chalk-pushing petitioner to the ground, pushing a large oil heater over onto petitioner's foot, and stomping on petitioner's feet. The verbal abuse included, among other things, threatening that, if petitioner "hurt his feelings," he would "hurt [her] ten times worse," telling petitioner that she was "ugly" and that her "feet were disgusting," and accusing petitioner of being a "whore." Some of respondent's abusive conduct occurred in front of L.

Additionally, during their relationship, respondent tried to exercise control over petitioner. For example, he attempted to control what she wore, to whom she talked, who she was around, and how often she was on her phone. If petitioner did not do what respondent wanted, he would "punish" her by, for example, taking her cell phone, car keys, or money, so that she could not pay bills.

In November 2014, after petitioner and respondent separated, petitioner and respondent met in a parking lot for respondent to return some of petitioner's possessions. When their conversation did not go as respondent had wanted it to go, he "took his body and slammed [petitioner's] body into [petitioner's] car." L was in the backseat of the car when that occurred. During the SPO hearing, petitioner testified that this made her feel "terrified" because (1) respondent had previously "hurt" petitioner and "grabbed her throat" and (2) it occurred in a public place, "in front of people," which demonstrated to petitioner that respondent "had no fear."

Also in November 2014, petitioner filed for and received a temporary restraining order against respondent. In December 2014, respondent and petitioner agreed to a "mutual no contact order."

Respondent, however, did not comply with the terms of the mutual no contact order. Instead, he continued to call petitioner and "say abusive things" to her. He also frequently sent petitioner unwanted and "abusive" text messages. As a result of this conduct, sometime around July 2015, petitioner changed her phone number. She did not give respondent her new phone number.

Subsequently, as described below, respondent began to send petitioner text messages that indicated that he was monitoring petitioner's email communications and tracking her whereabouts.

In July 2015, after petitioner had changed her phone number, she emailed her new phone number to a Department of Human Services caseworker from her personal email account. Petitioner did not share her personal email account with respondent, did not want him accessing her personal email account, and had never given him permission to access her personal email account. Nevertheless, after petitioner emailed her new phone number to the caseworker, respondent began sending text messages to petitioner's new phone number.

In May 2016, after taking L to a soccer clinic, petitioner received a text message from respondent indicating that respondent knew that petitioner had taken L to the soccer clinic and indicating that respondent had pictures of L that were taken during the soccer clinic. This "[r]eally scared" petitioner because she did not "know how [respondent] knew where [she and L] were."

Shortly after receiving the text message from respondent regarding the soccer clinic, petitioner emailed her attorney from her personal email account. Petitioner then received a text message from respondent indicating he had read the email that she had sent to her attorney. In the text message, respondent also accused petitioner of "making up lies," and called petitioner a "liar," a "deadbeat mom," and a "low life." Petitioner was "alarmed" because she did not know how respondent had read the email between her and her attorney.

Also in May of 2016, respondent sent a text message to petitioner asking her what had caused a scar on L's cheek. In actuality, L had the remnants of a temporary tattoo on his cheek. Petitioner was "concerned" and "afraid" because, at the time, respondent did not have visitation with L, and, according to petitioner, respondent would have "had no way of knowing if [L] had anything on his cheek." Petitioner was also "concerned" because (1) she did not know if respondent was following her, or if she and L were being photographed again and (2) respondent had previously "retaliated" against petitioner when he thought L was injured. That retaliation included threatening to hurt petitioner. Petitioner explained during the SPO hearing what frightened her was "mostly the fact" that she did not know how respondent was aware that L had something on his cheek.

Additionally, although the date is unclear from the record, respondent sent a text message to petitioner at the "exact moment" that she was dropping L off at school, asking her to tell L to have a good day. Petitioner did not drop L off at school at the same time every day, and she did not know how respondent would know she was at L's school at that moment. Petitioner testified that respondent also sent her text messages telling her that respondent "knows where [she is] at that time" and "knows everything."

On or about May 20, 2016, petitioner logged into the Find My iPhone application on her cell phone and discovered that both her cell phone and respondent's cell phone were "logged into [petitioner's] email account," which led petitioner to believe that respondent had been tracking her whereabouts using the Find My iPhone application. Petitioner testified during the SPO hearing that, by using her email address and password, in conjunction with the Find My iPhone application, respondent could track the location of petitioner's cellphone. During the SPO hearing, petitioner submitted into evidence a screenshot from her cell phone reflecting both petitioner's and respondent's cell phones listed in petitioner's Find My iPhone application.

On May 28, 2016, petitioner texted respondent, asking that he not contact her. That same day she went to the Eugene Police Department to report respondent's conduct. Officer Greg Calef of the Eugene Police Department then emailed respondent, informing him that petitioner had alleged that respondent had sent unwanted text messages to her and had provided evidence that would "implicate him potentially in a computer crime."

On June 16, 2016, petitioner filed a petition for an SPO, and a temporary SPO was issued by the trial court.

The hearing for a permanent SPO was held on July 14, 2016. During that hearing, respondent testified that he had accessed petitioner's personal email account. He denied, however, that he had tracked petitioner's whereabouts using the Find My iPhone application.

At the end of the hearing, the trial court concluded that the record supported the issuance of a permanent SPO. It first determined that the "November [2014 physical] contact [with petitioner] *** was unwanted contact." It noted that it believed "petitioner credible on at least being pushed, and that that was unwanted contact that caused her alarm or coercion."

The trial court next determined that respondent's tracking of petitioner was an "unwanted contact" and that respondent's denial of that conduct was not credible. Specifically, the court determined:

"[T]aken together[, all the text messages] reveal *** that the respondent[,] who had previously been physically aggressive with the petitioner[,] was continuing to track her whereabouts, track her-her doings, all of her goings on. He was, and this is non-expressive conduct on his part. This is logging into her accounts. I find it credible. I don't find his testimony particularly credible on the issue of whether he was using [F]ind [M]y iPhone. I saw that he was, had at one point been logged onto that, and I see evidence in his own text messages that he knows where she is, and that lends credibility to the idea that he is nonverbally tracking her whereabouts, using her phone, using an app on the phone to know where she is and let her know that he knows what she's doing and where she is, and that that would reasonably place a person in her situation in apprehension for her physical safety ***."

The trial court also determined that the text messages that respondent sent to petitioner did not themselves meet the requirements for the issuance of an SPO:

"What I have are some text message that I do not see as threats. They are the kind that I routinely turn down in the Stalking Order docket because they threaten and they're rude, and abuse, verbally abusive, but whether they cause her fear for her physical safety is quite doubtful. They don't reflect well on [respondent], *** but the actual words of those text messages don't meet the requirement for stalking."

The court subsequently issued a written order, which contained the following findings:

"1. Respondent has engaged intentionally, knowingly, or recklessly in repeated and unwanted contact with the Petitioner or a member of the Petitioner's immediate family or household, and it was reasonable for Petitioner to be alarmed or coerced by this contact.
"2. It is objectively reasonable for a person in Petitioner's situation to have been alarmed or coerced by Respondent's contact.
"3. Respondent's repeated and unwanted contact caused the Petitioner reasonable apprehension regarding the Petitioner's own personal safety or the safety of a member of his/her immediate family or household.
"4. The unwanted contact occurred within two years of the filing of this action."

Oregon's civil stalking statute, ORS 30.866 (1), provides:

"A person may bring a civil action in a circuit court for a court's stalking protective order or for damages, or both, against a 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."

For a court to issue an SPO, the "statute requires that a petitioner demonstrate that there were two or more unwanted contacts with either the petitioner or a member of the petitioner's immediate family within the previous two years." Christensen , 261 Or. App. at 139, 323 P.3d 348 ; see also ORS 163.730(7) (providing definition of "repeated" for ORS 30.866 ). " '[E]ach contact must give rise to subjective alarm and that alarm must be objectively reasonable ***.' " Christensen , 261 Or. App. at 139, 323 P.3d 348 (quoting Blastic v. Holm , 248 Or. App. 414, 418, 273 P.3d 304 (2012) (brackets and omission in Christensen )). "Alarm," for purposes of ORS 30.866, means "to cause apprehension or fear resulting from the perception of danger." ORS 163.730(1). And, finally, the 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.' " Christensen , 261 Or. App. at 139-40, 323 P.3d 348 (quoting Blastic , 248 Or. App. at 418, 273 P.3d 304 (brackets in Christensen )). In determining whether alarm and apprehension regarding personal safety are objectively reasonable, we may consider "previous contacts as context about the parties' relationship." Ragsdale v. Fleming , 265 Or. App. 342, 351, 336 P.3d 534 (2014).

As noted above, on appeal, respondent makes three principal arguments: First, the trial court erred in "finding that objectively non-threatening text messages constituted a threat that gave rise to a subjective and objectively reasonable alarm or coercion that constituted an unwanted contact for purposes of ORS [30.866]." Second, there was "no evidence presented at trial" that respondent had engaged "in electronically tracking the location of" petitioner. Finally, "tracking" is not a "contact," and contact is a necessary element for issuance of an SPO under ORS 30.866(1).

We are not persuaded by respondent's arguments. Respondent's first argument-that the trial court erred in "finding that objectively non-threatening text messages" constituted an "unwanted contact" for purposes of ORS 30.866 -fails because it starts with an incorrect premise, viz. , that the trial court determined that petitioner's text messages constituted an "unwanted contact" for purposes of ORS 30.866. The trial court's ruling reflects, however, that the unwanted contacts on which it relied when concluding that petitioner was entitled to a permanent SPO were (1) respondent's November 2014 physical contact with petitioner and (2) respondent's electronic tracking of petitioner's whereabouts. Although the content of the text messages that respondent sent to petitioner was evidence that respondent was, in fact, tracking petitioner, the text messages themselves were not the contacts that provided the basis for the trial court's issuance of a permanent SPO.

We also reject respondent's second argument-that there was no evidence presented during the SPO hearing that respondent had engaged in electronically tracking the location of petitioner. Contrary to respondent's contention, there was ample evidence to support the trial court's finding that respondent was electronically tracking petitioner's whereabouts. That evidence includes (1) respondent's testimony that he had accessed petitioner's email account, (2) petitioner's testimony that such access, in conjunction with the Find My iPhone application, would allow respondent to track her cell phone, (3) a screenshot from petitioner's cell phone showing respondent's cell phone listed in petitioner's Find My iPhone application, and (4) the text messages that respondent sent to petitioner that indicated he knew her whereabouts during distinct events as or shortly after they happened. Although respondent denied during the SPO hearing that he had electronically tracked petitioner's location, the trial court determined that that denial was not credible, and we defer to that determination. See Habrat v. Milligan , 208 Or. App. 229, 231, 145 P.3d 180 (2006) ("We defer to the trial court's implicit and explicit credibility determinations.").

Respondent's third argument-that "tracking" is not a "contact" for purposes of ORS 30.866(1) -fares no better. ORS 163.730(3) defines "contact" for purposes of ORS 30.866(1). It provides:

" 'Contact' includes but is not limited to :
"(a) Coming into the visual or physical presence of the other person;
"(b) Following the other person;
"(c) 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;
"(d) Sending or making written or electronic communications in any form to the other person;
"(e) Speaking with the other person by any means;
"(f) Communicating with the other person through a third person;
"(g) Committing a crime against the other person;
"(h) Communicating with a third person who has some relationship to the other person with the intent of affecting the third person's relationship with the other person;
"(i) Communicating with business entities with the intent of affecting some right or interest of the other person;
"(j) Damaging the other person's home, property, place of work or school;
"(k) Delivering directly or through a third person any object to the home, property, place of work or school of the other person; or
"(L) Service of process or other legal documents unless the other person is served as provided in ORCP 7 or 9."

ORS 163.730(3) (emphasis added). Electronically tracking someone's whereabouts may not come within one of the provisions set forth in ORS 163.730(3)(a) to (L), but that is not dispositive, because the list of "contacts" in ORS 163.730(3) is preceded by the term "includes," which shows that the list is "illustrative, not exhaustive." See State v. Shields , 184 Or. App. 505, 511, 56 P.3d 937 (2002), rev. den. , 335 Or. 355, 67 P.3d 937 (2003) ; see also State v. Fox , 262 Or. App. 473, 483, 324 P.3d 608, rev. den. , 356 Or. 163, 334 P.3d 971 (2014) (noting that " '[m]eans' is used in the definition if the definition restricts or limits the meaning of a word," while " '[i]ncludes' is used if the definition extends the meaning" (quoting Office of Legislative Counsel, Bill Drafting Manual § 7.2 (2012) (some internal quotation marks omitted))).

In Boyd v. Essin , 170 Or. App. 509, 516-17, 12 P.3d 1003 (2000), rev. den. , 331 Or. 674, 21 P.3d 96 (2001), we examined the meaning of "contact," as that term is used in ORS 163.730(3). After analyzing the dictionary definition of "contact" and the text of ORS 163.730(3), as well as context, we concluded that "contact" does not require a "direct oral or visual connection between a petitioner and a respondent." Id . Instead, it "is sufficient if the act, when learned, gives rise to an unwanted relationship or association between the petitioner and the respondent." Id. ; see also Christensen , 261 Or. App. at 140, 323 P.3d 348 (noting "[a] 'contact' includes almost any interaction with the petitioner"); Shields , 184 Or. App. at 511, 56 P.3d 937 (concluding that the defendant making telephone calls to the victim in which the defendant did not speak, when such calls were answered by the victim, was a "contact" because it "created a relationship or association" between the defendant and the victim that the victim "clearly did not want"). In Boyd , we determined that "watching petitioner's home with binoculars" from over 1,000 feet away is a contact "within the meaning of ORS 163.730(3)," even though it "may not fall within the specific acts listed in ORS 163.730(3)." Id. at 513, 516-17, 12 P.3d 1003. We so concluded because that act "is similar in both kind and effect to the acts that the legislature has said are encompassed within the term 'contact,' " it "shows an unwanted relationship or association between petitioner and respondent," and was "precisely the kind of contact that the statute was intended to prevent." Id. at 517, 12 P.3d 1003. In this case, we conclude that electronically tracking someone's whereabouts is a "contact" within the meaning of ORS 163.730(3). It is similar in kind and effect to following a person, ORS 163.730(3)(b), in that it (1) provides real-time information about a person's whereabouts and (2) may lead a person to have concerns that they are being followed, as was the case with petitioner here. It is also the kind of conduct that the statute was intended to prevent. See State v. Meek , 266 Or. App. 550, 556-57, 338 P.3d 767 (2014) (noting ORS 163.730(3) was enacted as part of a "general anti-stalking scheme" with the intent of creating a "flexible[ ] and effective statutory scheme *** to enable law enforcement officers, courts, and victims to combat stalking"); Dania Bardavid, Marissa Chiarolanzio & Allison Strittmater, Domestic Violence , 17 Geo. J. Gender & L. 211, 242-43 (2016) (characterizing tracking a victim's location via the victim's cell phone as stalking); Danielle Keats Citron, Spying Inc. , 72 Wash. & Lee L. Rev. 1243, 1251, 1257 (2015) (characterizing the location of someone via a cell phone, a GPS device, or surveillance software as stalking, and noting that "[p]hysical harm is a serious peril when abusers have access to victims' activities and whereabouts"). And, at least in this case, it shows an unwanted relationship or association between petitioner and respondent.

As noted above, respondent does not challenge the trial court's determination that respondent's November 2014 physical contact with petitioner was legally sufficient to serve as a predicate contact for issuance of a permanent SPO pursuant to ORS 30.866(1). Accordingly, we consider whether the record in this case was legally sufficient to permit the trial court to use respondent's electronic tracking of petitioner as a predicate contact for issuance of a permanent SPO pursuant to ORS 30.866(1). We conclude that it was.

Specifically, we conclude that the record in this case is legally sufficient to support the trial court's determination that such contact was unwanted and subjectively alarmed petitioner: she testified that it "really scared" and "concerned" her that respondent knew her location, particularly because she believed that the information gleaned by respondent as a result of that tracking might lead respondent to "retaliate" against her. See ORS 163.730(1) (defining "[a]larm" as "apprehension or fear resulting from the perception of danger"); Boyd , 170 Or. App. at 517-18, 12 P.3d 1003 (considering respondent's "history of assaultive behavior towards petitioner" to infer subjective alarm from petitioner's testimony). We also conclude that petitioner's alarm was objectively reasonable given respondent's history of conduct toward petitioner. See Boyd , 170 Or. App. at 518, 12 P.3d 1003 (explaining "that contacts that might appear innocuous when viewed in isolation often take on a different character when viewed either in combination or against the backdrop of one party's assaultive behavior," and holding that, in the context of the respondent's "history" of behavior towards his family, the petitioner's alarm and apprehension for her personal safety was objectively reasonable); Pinkham v. Brubaker , 178 Or. App. 360, 372, 37 P.3d 186 (2001) (when determining whether alarm was objectively reasonable, "unwanted contacts must be considered in the context of the parties' entire history").

We further conclude that the record is legally sufficient to support the trial court's determination that the unwanted contacts in this case caused petitioner apprehension regarding her personal safety and that that apprehension was objectively reasonable.

In sum, for the reasons stated above, we conclude that the trial court did not err in issuing the permanent SPO. Accordingly, we affirm.

Affirmed.

      In civil stalking cases, we ordinarily refer to the parties by their designation in the trial court. King v. W. T. F. , 276 Or. App. 533, 534 n. 1, 369 P.3d 1181 (2016) (so stating).

      "Find My iPhone * * * allows for real-time updates on * * * Apple product locations * * *." Brenda Baddam, Technology and Its Danger to Domestic Violence Victims: How Did He Find Me? , 28 Alb. L.J. Sci. & Tech. 73, 80 (2017) ; see also Jones v. United States , 168 A.3d 703, 735 (D.C. App. 2017) (Thompson, J., dissenting) (noting that "[c]ase law is replete with references to iPhone owners or law enforcement officers locating * * * iPhones by using the Find My iPhone app"); Baddam, 28 Alb. L.J. Sci. & Tech. at 80 (noting that someone with access to the information provided by Find My iPhone would be able to "stalk[ ] [a] victim[']s every move and readily have directions available to track down the victim.").

      On appeal, respondent does not challenge the trial court's determination that respondent's November 2014 physical contact with petitioner was legally sufficient to serve as a predicate contact for issuance of a permanent SPO pursuant to ORS 30.866(1).

      Defendant also suggests that the trial court should have applied the heightened standard for issuance of an SPO that is applicable when the unwanted contacts at issue are "expressive contacts." As we explained in Christensen , to "avoid constitutional overbreadth problems," when a contact is an "expressive contact"-that is, "one that involve[s] speech, either oral or written"-the contact must include a "threat," which means "a communication 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." Christensen , 261 Or. App. at 140, 323 P.3d 348 (internal quotation marks omitted). Here, the relevant contacts-(1) respondent's November 2014 physical contact with petitioner and (2) respondent's electronic tracking of petitioner's whereabouts-are nonexpressive, and, accordingly, the less stringent statutory standard applies. Id. ("[W]here the act that causes alarm or coercion is based on the nonexpressive conduct, the less stringent statutory standard applies.").

      Given our conclusion below that electronically tracking someone's whereabouts is a "contact" within the meaning of ORS 163.730(3), we do not specifically consider whether the respondent's conduct in this case would be sufficient under either ORS 163.730(3)(b), "[f]ollowing the other person," or ORS 163.730(3)(g), "[c]ommitting a crime against the other person."

      As we observed in Boyd , 170 Or. App. at 517 n. 9, 12 P.3d 1003,
      "[t]he fact that an act constitutes a 'contact' within the meaning of the statute is, of course, not dispositive. Rather, the focus of the statutory test is whether the victim was reasonably alarmed by the contact and had a reasonable apprehension for his or her safety or the safety of the victim's family."

      That petitioner's alarm occurred when she read respondent's text messages and not at the precise moment respondent was electronically tracking her whereabouts does not take her reaction to the tracking outside of the scope of the statute. See Schiffner v. Banks , 177 Or. App. 86, 92, 33 P.3d 701 (2001) (noting "alarm or coercion must arise from the contact," but need not arise "contemporaneously with the contact"); Pinkham v. Brubaker , 178 Or. App. 360, 371, 37 P.3d 186 (2001) ("The fact that petitioner's reaction came when she learned of the unwanted contact, even though the contact had occurred months before, does not take her reaction outside the scope of the statute.").