Most cases involving orders of protection involve female vs. male or female vs. female. You do not see too many involving just males. Recently the Missouri Court of Appeals, Southern District, had an opportunity to review a case wherein a male sought and was granted a full order of protection under the Adult Abuse Act (sections 455.005 - .090, RSMo) against another male. In his petition, the plaintiff alleged that the defendant had harassed and stalked him by forcing his vehicle to stop in August 2005 and threatening violence and to kill him. The trial court granted plaintiff an ex parte order of protection against the defendant based upon the allegations in the petition. During the bench trial the plaintiff admitted that he was not a family member of the defendant, that he and the defendant had never resided together, that the threats against had occurred in August 2005 and again in October 2005. Based upon this testimony the trial court permitted the plaintiff to amend his petition to include the October 2005 incident and it issued a full order of protection against the defendant. The defendant appealed on three grounds - 1) the petition failed to state a cause of action; 2) the court erred when it allowed the petition to be amended; and 3) the judgment was not supported by the evidence. The Court found that the first two grounds were moot but due to the repercussions of having a full order of protection on the defendant's record, the appellate court decided to hear this appeal on its merits on the third ground even though the order had expired.
Due to the plaintiff not being a family member of defendant nor having resided with the defendant, the plaintiff was only entitled to an order of protection for stalking. Stalking is defined to occur when:
[A]n adult purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person's situation to have been alarmed by the conduct. As used in this subdivision:
(a) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact;
(b) "Repeated" means two or more incidents evidencing a continuity of purpose; and
(c) "Alarm" means to cause fear of danger of physical harm.
Section 455.010(10). The plaintiff had to prove his case by a preponderance of the evidence. The defendant contended that the plaintiff failed to do this because there was no evidence that the defendant had engaged in conduct that caused alarm to the plaintiff. The Court agreed. The plaintiff had to prove that the defendant: (1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to plaintiff; (4) when it was reasonable in the plaintiff's situation to have been alarmed by the conduct. Section 455.010(10). The Court went on to state:
As defined by this subsection of the Act, a "course of conduct" must be composed of repeated acts over a period of time that serves no legitimate purpose. Section 455.010(10)(a). "Repeated" is further defined to require two or more incidents demonstrating a continuity of purpose. Section 455.010(10)(b). Alarm requires proof that the petitioner was placed in "fear of danger of physical harm." Section 455.010(10)(c). The evidence in the case at bar was deficient in two respects.
First, proof of stalking involves both a subjective and an objective component. Thus, it was essential for Glover to present substantial evidence that: (1) Michaud's threats caused Glover to subjectively fear physical harm; and (2) a reasonable person under the same circumstances would have feared physical harm. Section 455.010(10); Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. 2007). At no point in Glover's testimony did he ever testify that he was afraid of Michaud or feared being physically harmed by him. Neither was there a sufficient factual development of the evidence to permit the trial court to reasonably determine whether an objective person in the same circumstances would have felt that way. In short, proof that Michaud threatened Glover during the course of an argument on August 21, 2005 does not, ipso facto, constitute proof that Glover took the threat seriously or that a reasonable person would have done so.
Second, there was insufficient proof that Michaud engaged in the requisite "course of conduct" that is an essential element of stalking as defined by Section 455.010(10). Glover testified, albeit in a most cursory and unsatisfactory fashion, about one incident that took place on August 21, 2005. Later, he testified that Michaud also "blocked the road" and "restrained" Glover on October 20, 2005. In the absence of any factual explanation of what actually occurred on the latter date, however, Glover's naked conclusions did not constitute substantial evidence from which the trial court could draw any reasonable inferences. See Hutchings v. Roling, 151 S.W.3d 85, 89 (Mo. App. 2004) (when devoid of any factual support, a lay witness' conclusions do not rise to the level of substantial and competent evidence). For example, the court was not presented with any facts from which it could determine whether Michaud's conduct on that occasion served a legitimate purpose or would have alarmed a reasonable person. The only facts concerning the events of that day came from Michaud, who testified that Glover's complaint involved nothing more than the ordinary act of slowing down on a highway in order to make a turn. Thus, the evidentiary support for the judgment falls short for this reason as well.
Based on our review of the record before the trial court, we conclude that insufficient evidence was presented to support the entry of a full order of protection against Michaud. This holding prompts us to repeat the following cautionary note from Wallace v. Van Pelt, 969 S.W.2d 380 (Mo. App. 1998):
The potential for abuse of the stalking provision of the Adult Abuse Act is great. And, the harm that can result is both real and significant, not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker. Moreover, such a finding could lead to criminal prosecution for violation of the criminal stalking statute, Section 565.225. Thus, it is incumbent that the trial courts exercise great vigilance to prevent abuse of the stalking provisions in the Adult Abuse Act and in making sure that sufficient credible evidence exists to support all elements of the statute before entering a protective order.
James B. Glover v. Wiatt Michaud, SD27565, Missouri Court of Appeals, Southern District, May 24, 2007
