DON E. BURRELL, Presiding Judge.
Melinda Gail "Mindy" Wallace ("Appellant") appeals the "Judgment Entry Full Order of Protection" ("the full order") granted to S.D. ("Petitioner") that ordered Appellant, among other things, not to abuse, stalk, or disturb the peace of Petitioner wherever Petitioner might be. See section 455.040.
In a single point relied on, Appellant contends "the parties did not have a `family or household relationship'"
"[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case." Wallace v. Van Pelt, 969 S.W.2d 380, 382 (Mo.App. W.D.1998).
Section 455.040.1 requires a petitioner seeking a full order of protection to "prove[ ] the allegation of abuse or stalking by a preponderance of the evidence." "Stalking statutes should be construed narrowly enough to prevent serious abuse, but broadly enough to maximize victim protection." Towell v. Steger, 154 S.W.3d 471, 476 (Mo.App. S.D.2005). Because harm can result from an abuse of the Adult Abuse Act, "trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection."
Petitioner filed her "Adult Abuse/Stalking Petition for Order of Protection" on
Petitioner's request for a full order of protection was tried to the court on March 22, 2011. The evidence adduced at trial is summarized here in the light most favorable to the judgment. See H.K.R., 295 S.W.3d at 221. Petitioner testified that Appellant was "the parent of one of [Petitioner's] old friends." When asked by the trial court what prompted Petitioner to seek an order of protection, she replied, "Well, there are many instances where I feel that I've needed protection against her. Not only does she drive her car around town and stare at me out her windows and not necessarily follow, but she makes—makes it known that she's there." Petitioner further testified that Appellant would roll down her car window and "turn her head" and that these actions intimidated Petitioner and made her "feel scared." When asked how many times this had occurred, Petitioner replied, "Many. It's not—It hasn't just been me by myself. If I've been with my friends, just anything. Anytime she's been in town. So multiple times." On cross-examination, Petitioner indicated that similar incidents had also happened on Saturday nights as many as "20, 30" times.
Petitioner specifically recalled one incident that occurred around 9:00 p.m. on a school night and another incident that occurred on a Saturday night when she was riding in a car late at night with friends. During this particular Saturday night incident, Appellant's car approached a stop sign as a car Petitioner was riding in also approached. Petitioner related that Appellant "sat on her side of the stop sign and just glared like we were the most disgusting things she's ever seen." Petitioner also recalled an instance that happened at a "home football game." Petitioner saw Appellant and felt uncomfortable because Appellant stared at her, whispered about her, and giggled at her.
Petitioner testified that she had "a longtime dispute" with Appellant's daughter, K.W. Both Petitioner and K.W. were students at the same high school. Petitioner said that K.W. shoved her in the hallways and screamed at her in the cafeteria. Petitioner said her problems with Appellant started "[w]henever [Appellant's] daughter stopped being [Petitioner's] friend."
On cross-examination, Petitioner was asked to clarify a reference to Appellant "drop[ping] her daughter off to fight girls[,]" and the following exchange ensued:
Petitioner further testified that K.W. and the friend fought, and the friend struck K.W.
The trial court took the case under advisement and entered the full order two days later, finding "pursuant to [s]ection 455.040 RSMo that [Petitioner] ha[d] proved the allegations of abuse or stalking." The term of the full order was for one year—a term that could be extended upon application and hearing. This appeal timely followed the trial court's denial of Appellant's "motion for reconsideration and/or new trial."
Under section 455.010(13), "stalking" occurs
Appellant first claims that even "[i]f the trial court believed the testimony of [Petitioner], there is no dispute this drive by on a public road occurred only once." This assertion is clearly refuted by the evidence previously recited. As Petitioner's testimony constituted substantial evidence that there were two or more incidents, this portion of Appellant's argument fails.
However, Appellant's alternative contention—that no evidence supported the necessary element of alarm—does have merit. To have engaged in stalking, the offender must have "(1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to [the petitioner]; (4) when it was reasonable in [the petitioner's] situation to have been alarmed by the conduct." Glover v. Michaud, 222 S.W.3d 347, 352 (Mo.App. S.D.2007).
In C.H., the respondent was a sheriff's deputy and the petitioner was his neighbor. 302 S.W.3d at 708. The two men disputed respondent's control of his dog and where he chose to legally park his vehicle. The petitioner also alleged that respondent stared into the windows of his home, and, on more than one occasion, "watched" him. Id. at 704. The petitioner "testified that it was `kind of scary having... somebody who's supposed to be an officer that carries a weapon out there staring in our windows[.]'" Id. at 707. The petitioner did not assert that respondent's "staring" put him in reasonable fear of danger of physical harm. Id. at 707. The Western District held that the petitioner had not "met his burden to establish by a preponderance of the evidence that [respondent's] course of conduct, however inconvenient or irritating to [petitioner], caused him to fear the danger of physical harm at all, let alone reasonably." Id. at 708.
Here, Petitioner testified that she felt she "needed protection against [Appellant]" and that Appellant's behavior made her "feel scared." Assuming, arguendo, the trial court could reasonably infer from this statement that Petitioner actually feared she would be physically harmed by Appellant, the subjective component of the element of alarm would have been met. But Petitioner also had to prove that a reasonable person in Petitioner's situation would also have feared physical harm by Appellant—the objective component of alarm.
We initially note that in stating her claim for a protective order, Petitioner did not check the box on the petition that would claim Appellant had "placed or attempted to place [Petitioner] in apprehension of immediate physical harm[.]" Then, at trial, Petitioner testified that Appellant stared and glared at her from another vehicle on multiple occasions and whispered and giggled at a football game when Petitioner walked past. Petitioner did not offer any evidence that Appellant knowingly took K.W. to the friend's house for the purpose of having a fight with the friend or with Petitioner, or that Appellant was otherwise behind any of K.W.'s behavior as described by Petitioner. Petitioner did not claim Appellant was following her. Petitioner did not offer any evidence showing that Appellant had ever engaged in any violent acts or that Petitioner had any other reason to believe Appellant was a violent person. Petitioner presented no evidence that Appellant said anything,
Appellant's point is granted. The judgment is reversed, and the cause is remanded to the trial court which is directed to vacate the full order.
RAHMEYER and LYNCH, JJ., Concur.
