Sabados v. Kempa

FILED: April 28, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

DIANA LYNN SABADOS,

Respondent,

v.

RODERICK JOHN KEMPA,

Appellant.

03-0002-Z0; A120768

Appeal from Circuit Court, Jackson County.

Lorenzo Mejia, Judge.

Submitted on briefs and record December 11, 2003.

Patrick S. Melendy filed the brief for appellant. With him on the brief was Ackley Melendy & Kelly, LLP.

No appearance for respondent.

Before Edmonds, Presiding Judge, and Schuman and Ortega, Judges.

PER CURIAM

Affirmed.

PER CURIAM

Appellant appeals from the entry of a final stalking protective order of unlimited duration. ORS 30.866(1) (2001). (1) He argues that the evidence is not sufficient to support such an order under the requirements of the statute and, alternatively, that the order is too broad in scope because it does not take into account chance encounters between respondent and himself. We review de novo, giving deference to the trial court's express and implicit credibility determinations. ORS 19.415(3) (2001); Pinkham v. Brubaker, 178 Or App 360, 362, 37 P3d 186 (2001). (2) After reviewing the record in this case, we affirm.

A detailed description of the facts in this case would not benefit the bench or bar. In our view, the first assignment of error turns on whether, as respondent testified, appellant pointed or waved a gun at her or whether appellant, as he testified, placed an unloaded gun on a bed and suggested that respondent "finish [him] off" in an act of histrionics. In light of the trial court's ruling, it must have believed the former. Because the trial court had the opportunity to view the witnesses firsthand, we defer to its finding.

The second assignment of error was not preserved in the trial court. We therefore decline to review it on appeal. ORAP 5.45(4)(a).

Affirmed.

1. ORS 30.866 was amended by Or Laws 2003, Ch 292, § 3. Those amendments do not affect our analysis.

2. The 2003 legislature passed House Bill (HB) 2646, amending ORS 19.415. Or Laws 2003, Ch 576, § 88. However, because the judgment on appeal was entered before the effective date of HB 2646, those amendments do not apply here. OR Laws 2003, Ch 576, § 90a.