Background
Peter Allen Dewing’s neighbor, C, obtained a stalking protective order prohibiting him from, among other things, waiting outside her home or coming into her visual or physical presence. One evening, while C was walking down her driveway to her mailbox, Dewing drove past her house on the way to or from his own property, stopped in front of her home, turned off his vehicle, and remained there for 35 seconds.
Dewing was convicted of two counts of violating the stalking protective order under ORS 163.750, based respectively on waiting outside C’s home and coming into her visual or physical presence. On appeal, he challenged the denial of his motions for judgment of acquittal on both counts, the entry of two separate convictions rather than one merged conviction, and the inclusion of $32.16 in courthouse-trip mileage in the restitution award.
The Court’s Holding
The Court of Appeals held that the evidence was sufficient to permit a rational factfinder to find both charged violations beyond a reasonable doubt. A factfinder could conclude that Dewing came into C’s visual or physical presence and that the protective order’s inadvertent-contact exception did not apply because he stopped and parked rather than merely passing by. The factfinder also could conclude that he “waited” outside C’s home, particularly because he turned off his vehicle.
The court nevertheless held that the two verdicts should have merged into a single conviction under ORS 161.067 because they arose from a single criminal episode and no statutory exception applied. Although the judgment’s probation conditions stated that Count 2 was to merge with Count 1, it separately listed convictions on both counts. The court therefore reversed and remanded for entry of one conviction and resentencing.
As to restitution, the court assumed without deciding that including $32.16 for C’s mileage to two courthouse hearings was plain error. It declined to correct the unpreserved alleged error because the amount was not grave and a better record likely would have been developed if Dewing had objected in the trial court.
Key Takeaways
- Stopping outside the protected person’s home, turning off a vehicle, and remaining for 35 seconds supported findings that the defendant entered the person’s visual or physical presence and “waited” outside the home.
- Verdicts for multiple stalking-order violations arising from one criminal episode must merge when none of the exceptions in ORS 161.067 applies.
- The court may decline to correct an unpreserved restitution issue even if plain error is assumed, particularly when the amount is small and an objection could have produced a better record.
Why It Matters
The decision illustrates that even a brief stop can supply sufficient evidence of prohibited contact and waiting when the surrounding conduct supports an inference that the encounter was not inadvertent. It also emphasizes that a judgment must formally reflect merger by entering only one conviction; language elsewhere in the judgment stating that counts merge is insufficient if separate convictions remain listed.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as that rule permits.