C.L.H., Respondent v. ARTHUR H. BALDWIN, Appellant

C.L.H., Respondent, v. ARTHUR H. BALDWIN, Appellant.

No. SD38949

APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY Honorable Chuck Replogle, Judge VACATED AND REMANDED WITH INSTRUCTIONS Arthur H. Baldwin ("Appellant") appeals the trial court's entry of a full order of protection against him. Appellant argues that Respondent C.L.H. ("Respondent") failed to prove stalking under the Adult Abuse Act, §§ 455.010, et seq., RSMo., because she made no allegations and gave no testimony that she or her children feared physical harm. 1

1 Unless otherwise indicated, statutory references are to RSMo. (Cum.Supp. 2022).

In Division

2 For the reasons set forth below, we vacate the judgment and remand the case to the trial court with instructions to deny the petition. Factual Background Respondent sought a full order of protection against Appellant in February 2025, claiming Appellant stalked her. At the hearing on the motion, Respondent testified that in 2021, Appellant, in his truck, followed Respondent and her two minor daughters, in their vehicle, from the Urbana town square to their home. Respondent testified that Appellant chased them at high rates of speed and repeatedly flashed his bright headlights. Due to Appellant's tailgating, Respondent was forced to take turns in the road at over fifty miles per hour. She testified that Appellant also attempted to run her off the road with his vehicle. When Respondent arrived at her home, she was traveling at such a high rate of speed that she unintentionally drove into the ditch near her driveway, causing one of her daughters to hit her head and Respondent to sprain her wrist. Appellant stopped at Respondent's driveway, exited his truck, and approached Respondent's vehicle on foot. Respondent rolled down her window and yelled at Appellant. At the same time, Respondent's father approached Appellant with a gun. Appellant "backed off," but refused to identify himself and left the scene. Respondent called the sheriff. Respondent testified that Appellant was prosecuted and convicted of assault and child endangerment for the aforesaid conduct. He was placed on probation for two years and ordered to serve shock time in jail. The terms of Appellant's probation included a condition that he not be within 500 feet of Respondent's home. Respondent testified that

3 in September 2024, on multiple occasions, Appellant drove by her home and stopped at her neighbor's house. She contacted the sheriff's department and made two reports. Respondent further testified that as a result of Appellant's violation of the distance condition, Appellant's probation was revoked, and he was ordered incarcerated to serve the remainder of his sentence. 2

When questioned about the impact of the 2021 incident, Respondent testified that her daughters are still "terrified." Simply seeing Appellant's work vehicles "sets off a fear." She testified that she hoped her daughters would "be able to feel safe, secure, and just kind of carefree in their yard and their home and not have to have this fear anymore[,]" and "not constantly feel like they're looking over their shoulder." Appellant also testified at the hearing. He admitted that he followed Respondent in September 2021. He also admitted to accepting a job at Respondent's neighbor's house, but he testified that he believed it was further than 500 feet from Respondent's home. He further testified that his employees also drive company vehicles. Appellant testified that he has not communicated or attempted to communicate with Respondent since the incident in 2021. The trial court found Respondent's testimony more credible than Appellant's and entered a full order of protection against Appellant for five years.

2 Respondent attached to her petition for protective order a report from the Dallas County Sheriff's Office that determined that Respondent's home was 698.75 feet from the neighbor's barn, the two closest points of each structure. The report also determined that the distance from Respondent's home to the roadway was 160 feet.

4 In his first point on appeal, Appellant argues the entry of the protective order was not supported by substantial evidence. In his second point, Appellant contends the trial court failed to make the specific written findings required by statute for entry of a five- year protective order. Standard of Review "In reviewing the trial court's grant or denial of full orders of protection, this Court will sustain the judgment of the trial court unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." L.M.M. v. J.L.G., 619 S.W.3d 593, 596 (Mo.App. E.D. 2021). We must accept all evidence and inferences consistent with the trial court's judgment and ignore all evidence and inferences to the contrary. A.V. v. V.O., 593 S.W.3d 130, 135 (Mo.App. E.D. 2020). In appeals arising under the Adult Abuse Act, only rarely should we supersede the trial court's discretion, as the trial judge is best positioned to assess witness credibility. R.K. v. Kelly, 630 S.W.3d 904, 908 (Mo.App. W.D. 2021). Still, courts "'must exercise great care to ensure that sufficient evidence exists to support all elements of the statute before entering a full order of protection.'" Id. (quoting L.M.M., 619 S.W.3d at 596). Statutory Provisions Under the Adult Abuse Act, "[a]ny person who has been subject to domestic violence by a present or former family or household member, or who has been the victim of stalking or sexual assault, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence, stalking, or sexual assault by the respondent." Section 455.020.1 RSMo. (2016).

5 "Stalking" occurs "when any person purposely engages in an unwanted course of conduct that causes alarm to another person, or a person who resides together in the same household with the person seeking the order of protection when it is reasonable in that person's situation to have been alarmed by the conduct." Section 455.010(15). "Alarm" means "to cause fear of danger of physical harm[.]" Section 455.010(15)(a). "Course of conduct" is defined as "two or more acts that serve no legitimate purpose including, but not limited to, acts in which the stalker directly, indirectly, or through a third party follows, monitors, observes, surveils, threatens, or communicates to a person by any action, method, or device." Section 455.010(15)(b). To prove "alarm," Respondent was required to prove "both a subjective and objective component." Kelly, 630 S.W.3d at 908 (quoting L.M.M., 619 S.W.3d at 596). She needed to show she "subjectively fear[ed] the danger of physical harm" and that "a reasonable person in the situation would likewise fear the danger of physical harm." Id. at 908 (quoting L.M.M., 619 S.W.3d at 596). "Where the petitioner does not present sufficient evidence that they fear physical harm or that a reasonable person would fear physical harm, an order of protection is not appropriate." L.M.M., 619 S.W.3d at 596. A petitioner seeking an order of protection must prove his or her allegations by a preponderance of the evidence. Kelly, 630 S.W.3d at 908-09; Section 455.040.1. Discussion Respondent failed to present evidence that Appellant's actions warranted a full order of protection. We acknowledge that Respondent's testimony demonstrated the 2021 incident was subjectively frightening to both Respondent and her daughters. We

6 also believe a reasonable person in the same situation would objectively fear physical harm from a truck driven at high speeds, flashing its bright headlights, and attempting to run another vehicle off the road. Yet, we are required to consider--and Respondent was required to prove--more than the 2021 incident and its impact. Respondent testified that Appellant drove by her house on more than one occasion in 2024, violating his conditions of probation. Respondent testified that Appellant driving by her house three years later caused fear from the 2021 incident to resurface in her daughters. She testified that her daughters are still "terrified" from the 2021 incident. Notably, Respondent did not allege that she had received any threats of physical harm from Appellant after the 2021 incident. See L.M.M., 619 S.W.3d at 597 (Where there was no assertion of "physical threats against her, that there was a history of physical encounters between them, or that she feared physical harm," there was no demonstration of either subjective or objective fear of physical harm.). She did not allege or testify to any communication or contact with Appellant in the three intervening years. On the subjective analysis, we note that Respondent did not testify that she feared Appellant would cause her or her daughters physical harm. She stressed her daughters' fear and terror after the 2021 incident and stated that seeing Appellant's company truck driving by their home in 2024 renewed Respondent's daughters' fears from 2021. However, Respondent expressed no concern that she or her daughters were then in danger of physical harm. Respondent did not allege Appellant attempted to communicate with or contact her. Respondent did not assert that Appellant had threatened her or her children. Respondent instead spoke in terms of hoping her children would feel "safe and

7 secure" in their home and on their property. These feelings are laudatory and her daughters' residual fear is undoubtedly distressing, but emotional distress is not an element of stalking. L.M.M., 619 S.W.3d at 597. Respondent was required to prove both a subjective and an objective fear of danger of physical harm. Kelly, 630 S.W.3d at 908 (quoting L.M.M., 619 S.W.3d at 596). By failing to demonstrate that she feared Appellant posed a danger of physical harm to her or her daughters, Respondent failed to prove the subjective element of alarm. We also are unconvinced that any such fear of physical harm was objectively reasonable. Respondent saw Appellant's business vehicle drive in front of her home. Nothing in the record shows that a reasonable person in the same situation would interpret the activity of the business vehicle as a threat of physical harm. Respondent's claims stem from the alarm caused by one event in 2021. The statute requires that Respondent show a "course of conduct," i.e., two or more acts that serve no legitimate purpose. Sections 455.040, 455.010(15). Respondent also failed to make this showing. "[A] single event causing alarm 'is insufficient to prove stalking because of the absence of repeated acts over a period of time.'" E.A.B. v. C.G.W., 415 S.W.3d 795, 800 (Mo.App. E.D. 2013) (quoting Dennis v. Henley, 314 S.W.3d 786, 790 (Mo.App. S.D. 2010)). In Dennis, the court held that an inciting incident in which the respondent was physically harmed was the only time respondent "subjectively feared danger of physical harm or when a reasonable person in his situation would have done so." 314 S.W.3d at 790. The court noted that the record contained testimony of three other incidents involving appellant and respondent, but "none of these events is sufficient

8 to prove the requisite course of conduct necessary for stalking to exist." Id. at 791. As in Dennis, Respondent here made no allegations that Appellant threatened her or her children since the 2021 event. In sum, Respondent did not demonstrate either the "alarm" component or the "course of conduct" component of the statute to establish stalking. Accordingly, Appellant's Point I on appeal is granted. Conclusion Based on the foregoing, we vacate the trial court's judgment. Because entry of the protective order was not supported by sufficient evidence, Appellant's second point on appeal, that the trial court erred by granting the five-year order of protection, is moot. We vacate the judgment and remand the case to the trial court with instructions to deny Respondent's petition. JACK A. L. GOODMAN, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, C.J. – CONCURS BECKY J. WEST, J. – CONCURS