RYLEE HARTWELL, Petitioner-Respondent v. DARYL BAKER, Respondent-Appellant

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RYLEE HARTWELL, Petitioner-Respondent, v. DARYL BAKER, Respondent-Appellant.

No. SD38942

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Joseph L. Hensley, Judge VACATED AND REMANDED WITH INSTRUCTIONS Appellant Daryl Baker ("Baker") appeals the trial court's judgment granting Rylee Hartwell ("Hartwell") 1 a full order of protection. After reviewing the record in the light most favorable to the trial court's judgment, we conclude that Hartwell failed to present substantial evidence to establish the element of "alarm" required for stalking. The trial

1 Hartwell did not file a brief in this matter. While he was not required to and there is no penalty for failing to do so, we are then forced to resolve Baker's claims of error "without the benefit of whatever arguments" Hartwell might have asserted. Fowler v. Minehart, 412 S.W.3d 917, 918 n.1 (Mo. App. S.D. 2013).

In Division

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court's judgment is vacated, and we remand the case to the trial court with instructions to vacate the order of protection and deny Hartwell's petition. Facts and Procedural History Baker and Hartwell became acquainted at Missouri Southern State University, where Hartwell worked and Baker was a volunteer assistant on the school's football staff. Hartwell is also an elected member of the Joplin School Board. Baker stated he allegedly overheard Hartwell making a derogatory comment towards another individual. Hartwell denied ever making any such comment. Hartwell testified that Baker contacted individuals associated with Hartwell, including the Missouri Southern State University President, the Executive Director of the Missouri School Boards Association, and the mayor of Joplin because of Hartwell's supposed comment. Hartwell further testified that Baker also called him multiple times and threatened to "come down and handle him" and that he would "bring bail money" to Joplin. In his communications, Baker threatened to attend both a Joplin School Board meeting and the annual Missouri School Boards Association conference. On September 9, 2024, Baker received a notice from Missouri Southern State University that he was not permitted on campus for a period of one year as a result of his behavior. Hartwell further stated the staff and principals at Joplin Schools have been instructed to call the police immediately if Baker is on campus "because of our concerns because of his erratic behavior." Hartwell also said the Missouri School Boards Association had concerns about Baker attending their Spring/Summer Summit and was working on a security plan for the event. Additionally, Hartwell testified Baker recently

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sent another message regarding a disagreement at a basketball game between students at Parkview School District and students at Joplin School District. Hartwell said Baker "proceeded to curse out our Superintendent of Schools and say he knows why we are the way we are." On September 17, 2024, Hartwell filed a petition in the Circuit Court of Jasper County, Missouri for a protective order under the Missouri Adult Abuse Act, §455.010 2

et seq. ("the Act"), alleging Baker was stalking him. A protective order hearing was held on March 13, 2025. During this hearing, Hartwell testified that he had "some concerns" for his individual safety based on Baker's communications. Immediately after making that statement, Hartwell said, "[s]o that's my concern, you know, the stress of [Baker] calling consistently numerous organizations I'm associated with and stating these claims...." Hartwell further testified that he was aware of a history of protective orders that had been filed against Baker, but did not provide any details related to those orders. When directly asked whether these communications and this history caused Hartwell to fear for his physical safety or harm, he responded: That is correct. I think that throughout this process what I've learned is that I think the emotional distress that Mr. Baker has brought personally to me throughout this, based on his numerous attempts to contact myself or individuals associated with me, has been extremely, extremely bothersome to me.

2 Unless otherwise indicated, all statutory references are to RSMo 2016, as amended through March 13, 2025.

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When asked if there was anything else he wanted to add, Hartwell again emphasized the consistent nature of Baker's calls to individuals and organizations associated with him and the discussions he's had to have with them due to such contacts. The trial court held that Hartwell established the elements of stalking under the Act and granted him a protective order against Baker, effective until March 19, 2026. This appeal followed. Standard of Review A trial court's judgment granting a full order of protection will be affirmed "unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." A.L.O. v. G.L.N., 698 S.W.3d 455, 458-59 (Mo. App. E.D. 2024) (quoting L.A.C. v. R.A.P., 671 S.W.3d 419, 422-23 (Mo. App. E.D. 2023)). "Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case." Id. We view the evidence and all reasonable inferences from the record in the light most favorable to the judgment. S.A.B. v. J.L.R., 675 S.W.3d 245, 252 (Mo. App. E.D. 2023) (citing Davis v. Davis, 107 S.W.3d 425, 429 (Mo. App. E.D. 2003)). As this Court emphasized in Lawyer v. Fino, 459 S.W.3d 528, 530 (Mo. App. S.D. 2015): [I]t is important to note that the Adult Abuse Act was not intended to be a solution for minor arguments between adults. There is a great potential for abuse, and real harm can result from improper use of the Act, not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker. For those reasons, courts must 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.

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(internal citations and quotation marks omitted). Analysis Baker argues three points on appeal: 1) that Hartwell failed to show the "alarm" necessary to support a finding of "stalking" as defined in the Act; 2) that Hartwell failed to show evidence of two or more incidents to support a finding of "stalking" as defined in the Act; and 3) that Hartwell failed to establish Baker was engaging in a "course of conduct" with no legitimate purpose. Because we agree with Baker's first point that there was insufficient evidence to support a showing of "alarm," we need not review his remaining points. Under §455.010(15), stalking is defined as: [W]hen 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.

For purposes of this section, alarm is defined as "to cause fear of danger of physical harm[.]" §455.010(15)(a). To establish "alarm" sufficient to support a finding of stalking under the Act, the petitioner must show evidence of both the subjective and objective components of alarm. Specifically, the petitioner must present evidence that: 1) he subjectively feared the danger of physical harm; and 2) a reasonable person in the same situation would also fear the danger of physical harm. L.M.M. v. J.L.G., 619 S.W.3d 593, 596 (Mo. App. E.D. 2021) (citing E.D.H. v. T.J., 559 S.W.3d 60, 64 (Mo. App. E.D. 2018)). If the petitioner

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does not present the trial court with evidence supporting both the subjective and objective components of "alarm," an order of protection is not warranted. Id. To meet these definitions, a plaintiff is required to do more than simply assert a bare answer of "yes" when asked if he or she was alarmed.... Appellate courts will reverse orders of protection based on this definition where there was no evidence of overt threats of physical harm and no evidence of physical confrontations.

S.M.W. v. V.M., 597 S.W.3d 779, 783 (Mo. App. E.D. 2020) (internal citations omitted). Here, the precise content and context of Baker's phone calls and communications to various third parties was not established in the record, and we are left to consider only Hartwell's oral testimony from the hearing. On this record, Hartwell failed to present substantial evidence of "alarm" as required to establish stalking under the Act. Hartwell testified that Baker's statements only caused him "some concerns" for his personal safety, and stated that his concern was more the stress of Baker consistently calling numerous organizations that Hartwell was associated with. While Hartwell gave a bare affirmative answer when asked by his counsel whether he feared physical harm, his answer immediately went on to specifically detail the emotional distress that Baker's communications caused him. 3 There was no evidence presented at the hearing of any

3 In addition to stalking, the underlying Petition alleged that Baker "harassed" Hartwell. However, "[c]onduct that meets the definition of ... 'harassment,' as [that] term [is] defined in section[ ] 455.010(1)[ ] and (d) ... is a form of abuse." Fowler, 412 S.W.3d at 921 n.9 (quoting H.K.R. v. Stemmons, 295 S.W.3d 220, 223 (Mo. App. W.D. 2009)). Abuse, as it relates to the Act, relates to domestic violence by a present or former family or household member. Id. There was no evidence that Baker and Hartwell were related, lived together, or had a personal relationship. Therefore, a protective order could not be entered on the basis of abuse or harassment.

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physical encounters or direct communications between Baker and Hartwell where overt physical threats were made. See Lawyer, 459 S.W.3d at 533 ("Appellate courts will reverse orders of protection based on this definition where there was no evidence of overt threats of physical harm and no evidence of physical confrontations."); see also K.L.M. v. B.A.G., 532 S.W.3d 706, 710-11 (Mo. App. E.D. 2017) (finding a lack of evidence of an objective fear of danger of physical harm where there were no physical encounters and the letters from appellant did not contain physical threats). While Baker's repeated communications to Hartwell and his co-workers have no doubt been bothersome; absent alarm, a course of conduct with no legitimate purpose alone is not sufficient to meet the statutory definition of stalking. S.M.W., 597 S.W.3d at 786. Hartwell's testimony about the emotional distress Baker's communications have caused him cannot be used to support a claim of stalking under the Act. See L.M.M., 619 S.W.3d at 597 (overturning the grant of a protective order for stalking where the respondent had contacted petitioner's employer trying to get petitioner fired, in part because "the Adult Abuse Act is intended to prevent potential violence, not hurt feelings or harm to reputation"); see also §455.010(15). As we hold there was not substantial evidence to establish "alarm" as defined in the Act, Hartwell was not entitled to a protective order against Baker on the basis of stalking. Point I is granted.

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Conclusion The Judgment of the trial court is vacated. The matter is remanded to the trial court with instructions to vacate the order of protection and deny Hartwell's petition.

MATTHEW P. HAMNER, J. – OPINION AUTHOR JENNIFER R. GROWCOCK, C. J. – CONCURS JEFFREY W. BATES, J. – CONCURS