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Murphy v. O'Keefe

Court of Appeals of Georgia, First Division

January 8, 2019

MURPHY
v.
O'KEEFE

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          BARNES, PRESIDING JUDGE.

         Following a hearing, the trial court granted Kristen O'Keefe's petition for a twelve month stalking protective order ("TPO") against Joseph Patrick Murphy. Per the order, Murphy was enjoined from approaching within 500 yards of O'Keefe and from any direct or indirect contact with her. It is from that order that Murphy appeals, and contends that the trial court erred in issuing the protective order because there was insufficient evidence of stalking.[1] Following our review, we agree and reverse the trial court's judgment.

         "In reviewing the sufficiency of the evidence supporting a stalking protective order, we do not weigh the evidence or assess witness credibility, and we construe the evidence in favor of the findings of the trier of fact." (Citation and punctuation omitted.) Thornton v. Hemphill, 300 Ga.App. 647, 647 (686 S.E.2d 263) (2009). So viewed, the record reveals that at the March 28, 2018 hearing on the petition, [2] 18-year-old O'Keefe, a waitress at a restaurant in Canton, testified that:

[Murphy] came into my work on Wednesday a couple of weeks ago . . . and tipped me $100. Then on Thursday, he came back and was telling the manager that he tipped me that much money so that I could go out with him. Then he left me a note telling me to call him. Saturday, he came back and was just sitting at the bar and I didn't really feel comfortable with him being there. So we called the police.

O'Keefe further recounted that when the police left, Murphy "got a cab to go home, but he went to Lowes and called my work from Lowes. I answered . . . and he told me I had a pretty voice. Customers were walking in and he handed them a note and the note told me . . . to call him. Then we called the police again." Upon Murphy's hearsay objection, the police report was not admitted into the record, and there was no other testimony presented at the hearing.

         At the conclusion of the hearing, the trial court found that although

this is a close case. . . [the] preponderance of the evidence is a very low standard. . . I am going to go ahead and issue the stalking order in this case. I do believe that [O'Keefe] was intimidated and uncomfortable by this contact and there was more than one contact after [Murphy] was told to not contact her anymore.

         "Pursuant to OCGA § 16-5-94 (a), a person who alleges stalking by another person may seek a restraining order by filing a petition alleging conduct constituting stalking as defined in Code Section 16-5-90." (Punctuation omitted.) Bruno v. Light, 344 Ga.App. 799, 801 (1) (a) (811 S.E.2d 500) (2018). Per OCGA § 16-5-90 (a) (1):

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. . . . [T]he term "contact" shall mean any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device[.] . . . [T]he term "place or places" shall include any public or private property occupied by the victim other than the residence of the defendant. . . . [T]he term "harassing and intimidating" means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

         "[H]arassing and intimidating conduct must be established by, among other things, 'a pattern of harassing and intimidating behavior.'" (Citation omitted.) State v. Burke, 287 Ga. 377, 378-379 (695 S.E.2d 649 (2010).

         In order for O'Keefe

to obtain a protective order based on stalking, [she] must establish the elements of the offense by a preponderance of the evidence. The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion.

(Citation and punctuation omitted, emphasis supplied.) Pilcher v. Stribling, 282 Ga. 166, 167 (647 S.E.2d 8) (2007). See OCGA ...


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