Protection order denied due to lack of evidence

Though an appellate court may be reluctant in denying a request for an order of protection in an Adult Abuse Act case, evidence must be available to support stalking allegations.

Meredith Suhr lost her case when the Missouri Court of Appeals for the Western District reversed the trial court's decision to grant her a full order of protection against her ex-husband. The two were divorced in 1994 because Ash Okorn was allegedly physically abusing Suhr. Okorn originally had custody of the couple's children, but that was later overturned after the Division of Family Services removed the children from their father's custody due to physical abuse.

It was just before the new custody hearings when Suhr said she began receiving strange phone calls as often as twice a day. These continued through the custody hearings and after, though they became less frequent. Suhr, who pleaded her case pro se, was concerned by these phone calls.

On another occasion, Suhr said a truck identical to the one driven by Okorn drove by her house around 9:30 p.m. one evening while she and her husband and a friend were on their patio grilling. The truck pulled into a neighbor's driveway, turning off its lights. The truck then began back up the road, past Suhr's house, with its lights still off. Suhr testified that it appeared to be a man in the vehicle, but was not sure it was Okorn. Okorn and his wife testified they had been on a float trip with 12 other people on the night in question.

During trial, Okorn presented his phone bill as evidence, but it was not admitted because it did not include the times in question and the circuit court found the information not pertinent to the case. Because there was no evidence of the phone calls, and Suhr could not be sure it was her ex-husband who called her, because the caller never spoke, the appellate court felt there was not sufficient evidence to include the calls in the stalking allegations.

"With regard to the calls, the record is completely devoid of evidence that the calls Ms. Suhr complains of came from Mr. Okorn," Judge Victor Howard wrote. "Neither Ms. Suhr nor Mr. Suhr could say Mr. Okorn made the calls. The only evidence offered by Ms. Suhr with regard to the calls was based upon her speculation, which will not suffice to meet her preponderance burden."

The only bit of evidence still available in the case was the truck driving by the Suhrs' house. According to Section 455.010(10), "'Stalking' is when an adult purposely and repeatedly harasses or follows with the intent of harassing another adult." The Court found that, even if it accepted that it was Okorn in the vehicle that night, it only occurred once, and did not become or imply a "course of conduct." "Course of conduct" is defined by the same statute as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose."

"While we are fully aware of the substantial deference granted to the trial court because of its position to gauge the credibility of the witnesses and our resultant hesitancy to supersede the trial court's discretion in Adult Abuse Act cases, we are equally aware of potential for abuse of the Adult Abuse Act and the stigma hat can attach to a respondent who is adjudicated a 'stalker,'" Judge Howard wrote. "Even if we grant the trial court the substantial deference due it, the evidence in the record is too scant to support its finding that Ms. Suhr proved her allegations of stalking by a preponderance of the evidence, so reversal is warranted."

Meredith Suhr, respondent v. Ash Okorn, appellant; case number WD60515; handed down August 30.

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