Filed: May 16, 2002

JOY DELGADO,

Respondent on Review,

and

STATE OF OREGON,

Respondent on Review,

v.

ROBERT HUNTER SOUDERS,

Petitioner on Review.

Argued and submitted September 8, 1999.

On review from the Court of Appeals.*

Chris W. Dunfield, Corvallis, argued the cause and filed the brief and additional authorities for petitioner on review.

Richard L. Wehmeyer, Corvallis, argued the cause for respondent on review Delgado.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent on review State of Oregon. With him on the briefs and additional authorities were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.**

CARSON, C. J.

The decision of the Court of Appeals and the order of the circuit court are affirmed.

*Appeal from Benton County Circuit Court, Frank D. Knight, Judge. 146 Or App 580, 934 P2d 1132 (1997).

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case. Kulongoski, J., resigned June 14, 2001, and did not participate in the consideration or decision of this case. De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case.

CARSON, C.J.

This case involves ORS 30.866, set out post, the civil anti-stalking statute. The trial court entered a stalking protective order (SPO) under that statute, prohibiting defendant from knowingly following plaintiff, knowingly being in plaintiff's presence or within 100 feet of her residence, and from entering certain property. Defendant appealed, raising various constitutional challenges to ORS 30.866 and further arguing that there was not sufficient evidence to support entry of the SPO in his case. The Court of Appeals affirmed. Delgado v. Souders, 146 Or App 580, 934 P2d 1132 (1997). We affirm the Court of Appeals' decision and the trial court's order.

The facts are as follows. In 1995, plaintiff was a student at Oregon State University (OSU) in Corvallis, working toward a doctoral degree in education administration. In the summer of 1995, plaintiff lived in an apartment about four blocks from the OSU campus and seven blocks from her office at the School of Education building, and she regularly walked to and from campus. During that summer, plaintiff noticed defendant several times a week, sometimes more than twice a day, either walking around plaintiff's apartment building or walking nearby as plaintiff walked to and from campus. She also noticed defendant a number of times in the OSU library when she was studying there. Initially, defendant's presence caused plaintiff no alarm or concern, although she began to notice defendant with increasing frequency and, on one occasion, noticed that defendant appeared to be looking in her direction.

One morning in late September 1995, when plaintiff was walking to campus, she heard leaves crunching behind her, turned, and saw defendant right behind her. Defendant passed by plaintiff within one or two feet and, in the course of passing by, crossed the street diagonally away from her. Plaintiff was startled and thought it strange that defendant had not said anything when he passed by her so suddenly, particularly because the area otherwise was deserted.

After that encounter, between September and November 1995, plaintiff noticed defendant on at least three occasions seated at tables near her study carrel in the basement of the OSU library. She ultimately stopped going to her study carrel, because defendant's presence made her uncomfortable. During the same time frame, plaintiff also noticed on a few occasions that defendant would appear on different floors of the library when she was working on those floors. On one or two of those occasions, she and defendant made "very, very brief" eye contact. By mid-November, plaintiff began to feel as if defendant were stalking her and became concerned for her personal safety.

In late November 1995, plaintiff was unloading her vehicle in the afternoon after returning home from a Thanksgiving trip. At that time, the street was quiet and deserted. When plaintiff locked and closed her vehicle door and turned around, she saw defendant about two or three feet away from her; he walked past her and, in the course of passing by, crossed the street diagonally away from her. Plaintiff began to feel more uncomfortable about defendant's conduct and became afraid and concerned for her personal safety. Consequently, she began documenting her encounters with defendant. One of plaintiff's concerns was the manner in which defendant "silently and swiftly" walked up behind her, without announcing -- or without her otherwise noticing -- his presence. Plaintiff also was concerned by the physically close nature of defendant's appearances, at times when no other people were nearby and when defendant was walking in a large, unobstructed area.

On December 1, 1995, during the late afternoon, plaintiff noticed defendant, from a distance, walking toward the School of Education building. At one point, defendant walked on the same side of the street as plaintiff; however, he turned and walked up a pathway near the building, and did not come into contact with plaintiff or otherwise give any indication that he was aware of her presence. Plaintiff again became concerned and afraid as a result of seeing defendant so frequently, particularly because, to plaintiff's knowledge, defendant neither worked nor attended classes at the School of Education building.

Shortly after noon the next day, plaintiff was walking between the School of Education building and the OSU computer center, at a time when the campus seemed deserted, when she sensed something behind her. Although she did not hear anything, she started to turn, and defendant was "right there," about one foot away. As plaintiff described it, defendant again had come up behind her swiftly, without any sound, and then passed by her. When defendant was about three feet ahead of plaintiff, plaintiff said "what the hell" to him, but he did not respond and kept walking forward. Later that day, plaintiff called the police, and, on December 7, 1995, plaintiff filed a civil stalking complaint (1) against defendant under ORS 30.866(1).

Later on December 7, 1995, an Oregon State Police (OSP) officer located defendant, handcuffed him, and transported him to the Public Safety Building on the OSU campus. An OSU public safety officer then issued defendant a notice, which is not at issue in this proceeding, declaring that he no longer was permitted on the OSU campus. On December 12, 1995, a trial court held an initial hearing on plaintiff's complaint and, after considering plaintiff's allegations, entered a temporary SPO against defendant under ORS 30.866(2). Soon thereafter, defendant moved to dismiss the complaint upon various constitutional grounds; the trial court denied that motion.

In February 1996, the trial court held an evidentiary hearing, pursuant to ORS 30.866(3)(a). Plaintiff testified about the encounters described above, adding that, throughout those encounters, defendant had not spoken to her, although he had made "side glances" in her direction when crossing the street and, on one or two occasions at the library, had made "very, very brief" eye contact. Plaintiff also presented evidence that she had suffered depression, anxiety, and "psychosocial stress" related to those encounters. Finally, plaintiff presented evidence that, in 1993, another female OSU student had obtained an SPO against defendant.

At the close of plaintiff's evidence, defendant moved to dismiss, based upon insufficient evidence. The trial court denied that motion, and defendant then presented his case. For his part, defendant testified that, like plaintiff, he lived within walking distance of the OSU campus and frequently used the OSU library as a resource for his work. Defendant noted that he used materials on different floors of the library and that he often read the newspapers in the basement.

Defendant further testified that he walked everywhere, that he would pass the School of Education building when walking from his apartment to the OSU library, and that he would pass plaintiff's apartment building when walking from his apartment to downtown Corvallis. Defendant testified that it was not unusual for him to walk by plaintiff's apartment building between four to eight times in one day. Defendant also described his manner of walking as "fairly fast" and stated that he regularly overtook other pedestrians on the sidewalk, giving no warning of his approach. Defendant further testified that he never remembered seeing plaintiff during the time period in question and that he did not know that plaintiff had complained about his conduct until he was transported to the Public Safety Building. Finally, other witnesses testified, in defendant's behalf, that defendant was a peaceful and truthful person, and that he walked quickly and "with a purpose," using long strides.

At the close of all the evidence, defendant renewed his pretrial motion to dismiss plaintiff's complaint, based upon various constitutional grounds. The trial court adhered to its earlier ruling and also concluded that plaintiff had established all the elements required to obtain an SPO under ORS 30.866(3)(a). The court then entered an order that prohibited defendant from knowingly following plaintiff or knowingly being in her presence; telephoning plaintiff; knowingly being in plaintiff's presence in the OSU library; knowingly being within 100 feet of plaintiff's residence; and entering the School of Education building or the OSU computer center.

As noted, defendant appealed. On appeal, the state intervened as a party. The Court of Appeals affirmed the trial court's order. Delgado, 146 Or App 580. We allowed defendant's petition for review, which challenges ORS 30.866 upon various constitutional grounds and also raises issues related to the sufficiency of the evidence.

We first address defendant's evidentiary challenge. See State v. Montez, 324 Or 343, 346, 927 P2d 64 (1996) (addressing subconstitutional issues before constitutional issues). As explained below, we conclude that plaintiff presented sufficient evidence to establish all the elements required to obtain an SPO under ORS 30.866(3)(a).

We begin by setting out the civil anti-stalking statute. ORS 30.866 provides, in part:

"(1) A person may bring a civil action in a circuit court for a court's stalking protective order or for damages, or both, against a person if:

"(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person's immediate family or household thereby alarming or coercing the other person;

"(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and

"(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household.

"(2) At the time the petition is filed, the court, upon a finding of probable cause based on the allegations in the petition, shall enter a temporary court's stalking protective order that may include, but is not limited to, all contact listed in ORS 163.730. The petition and the temporary order shall be served upon the respondent with an order requiring the respondent to personally appear before the court to show cause why the temporary order should not be continued for an indefinite period.

"(3)(a) At the hearing, whether or not the respondent appears, the court may * * * proceed to enter a court's stalking protective order * * *.

"(b) If respondent fails to appear after being served as required by subsection (2) of this section, the court may issue a warrant of arrest * * * in order to ensure the appearance of the respondent in court.

"(4) The plaintiff may recover:

"(a) Both special and general damages, including damages for emotional distress;

"(b) Punitive damages; and

"(c) Reasonable attorney fees and costs.

"* * * * *

"(7) Proof of the claim shall be by a preponderance of the evidence."

ORS 163.730 sets out a number of definitions that apply to ORS 30.866. That statute provides, in part:

"(1) 'Alarm' means to cause apprehension or fear resulting from the perception of danger.

"(2) 'Coerce' means to restrain, compel or dominate by force or threat.

"(3) 'Contact' includes but is not limited to:

"(a) Coming into the visual or physical presence of the other person;

"(b) Following the other person;

"(c) Waiting outside the home, property, place of work or school of the other person or of a member of that person's family or household;

"(d) Sending or making written or electronic[ (2)] communications in any form to the other person;

"(e) Speaking with the other person by any means;

"(f) Communicating with the other person through a third person;

"(g) Committing a crime against the other person;

"(h) Communicating with a third person who has some relationship to the other person with the intent of affecting the third person's relationship with the other person;

"(i) Communicating with business entities with the intent of affecting some right or interest of the other person;

"(j) Damaging the other person's home, property, place of work or school; or

"(k) Delivering directly or through a third person any object to the home, property, place of work or school of the other person.

"* * * * *

"(7) 'Repeated' means two or more times."

As noted above, defendant contends that plaintiff presented insufficient evidence to establish that defendant had engaged in stalking under ORS 30.866(1). Specifically, defendant complains that his conduct was too innocuous to establish, as a matter of law, that he had stalked plaintiff. Defendant further argues that plaintiff's sense of alarm was not objectively reasonable, as ORS 30.866(1)(b) requires.

We begin with defendant's contention that, regardless of the reasonableness of plaintiff's sense of alarm, plaintiff presented insufficient evidence as a matter of law to establish that his conduct constituted stalking. For purposes of our analysis, we focus upon the elements set out in ORS 30.866(1)(a):

"(1) A person may bring a civil action * * * for a court's stalking protective order * * * against a person if:

"(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person's immediate family or household thereby alarming or coercing the other person[.]"

(Emphasis added.) Among other things, ORS 163.730(3) defines "contact" as:

"(a) Coming into the visual or physical presence of the other person; [or]

"(b) Following the other person[.]"

Defendant does not dispute that plaintiff sufficiently proved that, under the foregoing definition of "contact," he "engage[d] in repeated and unwanted contact," ORS 30.866(1)(a), with plaintiff. The gravamen of defendant's argument, rather, concerns the mental-state requirement set out in ORS 30.866(1)(a), that is, whether plaintiff proved that defendant acted with a necessary mental state respecting his contacts with her. That question, in turn, involves determining the extent to which the requisite mental states set out in ORS 30.866(1)(a) apply to the remaining parts of that statute. (3)

We begin by examining the text and context of ORS 30.866(1), to ascertain the legislature's intent. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993) (explaining methodology). As noted, ORS 30.866(1)(a) requires that a person accused of stalking in a civil proceeding "intentionally, knowingly or recklessly engage[] in repeated and unwanted contact with the other person * * * thereby alarming or coercing the other person." At the outset, we observe that the word "thereby," which denotes causation, precedes the words "alarming" and "coercing." Consequently, the text of ORS 30.866(1)(a) demonstrates that the legislature did not intend to require any culpability on a defendant's part respecting any alarm or coercion that the recipient of the contact experiences; rather, the terms "alarming" and "coercing" speak to the actual, subjective effect that a defendant's conduct has upon the recipient. Compare ORS 163.732(1) (crime of stalking requires that person "knowingly alarm[] or coerce[]" another person or member of that person's family or household).

The legislature did, however, impose a mental-state requirement in ORS 30.866(1)(a) respecting a defendant's conduct in contacting another person, by requiring that a defendant intentionally, knowingly, or recklessly "engage[] in repeated and unwanted contact with the other person." The placement of the adverbs "intentionally," "knowingly," and "recklessly" immediately before the verb "engage[]" demonstrates that those words modify the verb "engage[]." Thus, the requisite mental states attach to the act of "engag[ing]" in the contact in question with the other person, such as coming into the visual or physical presence of that person, or following that person. See ORS 163.730(3)(a) and (b) (setting out those definitions of "contact," among others; referring to contact with "the other person").

We further observe that the adjectives "repeated" and "unwanted" modify the object "contact." Because those adjectives serve to describe the type of contact in which a defendant intentionally, knowingly, or recklessly must engage, we conclude from the text that a defendant must act intentionally, knowingly, or recklessly respecting the repeated and unwanted nature of the contacts in question.

The context of ORS 30.866(1)(a), which includes other related statutes, PGE, 317 Or at 611, helps to clarify the nature of the requisite mental states identified in that statute and how they apply to the described conduct. ORS 161.085 sets out the following definitions for purposes of the Oregon Criminal Code: (4)

"(7) 'Intentionally' or 'with intent,' when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.

"(8) 'Knowingly' or 'with knowledge,' when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.

"(9) 'Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

Applying those definitions to ORS 30.866(1)(a), we conclude that ORS 161.085(7) requires that a defendant act with a conscious objective to engage in repeated and unwanted contact with the other person; ORS 161.085(8) requires that a defendant act with an awareness that he or she is engaging in repeated and unwanted contact with that person; and ORS 161.085(9) requires that a defendant be aware of and then consciously disregard a substantial and unjustifiable risk that he or she is engaging in repeated and unwanted contact with that person, and the risk must be of such a degree that a reasonable person would not have disregarded it. Stated differently, at a minimum (that is, in the case of "recklessly"), a defendant subjectively must be aware of a substantial and unjustifiable risk that the contacts in question are repeated and unwanted by the recipient, and then consciously and unreasonably disregard that risk.

That, in turn, demonstrates that ORS 30.866(1)(a) speaks to a defendant's mental state and actions with regard to a particular person -- in other words, a defendant at least recklessly must direct his or her repeated and unwanted contacts toward a targeted, particular person. By contrast, a defendant who intentionally, knowingly, or recklessly places himself or herself in a particular location without any awareness of a substantial and unjustifiable risk that the contacts in question are repeated and unwanted by a particular person cannot be said to have acted with the minimal requisite mental state in respect of "contact[ing]" that person.

To summarize (particularly as applicable to this case): Under ORS 30.866(1)(a), plaintiff must have proved that, in at least two instances of coming into her visual or physical presence, defendant had been aware of a substantial and unjustifiable risk that she did not want defendant in her presence, and then consciously had disregarded that risk when a reasonable person would not have done so.

With that construction of ORS 30.866(1)(a) in mind, we turn to the facts of this case. We begin by making several observations regarding our standard of review. At the outset, we note that ORS 30.866 sets out a unique proceeding, in which a plaintiff files a civil action to obtain an SPO, the entry of which depends upon some standards common to the criminal law. See ORS 30.866(1) (identifying proceeding as "civil action"); ORS 30.866(1)(a) (setting out mental states of intentionally, knowingly, or recklessly); ORS 30.866(2) (setting out probable-cause standard for entering temporary civil SPO). Regardless of whether this case can be characterized as "civil" or "criminal," however, our standard of review respecting the challenged ruling on the evidentiary issue -- specifically, the trial court's denial of defendant's motion to dismiss, at the close of plaintiff's case, based upon insufficient evidence -- is the same, as the citations below demonstrate.

We first note that we must view the evidence in the record, and all reasonable inferences to be drawn therefrom, in favor of plaintiff, the nonmoving party. See State v. Krummacher, 269 Or 125, 137, 523 P2d 1009 (1974) (in deciding whether trial court erred in denying defendant's motion for judgment of acquittal, conflicts in evidence must be viewed in state's favor); Anderson v. Sturm, 209 Or 190, 191, 303 P2d 509 (1956) (in reviewing sufficiency of evidence on defendant's motion for nonsuit, court views evidence, and every reasonable inference to be drawn therefrom, in plaintiff's favor). Further, it is a question of law whether the evidence presented was sufficient to support the elements required to obtain an SPO. See State v. Belt, 325 Or 6, 11, 932 P2d 1177 (1997) (question of law whether evidence sufficient to support requisite element of criminal statute at issue); State Farm v. Century Home, 275 Or 97, 105, 550 P2d 1185 (1976) (same, regarding civil action). In evaluating plaintiff's evidence, we must determine whether she presented enough evidence, as a matter of law, to permit reasonable persons to conclude that the evidence established each element by the requisite burden of proof (here, preponderance of the evidence). See State v. Herrera, 286 Or 349, 360, 594 P2d 823 (1979) (so stating, in context of submission of defense to jury in criminal case); Pattle v. Wildish Construction Co., 270 Or 792, 798, 529 P2d 924 (1974) (so stating, in context of motion for nonsuit in civil case at close of plaintiff's evidence).

In reviewing the record, we also must be mindful that a party may establish an element of a criminal offense or a civil action by circumstantial evidence and reasonable inferences arising from such evidence. See State v. Carson, 292 Or 451, 461, 640 P2d 586 (1982) (jury entitled to review chain of circumstances to infer criminal defendant's mental state); Lemons et al v. Holland et al, 205 Or 163, 188, 284 P2d 1041 (1955) (element of civil action may be established by circumstantial evidence and reasonable inferences arising therefrom). However, as noted above, it is a legal question whether the evidence presented is sufficient to support a particular inference. Belt, 325 Or at 12.

Finally, in assessing such an inference, the question for this court is whether the evidence presented gives rise to a reasonable inference respecting an element in question or, depending upon the circumstances, whether a conflicting reasonable inference also can be drawn. Id.; see also Lemons, 205 Or at 188 (facts so established must be such that reasonable inference may be drawn regarding element in question).

As will be seen, this case turns upon the existence of evidence, including any reasonable inference to be drawn therefrom, tending to establish defendant's mental state vis-á-vis his contacts with plaintiff. We now turn to the record and apply the foregoing principles in that regard.

As discussed at the outset of this opinion, plaintiff presented evidence of three occasions in which defendant passed by her suddenly, silently, and swiftly, when no other people were nearby -- once while plaintiff was walking to the OSU campus, once on the street in front of plaintiff's apartment building, and once on the OSU campus. On two of those occasions, upon reaching plaintiff and passing by her, defendant crossed the street diagonally away from her and made "side glances" in her direction. In addition, the record shows that, on at least three occasions during the time period in question, defendant appeared in different parts of the OSU library when plaintiff was present. Finally, on one occasion, plaintiff noticed defendant, from a distance, walking toward the School of Education building. Those occurrences, taken together, took place over a three-month period, between late September and mid-December 1995. (5)

At the close of plaintiff's evidence, the trial court, without comment, denied defendant's motion to dismiss plaintiff's complaint. The question before us is whether plaintiff presented sufficient evidence, as a matter of law, to establish each element required to obtain an SPO under ORS 30.866(1).

For purposes of our analysis, we first note that, as to the contacts in the OSU library and the first occasion (in September 1995) when defendant passed by plaintiff closely while walking to campus, plaintiff did not present evidence that, at the time that they occurred, those contacts had caused her alarm or any reasonable apprehension for her personal safety. Rather, plaintiff testified that those contacts, which had occurred over about a two-month period, had caused her concern, in that she had begun noticing defendant more and more frequently in unexpected locations. Although those contacts -- regardless of defendant's mental state at the time -- cannot be said to satisfy all the elements of ORS 30.866(1), they do provide important contextual background respecting defendant's mental state during the contacts that occurred in November and December 1995, in which defendant again passed by plaintiff in a physically close manner.

Turning, then, to those two contacts, the record demonstrates that plaintiff presented sufficient evidence to establish both that those contacts subjectively had caused her alarm, ORS 30.866(1)(a), and that they had caused her to have reasonable apprehension regarding her personal safety, ORS 30.866(1)(c). We further conclude that, contrary to one of defendant's arguments on review, plaintiff's alarm was objectively reasonable under the circumstances. ORS 30.866(1)(b).

The remaining question is whether the evidence was sufficient as a matter of law to prove that defendant had acted with a requisite mental state regarding the two contacts in question. As explained earlier, ORS 30.866(1)(a) requires plaintiff to have proved that defendant at least recklessly had engaged in repeated and unwanted contact with her, by coming into her visual or physical presence. In other words, plaintiff must have proved that, in those two instances of coming into her presence, defendant subjectively had been aware of a substantial and unjustifiable risk that she did not want defendant in her presence and then consciously had disregarded that risk when a reasonable person would not have done so.

Because defendant never said anything to plaintiff or otherwise communicated with her in any way, and because plaintiff also did not vocalize to defendant in any way (until after he had passed by her a final time in December 1995) that his repeated presence was unwanted, we must infer his mental state in contacting plaintiff exclusively from his physical conduct. The following facts in that regard are significant: (1) defendant's close physical proximity to plaintiff (between one and three feet) when no other people were nearby and, on the occasion in November, when a large, unobstructed area was available to defendant; (2) on the occasion in November, defendant's crossing the street diagonally away from plaintiff immediately upon passing her and then making "side glances" in her direction; and (3) the fact that defendant had appeared in plaintiff's presence on numerous occasions in the preceding months, on one occasion passing by plaintiff in the same physically close manner and crossing the street diagonally away upon passing her, while glancing in her direction. In light of our standard of review -- which requires that we draw all reasonable inferences in plaintiff's favor -- we conclude that those facts support the reasonable inference that defendant was aware of and then consciously and unreasonably disregarded a substantial and unjustifiable risk that, on two occasions, he had come into plaintiff's presence when she did not want the contacts. Stated differently, it reasonably can be inferred from defendant's conduct -- namely, his passing by plaintiff swiftly and closely in deserted environments, and quickly crossing away upon reaching her and glancing in her direction -- that he had targeted his contacts (albeit recklessly) toward this particular plaintiff. (6) Accordingly, the trial court did not err in denying defendant's motion to dismiss, at the close of plaintiff's case, based upon insufficient evidence.

Having rejected defendant's subconstitutional challenge, we turn to his constitutional challenges.

Defendant contends that, although ORS 30.866 creates a civil action for entry of an SPO, that statute in fact is criminal in nature, giving rise to various state and federal constitutional safeguards, including the right to a jury trial. In particular, defendant cites Article I, section 11, of the Oregon Constitution, which provides, in part:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor * * *."

(Emphasis added.) (7)

The state responds that ORS 30.866 is civil in nature and that, in any event, the procedure for entering an SPO under that statute is not the type of proceeding to which Article I, section 11, was intended to apply. For the reasons that follow, we agree with the state's latter contention.

At the outset, we note that the parties' disagreement about whether ORS 30.866 is a "civil" or "criminal" statute is based upon their respective applications of the criteria that this court identified in Brown v. Multnomah County Dist. Ct, 280 Or 95, 570 P2d 52 (1977). (8) However, this court's case law demonstrates that, even if an ostensibly civil proceeding can be characterized as a criminal prosecution under Brown, an applicable historical exception to Article I, section 11, can exempt such a proceeding from the safeguards set out in that provision. For example, in State ex rel Dwyer v. Dwyer, 299 Or 108, 698 P2d 957 (1985), this court addressed the question whether a criminal contempt proceeding for violation of a child-support order implicated Article I, section 11. After determining that, under Brown, such a proceeding might be characterized as a criminal prosecution, the court reviewed the history of criminal contempt proceedings and concluded that, when the Oregon Constitution was adopted, it already was well established that such proceedings took place without jury trials. Id. at 112-14. The court, therefore, concluded that a statutorily required court finding on a criminal contempt charge

"is wholly confined within an historical exception that was well-established when the Oregon constitutional guarantee of a jury trial in all criminal prosecutions was adopted, and the jury trial guarantee in Article I, section 11, demonstrably was not intended to reach punishment for indirect criminal contempt for violation of court orders to pay child support."

Id. at 114-15.

Similarly, in State ex rel Hathaway v. Hart, 300 Or 231, 708 P2d 1137 (1985), this court concluded that criminal contempt proceedings for restraining order violations under the Abuse Prevention Act fell within a historical exception to Article I, section 11. In so concluding, the court acknowledged that the framers of the Oregon Constitution could not have been aware of restraining orders under the Act, which was enacted in 1977. Id. at 240. However, the court determined that it could review the historical record "for analogies to restraining orders under the Act." Id. Based upon a historical exception for injunctions preventing spousal harassment, as well as the exception for criminal contempt proceedings discussed in Dwyer, the court in Hathaway concluded that the framers would have viewed restraining order proceedings under the Act as an exception to Article I, section 11, and, consequently, that no right to a jury trial applied. Id. at 241-42.

Consistent with Dwyer and Hathaway, we shall review the historical record to determine whether an SPO entered under ORS 30.866 falls within a historical exception to Article I, section 11. As in Hathaway, the framers of the Oregon Constitution cannot be said to have contemplated specifically the entry of an SPO, as the legislature did not enact the anti-stalking statutes as a whole until 1993. Here, however, the purpose of our inquiry is not to try to match historical facts; rather, our goal is to identify relevant principles that illuminate the matter at hand. See generally State v. Delgado, 298 Or 395, 692 P2d 610 (1984) (examining historical record to determine scope of framers' intent respecting types of weapons encompassed within constitutional right to bear arms).

To that end, we think it significant that, before statehood, the Statutes of Oregon provided for proceedings to prevent the commission of crimes. Under those statutes, upon receipt of a complaint of a threat to commit an offense against another person or another person's property, a magistrate could examine both the complainant and the accused person, as well as any potential witnesses. The accused person, in turn, had a statutory right to be assisted by counsel. Statutes of Oregon, Act to Define Crimes and Misdemeanors, and Regulate Criminal Proceedings, ch XVI,