No. 632 September 5, 2024 741

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERNESTO DENIZ ZARAZUA,

Defendant-Appellant.

Linn County Circuit Court

22CR14592; A180316

Brendan J. Kane, Judge.

Submitted June 12, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and James Brewer, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Greg Rios, Assistant Attorney 

General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

POWERS, J.

Affirmed.
742 State v. Zarazua

POWERS, J.

Defendant appeals from a judgment of conviction for 

stalking, ORS 163.732, assigning error to the trial court’s 

denial of his motion for judgment of acquittal (MJOA) for 

that offense.1

 The crime of stalking requires proof that a 

defendant engaged in repeated and unwanted contact with 

the victim; thus, there must be at least two actionable contacts. Defendant engaged in conduct with the victim, E, that 

was unwanted. He argues, however, that his actions were 

all part of a single course of conduct, and therefore a single 

contact. We conclude that there was sufficient evidence of 

more than one actionable contact, and therefore we affirm.

We review the denial of an MJOA to determine 

whether, after viewing the facts and all reasonable inferences in the light most favorable to the state, a rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. State v. Murphy, 306 Or App 535, 

536, 475 P3d 100 (2020), rev den, 367 Or 559 (2021).

We recount the facts in accordance with that standard. E was with defendant at his house in Salem one evening. They had just broken up, and E decided to leave. At 

defendant’s urging, she came back inside the house and 

stayed for a while. She decided to leave again, and when 

she prepared to drive away, defendant jumped onto the hood 

of her car to prevent her from leaving. He hung onto the 

hood as she backed up, then he went around to the back 

of the car to block her from backing up. He then reached 

through the open passenger-side window, unlocked the door, 

and took the keys out of the ignition. He took the keys inside 

the house. E got out of her car and screamed at defendant to 

return her keys. She was trying to make noise so that defendant’s landlord would hear and “help stop it.”

E went back inside the house, continuing to demand 

that defendant return her keys. She tried to open defendant’s 

hand to get her keys back. He said, “Oh, this is going to get 

violent, isn’t it?” E stopped and “just stood there.” Defendant 

dropped the keys and started crying. E picked up her keys.

1 The 2021 version of ORS 163.732, which applies in this case, was amended 

in 2024. See Or Laws 2024, ch 90, § 2. Because the amendments do not affect the 

analysis in this case, we cite the current version of the statute. 
Cite as 334 Or App 741 (2024) 743

Defendant asked E to stay the night, and she said 

no. Eventually, they started watching a movie, then E told 

defendant that she was going to leave, that she felt “weird” 

being there after they had broken up, and that she did not 

want to stay. At that point it was about 4:00 a.m. When E 

said she was going to leave, defendant started hitting himself in the head as hard as he could. When she walked toward 

the door, he “flipped over the bed” and blocked the door to 

the room. Then he sat down on a chair, which allowed E to 

run out of the room. As she was leaving, she could hear that 

he was “trashing” the room—flipping the table, and things 

were “flying” and crashing on the floor.

E got in her car and drove away. She took Interstate 

5 (I-5) toward her home. After driving for about 10 to 15 minutes, she saw a text message from defendant that said, “I’m on 

my way. I’m on I-5.” When she looked back, she could see the 

headlights of defendant’s vehicle catching up to her. Defendant 

called E, and when she answered the phone, she told him to 

“go home,” and she hung up. After that, he called her, and 

when she did not answer, he drove in the lane next to her and 

gestured for her to pick up the phone. She tried to change 

lanes, but he pulled in front of her and then braked “so that 

[she would] stop.” Defendant kept calling her. E answered the 

phone again to tell defendant, again, to go home. Defendant 

screamed into the phone “at the top of his lungs.”

As they approached the Albany exit, defendant was 

ahead of E, “doing the brake check again.” He drove ahead 

and pulled over near the Albany exit sign so that he could 

see if she was going to exit, which she usually did, or keep 

driving.

E exited at Albany and saw that defendant was following her. She was “freaking out” because she lived alone 

and did not know what defendant’s intentions were. She felt 

that “he was unstable * ** and not in control of his emotions.” Defendant kept trying to call E. Defendant called her 

at least 22 times between 4:00 a.m. and 5:00 a.m., including 

a stretch of 17 times in a row that she did not answer. At 

one point, E answered the phone, and defendant told her 

that it would end only if she called the police. E said, “Okay,” 

then pulled over at a traffic light in Albany and called 9-1-1. 
744 State v. Zarazua

She then drove toward a police station in Albany. When she 

would stop at a traffic light, defendant would pull up next 

to her—sometimes in the oncoming traffic lane—and make 

gestures like “answer the phone,” or “what are you doing?”

E pulled into the police station parking lot. 

Defendant initially drove past the lot, then made a U-turn, 

and parked a couple of spaces away from E. He started to 

get out of his car to approach her car. When he saw police 

officers approaching, he looked up, saw it was a police station, and got back into his car. An officer escorted E into the 

police station, and an officer stayed outside with defendant.

Defendant was charged with stalking. He waived 

his right to a jury and was tried to the court. After the state 

rested, defendant moved for a judgment of acquittal, arguing that the state had not adduced sufficient evidence that 

he had engaged in repeated unwanted contact. He argued 

that the evidence showed only a single, continuing contact. 

The trial court denied the motion, and ultimately found 

defendant guilty of stalking.2

On appeal, defendant argues that the trial court 

erred by denying his MJOA.

ORS 163.732(1) provides:

“A person commits the crime of stalking if:

“(a) The person knowingly alarms or coerces another 

person or a member of that person’s immediate family or 

household by engaging in repeated and unwanted contact 

with 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.”

A contact includes “[c]oming into the visual or physical presence of the other person,” “[f]ollowing the other person,” 

2 Defendant was also charged with an open-container violation. The trial 

court acquitted him of that violation.
Cite as 334 Or App 741 (2024) 745

“[s]ending or making written or electronic communications 

in any form to the other person,” “[s]peaking with the other 

person by any means,” and “[c]ommitting a crime against 

the other person.” ORS 163.730(3)(a), (b), (d), (e), (g).

Defendant challenges only whether there was 

sufficient evidence of “repeated and unwanted contact.” 

Specifically, defendant disputes whether there was sufficient 

evidence of more than one alarming—i.e., “actionable”—contact. A contact is “actionable” if individually it gives “rise to 

subjective and objectively reasonable alarm or coercion.” K. 

R. v. Erazo, 248 Or App 700, 706, 274 P3d 214 (2012).

Here, the evidence was sufficient for a factfinder 

to find more than one actionable contact. First, defendant 

jumped on the hood of E’s car to prevent her from leaving, 

and then took her keys out of the ignition, brought them into 

his house, and physically tried to prevent E from getting 

them back. E was alarmed enough to scream in an attempt 

to get help from defendant’s landlord. A factfinder could find 

that her alarm was objectively reasonable.

Second, defendant later tried to block E from leaving 

his room, was hitting himself in the head, and after she ran 

out, was trashing the room. E left to drive home and, after 

driving for 10 to 15 minutes, saw that defendant had contacted her again. He continued to call her repeatedly even 

after she told him to go home. Defendant was also following 

her, and driving in front of her and braking, which risked 

an accident at highway speeds. In addition, he positioned 

his car so that he would be able to follow her whether she 

kept driving on I-5 or took the Albany exit. E was alarmed 

enough by that conduct that she called 9-1-1 and drove to a 

police station for help. A factfinder could, again, find that 

her alarm was objectively reasonable.

From those facts, a rational factfinder could find 

that there were at least two distinct actionable contacts. 

Assuming without deciding that continuous conduct cannot constitute multiple contacts, defendant’s contacts here 

were not linked by continuous conduct. They were distinct 

courses of conduct, involving different alarming behavior. 

E had felt that she could drive home, even though she lived 
746 State v. Zarazua

alone, until defendant—who had been trashing his room 

when she left—began following her on I-5.

We are not persuaded by defendant’s arguments to 

the contrary. Defendant’s conduct was not analogous to that 

described in Jennings v. Gifford, 211 Or App 192, 196-97, 

154 P3d 163 (2007) (concluding that the respondent’s coming 

into visual range of the petitioner’s daughter twice on one 

occasion while looking for her at her school did not satisfy 

requirement of “repeated and unwanted contact” in ORS 

163.738(2)(a)(B)). We also are not persuaded by the argument based on State v. Witherspoon, 250 Or App 316, 325, 

280 P3d 1004 (2012), involving the sentencing concept of a 

continuous and uninterrupted course of conduct constituting a single criminal episode.

As discussed above, the evidence in this case supports at least two actionable contacts—even setting aside 

that the contacts were of different types, accomplished by 

different means—with at least one break in which defendant and E were not in contact, and defendant was occupied 

with trashing his room rather than continuing to engage 

in actionable contact. That is, when defendant, in E’s direct 

presence, blocked her from leaving his room, then began 

“trashing his room” while E left and drove away, that was at 

least one contact, which was followed by a break. Defendant 

then again contacted E when he followed E and drove dangerously on the freeway, coming into her visual range, which 

was a significantly different contact from what had occurred 

before the break.

Affirmed.