State v. Atwood

• Decision Date: 06 October 2004
• Citation: 195 Or. App. 490,98 P.3d 751
• Parties: STATE of Oregon, Respondent, v. Michael ATWOOD, Appellant.
• Court: Oregon Court of Appeals

98 P.3d 751

195 Or. App. 490

STATE of Oregon, Respondent, v. Michael ATWOOD, Appellant.

010097CR; A117917.

Court of Appeals of Oregon.

Argued and submitted May 11, 2004.

Decided October 6, 2004.

Peter Gartlan, Chief Deputy Public Defender, argued the cause for appellant. On the brief were Peter Ozanne, Executive Director, Office of Public Defense Services, and Stephanie Hortsch, Deputy Public Defender.

Katherine H. Waldo, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Assistant Attorney General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.

HASELTON, P. J.

Defendant, who was convicted of two counts of disorderly conduct, ORS 166.025(1)(a), (b), appeals, challenging the denial of his motions for judgment of acquittal on those counts. As described below, with respect to the first count, we conclude that the evidence was legally insufficient to allow a trier of fact to infer that defendant engaged in "violent, tumultuous or threatening behavior" within the meaning of ORS 166.025(1)(a), as construed in State v. Cantwell, 66 Or.App. 848, 676 P.2d 353, rev. den., 297 Or. 124, 681 P.2d 134 (1984). In particular, the evidence could not support a determination that defendant had engaged in the "the use of physical force or physical conduct which is immediately likely to produce the use of such force[.]" Id. at 853, 676 P.2d 353. However, we conclude, with respect to the second count, that the state presented legally sufficient evidence that defendant, with reckless intent, made "unreasonable noise," ORS 166.025(1)(b), and, particularly, that defendant's purported "communication [was] not intended as such" but was, instead, "merely a guise to disturb persons." State v. Marker, 21 Or.App. 671, 678, 536 P.2d 1273 (1975) (quoting In re Brown, 9 Cal.3d 612, 619, 108 Cal.Rptr. 465, 469, 510 P.2d 1017 (1973), cert. den., 416 U.S. 950, 94 S.Ct. 1959, 40 L.Ed.2d 300 (1974)). Consequently, we reverse the conviction for disorderly conduct under ORS 166.025(1)(a) and otherwise affirm.

In reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state, "accepting reasonable inferences and reasonable credibility choices that the factfinder could have made." State v. Presley, 175 Or.App. 439, 443, 28 P.3d 1238 (2001) (citations omitted). So viewed, the record substantiates the following facts: On April 2, 2001, defendant's daughter, a student at the North Lake County School, missed her bus home. She went to the school office and asked the district secretary, Julie Smith, if she could use the phone to call defendant to come pick her up. After a brief conversation, Smith told defendant's daughter that she could use the phone only if she improved her attitude. Defendant's daughter responded by leaving the office and calling defendant from a pay phone.

Soon thereafter — and in apparent response to the telephone call — defendant arrived at the school office. By that time, Monica Harmon, the school receptionist, was standing at the front counter and Smith was in the back of the office in the restroom. Defendant appeared angry and demanded to see both Smith and the school principal, Lester McCormick. Harmon walked from the office to the library to get McCormick, and defendant followed her. Defendant, Harmon, and McCormick then returned to the school office, and McCormick stopped outside the office door with defendant. Harmon immediately entered the office and warned Smith not to come out; Harmon remained with Smith in the back of the office.

Outside the office door, defendant, who appeared upset, expressed to McCormick his concern about Smith and asked to see her. McCormick told defendant that he would check if Smith was still in the office. McCormick found Harmon and Smith in the office and told them not to come out because defendant was agitated. McCormick then returned to defendant and told him that Smith was gone for the day. According to McCormick, defendant then "blew up" and

"became very agitated and upset and he slammed, he brought up his fists and pointed his finger and was, he had a concern about something that had taken place with one of the kids.

"* * * * *

"[W]hen he brought up his fists and pointed he wanted me to let [Smith] know that he was going to take off her head and shit down her throat."

Defendant's voice was loud, but he was not screaming. McCormick was not concerned for his own safety because he did not feel that defendant was trying to provoke a response from him. McCormick did have concerns for his staff, fearing that, if Smith came out of the office, "there would have been a situation that the safety of myself and others * * * would have been in jeopardy."

After that initial outburst, McCormick asked defendant to leave. As defendant walked through a set of doors, he turned around, and screamed, "You let her know I'm going to rip off her fucking head and shit down her throat." Defendant yelled that obscenity "at the top of his lungs." As a result of the incident, several teachers involved in after-school activities came out of their classrooms to see what was happening and much of the school business was halted for the day.

Defendant was charged with one count of menacing, ORS 163.190, and two counts of disorderly conduct, ORS 166.025. The first of the disorderly conduct counts alleged that defendant had engaged in "tumultuous and threatening behavior" in violation of ORS 166.025(1)(a), and the second count alleged that defendant had made "unreasonable noise" in violation of ORS 166.025(1)(b). The case was tried to the court, and the state relied on evidence of defendant's interaction with McCormick as establishing the first of the disorderly conduct counts. As the basis for the second count, the state appears to have relied, without clear differentiation, on either defendant's interaction with McCormick or defendant's screaming as he left the office.

After presentation of the state's case, defendant moved for judgments of acquittal on all counts.¹ With respect to the first disorderly conduct count, defense counsel argued that, as construed in Cantwell, ORS 166.025(1)(a) prohibits "physical acts of violence," which the Cantwell court also characterized as "physical acts of aggression." Cantwell, 66 Or.App. at 852, 676 P.2d 353. Defense counsel continued:

"And so when you're looking at that statute under [that subsection], there's got to be an act of violence, there certainly was a threat of violence, but there wasn't a physical act. The most that anybody could say was that he had his fist up or that he shook his finger. As I understood the Principal's testimony that was, I took it to understand it was more directed at the Principal as to making a point, not that he was swinging at him or doing anything."

With respect to the second disorderly conduct count, defendant contended that the evidence was legally insufficient to establish that he had made "unreasonable noise" within the meaning of ORS 166.025(1)(b) either in his confrontation with McCormick or when he screamed as he left the office. Relying on Marker, defendant contended that the state's evidence was insufficient to permit the court, as the trier of fact, to find that his statements, however loudly declaimed, were not, in fact, intended as communication but, instead, were merely "a guise to disturb persons." 21 Or.App. at 679,536 P.2d 1273.

The court denied defendant's motions as to both of the disorderly conduct counts and subsequently convicted defendant on those counts. On appeal, defendant reiterates his arguments regarding the purported insufficiency of the state's proof as to each count.

We begin with the first count and ORS 166.025(1)(a). ORS 166.025 provides, in part:

"(1) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:

"(a) Engages in fighting or in violent, tumultuous or threatening behavior[.]"

No statute defines the term "violent, tumultuous or threatening behavior." However, in Cantwell we addressed the content of that term. There, the defendants, who had been charged with disorderly conduct, demurred, arguing that, under Article I, section 8, of the Oregon Constitution, ORS 166.025(1)(a) was unconstitutionally overbroad and vague. The trial court sustained the demurrer, and we reversed. With respect to overbreath, we concluded that subsection (1)(a) did not proscribe constitutionally protected expression:

"Defendants argue that, under certain circumstances, `behavior' could include actual or symbolic constitutionally-protected speech. We do not read the statute to encompass speech in the term `behavior,' but construe it to refer only to physical acts of violence. The subsection of ORS 166.025 relating to speech has already been stricken from the statute. State v. Spencer, [289 Or. 225, 611 P.2d 1147 (1980)]. `[F]ighting' and `violent, tumultuous or threatening behavior' describe physical acts of aggression, not speech[.]"

Cantwell, 66 Or.App. at 852, 676 P.2d 353 (emphasis added). Further, with respect to vagueness, we concluded:

"Recognizing that it would be impossible for the legislature to detail all the potential ways in which such breaches could be committed, we are satisfied that the statutory terminology, `fighting' or `violent, tumultuous or threatening behavior,' sufficiently enables a person of common intelligence to know what is prohibited. We construe the terms `fighting,' `violent,' `tumultuous,' and `threatening,' to have their commonly understood referents to physical force. We hold that ORS 166.025(1)(a) makes unlawful only the use of physical force or physical conduct which is immediately likely to produce the use of such force and which is intended to create or

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