State v. Bailey

• Decision Date: 30 July 2009
• Docket Number: CC 200406042A.,SC S056152.,CA A126255.
• Citation: 213 P.3d 1240,346 Or. 551
• Parties: STATE of Oregon, Respondent on Review, v. Kenneth Wayne BAILEY, Petitioner on Review.
• Court: Oregon Supreme Court

213 P.3d 1240

346 Or. 551

STATE of Oregon, Respondent on Review, v. Kenneth Wayne BAILEY, Petitioner on Review.

CC 200406042A.

CA A126255.

SC S056152.

Supreme Court of Oregon, En Banc.

Argued and Submitted January 14, 2009.

Decided July 30, 2009.

On review from the Court of Appeals.^*

Bronson D. James, Chief Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defender Services.

Pamela J. Walsh, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Rankin Johnson IV, Portland, filed a brief for amicus curiae Oregon Criminal Defense Lawyers Association.

GILLETTE, J.

This is one of two cases that we decide today involving a defendant's challenge to a conviction under ORS 162.285 for "tampering with a witness." Both cases involve the same analytical question: Can a person commit the crime of "tampering with a witness," under ORS 162.285(1)(a), which involves inducing "a witness or a person the person believes may be called as a witness in any official proceeding" to withhold testimony, when no "official proceeding" is pending at the time of the inducement? In this case, the Court of Appeals concluded that ORS 162.285(1)(a) does not require that an official proceeding be pending at the time of the "tampering" conduct. State v. Bailey, 219 Or.App. 526, 530-34, 183 P.3d 232 (2008). For the reasons set out below, we agree with the Court of Appeals' interpretation of the statute in that respect. However, because we disagree with the Court of Appeals' conclusion that the evidence was sufficient to support defendant's conviction under that interpretation, we reverse the court's decision on that ground.

Defendant was charged with witness tampering based on threats that he made to his daughter after she told him that she intended to call the police to report that defendant had in his possession some all terrain vehicles (ATVs) that he had stolen.¹ At trial, defendant's daughter testified that, on January 9, 2004, when she first told defendant of her intentions, he warned her that if she "made the call * * * he was going to kill [her] and that [it] would be the stupidest thing [she] could ever do in [her] life." The daughter also testified that, immediately after making that initial threat, defendant left a message on her cell phone answering service. The prosecutor played that message for the jury. In it, defendant warned his daughter that, "if you make fucking phone calls starting the bullshit, it'll be the last phone call you fucking make." Defendant's daughter also testified that, on the same day that defendant made the forgoing threats, she "went down * * * and had a restraining order put on him."

In support of the witness tampering charge, the prosecutor played recordings of several other messages that defendant had left on his daughter's answering service in the days following the original (January 9, 2004) threats. In one, defendant seemed to be clarifying his earlier phone message: "I didn't threaten to fucking kill you. * * * What I said was, * * * I'll cut off your fucking phone service—in fact, it's now cut off." In that same message, defendant made several references to things that his daughter had said or should say to "the court." He asked his daughter "how [she] could * * * go in there and lie to the court and tell them shit like that," and then instructed her to

"be sure you keep this recording and take it to the court and let them hear it. `Cause there's nothing in there that threatens your life. It said, `It'll be the last phone call you make, [because] I'll shut off your phone.' You're pretty stupid.

"I hope you get fired. I hope you lose your car. I hope you lose your whole fucking life. See ya. You know where I'll be if you ever want to talk about things. But you're done. You—you just made the biggest mistake you could ever fucking make. Bye."

In yet another message, defendant reminded his daughter that her neighbors had seen one of the ATVs at her house and likely thought it was hers. Defendant then suggested that his daughter had "lied to the court" about living in an apartment and buying a trailer, reminded her that he had been paying her taxes and car insurance, and suggested that someone who did those things would hardly be considered abusive toward her. He added,

"We'll go on to court. I'll tell them about your restraining order. When the judge sees how much you lied, then when everybody goes to court, with me against you and your restraining order gets dropped, you're going to think twice about what you were doing. Or you could pull your head out of your ass, go back down to the court and drop your stupid restraining order."

In another message, defendant told his daughter that he would be "sure to tell [the court]" about an apparently unsuccessful attempt to get a restraining order against "Jerry." In yet another message, defendant advised his daughter that he was going to help her ex-husband gain custody of the daughter's child. And in a final telephone message, defendant warned that "you'll be homeless Monday morning if you make that phone call."

At the close of the trial, defendant moved for a judgment of acquittal on the witness tampering charge. The trial court denied the motion and the charge then went to the jury. Defendant ultimately was found guilty of witness tampering, along with other crimes relating to the stolen ATVs and other stolen vehicles.

Defendant appealed, arguing that he was entitled to a judgment of acquittal on the witness tampering charge. Defendant pointed out that the relevant part of ORS 162.285(1)(a) defines witness tampering in terms of "induc[ing] or attempt[ing] to induce a witness or a person the person believes may be called as a witness in any official proceeding to * * * unlawfully withhold any testimony." (Emphasis added.) Defendant asserted that the statute requires that an official proceeding be pending at the time of the tampering conduct and noted that the statements and messages that the state relied on to prove its case occurred long before any "official proceeding" ever was contemplated. Defendant also argued that the statements were directed at stopping his daughter from speaking with police, and were in no way concerned with testimony in any official proceeding.

The Court of Appeals was not persuaded. It concluded that, to the extent that ORS 162.285(1)(a) applies when a defendant "believes" that the other person "may be called as a witness in any official proceeding" (emphasis added), it does not require that an official proceeding be pending at the time of the tampering conduct. Bailey, 219 Or.App. at 530-34, 183 P.3d 232. The Court of Appeals also concluded that, although defendant's threats ostensibly were directed at his daughter's intention to make a police report about the stolen ATVs, a reasonable jury could infer that they also were directed at coercing her into withholding testimony in any criminal proceeding that might arise out of her report. Id. at 535, 183 P.3d 232.

Before this court, defendant renews his argument that witness tampering under ORS 162.285(1)(a) occurs only when an official proceeding is pending at the time of the "tampering" conduct. To assess the validity of defendant's argument, we must interpret the witness tampering statute-a task that involves application of the interpretive paradigm set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.3d 1143 (1993), as modified by subsequent amendments to ORS 174.020 and this court's recent interpretation of that statute in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). According to that paradigm, we first examine the text and context of the statute and then proceed to any relevant legislative history that the parties have offered, giving that history such weight, if any, as it appears to merit. Gaines, 346 Or. at 171-72, 206 P.3d 1042.

ORS 162.285(1) provides:

"A person commits the crime of tampering with a witness if:

"(a) The person knowingly induces or attempts to induce a witness or a person the person believes may be called as a witness in any official proceeding to offer false testimony or unlawfully withhold any testimony; or

"(b) The person knowingly induces or attempts to induce a witness to be absent from any official proceeding to which the person has been legally summoned."

(Emphasis added.)

There is no contention that defendant's daughter had been legally summoned to any official proceeding or that defendant could be found guilty of tampering with a witness under paragraph (b) of ORS 162.285(1). We therefore focus our analysis on paragraph (a) and, particularly, on the phrase "a person [whom] the person believes may be called as a witness in any official proceeding."

Taken by itself, one could read that phrase in the way that defendant suggests. A reader could conclude that the verb "believe" has a single, simple object—the person's status as a witness—and that the present existence of an official proceeding is an element that the state must prove, whether the person actually has been designated as a witness, or only is believed to be a potential witness, at that proceeding. Of course, because of the ordering of the words, a reader would be more likely to suppose that the phrase "in any official proceeding" merely modifies the phrase that precedes it, describing the sort of witness ("a witness in any official proceeding") that the defendant must believe that the other person now is or may become. But our sense that that latter interpretation is a more natural reading of the words does not mean that that interpretation necessarily is the correct one. The fact remains that both readings of the words are grammatically and logically plausible.

The parties each...