State v. Brown

• Decision Date: 17 February 2004
• Docket Number: 2 CA-CR 2003-0001
• Parties: THE STATE OF ARIZONA, Appellee, v. LAWRENCE BROWN, JR., Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee,

v.LAWRENCE BROWN, JR., Appellant.

2 CA-CR 2003-0001

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Filed: February 17, 2004

OPINION

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20021979、

Honorable Frank Dawley, Judge Pro Tempore

Honorable Howard Fell, Judge Pro Tempore

AFFIRMED

Terry Goddard, Arizona Attorney General

By Randall M. Howe and Michael T. O'Toole

Phoenix

Attorneys for Appellee

Mark L. Langley

Tucson

Attorney for Appellant

PELANDER, Presiding Judge.

¶1 After a jury trial, appellant Lawrence Brown was convicted of aggravated harassment and later sentenced to an aggravated prison term of 2.5 years. On appeal, Brown argues the trial court erred in denying his motion to dismiss and reurges the arguments he madein that motion. Brown contends Arizona's harassment statute, A.R.S. § 13-2921, is unconstitutionally vague and overbroad and violates his First Amendment right to freedom of speech. See U.S. Const. amend. I. We conclude that the statute does not implicate the First Amendment and that Brown lacks standing to challenge the statute on the other grounds. Therefore, we affirm.

BACKGROUND

¶2 We view the largely undisputed facts and all reasonable inferences therefrom in the light most favorable to sustaining the conviction. See State v. Henry, 205 Ariz. 229, 12, 68 P.3d 455, 12 (App. 2003). In October 2000, Brown and the victim, D., met and began dating. In February 2002, D. ended the relationship. Although D. told Brown "several times," both "in person [and] over the phone" that she no longer wanted to see him, Brown "just wouldn't stay away" from her. D. then requested the Tucson City Court to issue an "Injunction Against Harassment" against Brown. See A.R.S. § 12-1809(A) ("A person may file a verified petition with a magistrate, justice of the peace or superior court judge for an injunction prohibiting harassment."). After a March 2002 hearing, which Brown attended, a city court magistrate granted D.'s request and ordered Brown to refrain from any contact with her without permission of the court.¹ That injunction order remained valid and in effect at all pertinent times.

¶3 Notwithstanding the injunction against harassment, Brown continued to call D. on both her home and cellular telephones. D. eventually "got tired of answering [Brown's] calls" and called the police, apparently sometime in May 2002. The police told D. to keep a log of thecalls and that "they would come out and verify the log from the Caller ID." In June, a police officer went to D.'s home and reviewed her caller identification system, her log of the calls, and the injunction against harassment. The officer then located Brown, who admitted to having called D. and having known about the injunction issued against him. Based on his having called D. in violation of the injunction, the state later charged Brown with aggravated harassment, in violation of A.R.S. § 13-2921.01(A)(1).²

¶4 Before trial, Brown moved to dismiss the charge, arguing that the harassment statute was vague, overbroad, and impinged on his First Amendment rights. After hearing argument, the trial court (Judge Dawley) denied the motion. This appeal followed Brown's ensuing jury trial, conviction, and sentencing.

DISCUSSION

¶5 Sections 13-2921 and 13-2921.01, A.R.S., define the crimes of harassment and aggravated harassment. Under § 13-2921(A)(1), "[a] person commits harassment if, with intent to harass or with knowledge that the person is harassing another person, the person... [a]nonymously or otherwise communicates or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses." Section 13-2921(E) provides that "'harassment' means conduct directed at a specific person which would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person." Subsection (D) states that§ 13-2921 "does not apply to an otherwise lawful demonstration, assembly or picketing." And, § 13-2921.01(A)(1) defines the aggravated harassment charge of which Brown was convicted:

A person commits aggravated harassment if the person commits harassment as provided in § 13-2921 and... [a] court has issued an order of protection or an injunction against harassment against the person and in favor of the victim of harassment and the order or injunction has been served and is still valid.

¶6 In denying Brown's pretrial motion to dismiss, Judge Dawley reasoned:

There's some interesting issues here, but the bottom line is this, that the First Amendment, like every other Amendment, is not absolute. The real question is whether the State has passed a law that has a legitimate purpose that is sufficiently narrow and that doesn't just arbitrarily or overbroadly interfere with communication and a person's right to speech.

The focus of the offense of harassment is on the contact between particularized people, not on the character of the speech necessarily, although certainly that can be an element. I am required to presume a statute is Constitutional. I think that is still the law, even though we get into these different tests, I suppose, as to whether the statute affects speech or not. But I think that presumption still applies.

And then the next question is: Can I interpret it in a way that it will be constitutional? And I do. And I think that may be an oversimplification, but the fact that it's the contact and not the speech and the fact that the statute specifically requires an intent or knowledge that the person is harassing, is not sufficient to prove that contact was made or speech was made. The state has to prove the specific intent or the general knowledge that the person is harassing in the process. And I think that's what, in my opinion, saves the statute.

I. First Amendment Challenge

¶7 Brown first argues the trial court erroneously presumed that § 13-2921 is constitutional. According to Brown, the statute regulates speech on the basis of its content.Therefore, he argues, the statute must be presumed unconstitutional and analyzed under a higher level of scrutiny than that used by the trial court. The state responds that the statute regulates only non-expressive conduct and, therefore, does not implicate the First Amendment at all. The state also argues that even if the statute were interpreted to apply to speech or expressive conduct, it does so in a content-neutral fashion and that the trial court correctly applied an intermediate level of scrutiny in analyzing the statute's constitutionality. We review de novo the constitutional claims and matters of statutory interpretation raised here. See Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, 16, 19 P.3d 1241, 16 (App. 2001).

¶8 Although § 13-2921(A)(1) prohibits certain kinds of "communication," it is well established that "[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act... raise[s] no question under that instrument." Cantwell v. Connecticut, 310 U.S. 296, 309-10, 60 S. Ct. 900, 906, 84 L. Ed. 1213, 1221 (1940); see also Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 769, 86 L. Ed. 1031, 1035 (1942); State v. Starsky, 106 Ariz. 329, 332, 475 P.2d 943, 946 (1970); State v. Hagen, 27 Ariz. App. 722, 725, 558 P.2d 750, 753 (1976). As one federal court has stated, "'[p]rohibiting harassment is not prohibiting speech, because harassment is not... protected speech. Harassment is not communication, although it may take the form of speech.'" Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988), quoting State v. Thorne, 333 S.E.2d 817, 819 (W. Va. 1985) (upholding West Virginia's telephone harassment statute).

¶9 Arizona courts also have concluded that statutes similar to § 13-2921 that prohibit certain types of communication and that contain a specific intent requirement do not implicate theFirst Amendment. For example, in Hagen, an analogous case, Division One of this court upheld Arizona's telephone harassment statute, former A.R.S. § 13-895 (since renumbered A.R.S. § 132916), which provided:

It shall be unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to telephone another and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict injury or physical harm to the person or property of any person.

In finding the statute constitutional, the court stated, "[b]y specifying the intent with which the call must be made and the nature of the language prohibited, the statute clearly demonstrates that the prohibited activities find no protection under the First Amendment." 27 Ariz. App. at 725, 558 P.2d at 753; see also Starsky, 106 Ariz. at 333, 475 P.2d at 947 (in upholding disturbing the peace statute, our supreme court stated it was "inconceivable" that the First Amendment protected anyone's right to "wilfully and maliciously traverse the peace and quiet of his fellow citizens"); Baker v. State, 16 Ariz. App. 463, 466, 494 P.2d 68, 71 (1972) (in finding telephone harassment statute constitutional and First Amendment inapplicable, court stated, "[i]t is not the mere use of profanity which is subject to punishment but only profanity uttered over the telephone with the intent to terrify, intimidate, threaten, harass, annoy or offend").

¶10 Although in a broad sense § 13-2921 criminalizes certain types of "communication," we reject Brown's argument that the statute unconstitutionally regulates protected speech. Rather, criminal liability under the statute is based on the "manner" in which certain communication is conveyed and the underlying purpose for the communication. § 13-2921(A)(1). This is made clear by the statute's requirement that the communication must have been made with the specific "intent to harass." § 13-2921(A...