State v. Clark, 77-2811-C

• Citation: 591 P.2d 752,39 Or.App. 63
• Decision Date: 05 March 1979
• Docket Number: No. 77-2811-C,77-2811-C
• Parties: STATE of Oregon, Appellant, v. Deborah Louise CLARK, Respondent. ; CA 11564.
• Court: Court of Appeals of Oregon

Page 752

591 P.2d 752

39 Or.App. 63

STATE of Oregon, Appellant, v. Deborah Louise CLARK, Respondent.

No. 77-2811-C; CA 11564.

Court of Appeals of Oregon.

Argued and Submitted Oct. 19, 1978.

Decided March 5, 1979.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Stephanie A. Smythe, Deputy Public Defender, Salem, argued the cause for respondent. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.

TANZER, Judge.

The district court sustained defendant's demurrer to a criminal complaint ¹ charging her with disorderly conduct on the ground that the underlying statute was unconstitutionally vague. The state appeals.

The statute at issue, ORS 166.025(1)(h), provides "(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, he:

" * * *

"(h) Created a hazardous or physically offensive condition by any act which he is not licensed or privileged to do."

We have hitherto upheld subsections (a) and (c), See State v. Donahue, Or.App., 591 P.2d 394 (decided today), but not subsection (h). Our first duty is to construe the statute in a constitutional manner if possible, State v. Hodges, 254 Or. 21, 26, 457 P.2d 491 (1969).

ORS 166.025 was derived from New York Revised Penal Law § 240.20, and was "directed at conduct causing what the common law termed a breach of the peace." Oregon Criminal Code of 1971, 215, Commentary § 220. In borrowing a statute from another state, the legislature is assumed to adopt the then existing case law interpretation of that statute in the state of origin, absent any indication to the contrary. State v. Sallinger, 11 Or.App. 592, 504 P.2d 1383 (1972).

In Seymour v. Seymour, 56 Misc.2d 546, 289 N.Y.S.2d 515 (1968), it was held that the statute "contemplates not acts directed at an individual, but rather situations such as throwing fireworks into a crowd or loosening noxious materials within a confined area such as a theater."

In People v. Broadbent, 20 Misc.2d 547, 192 N.Y.S.2d 889 (1959), defendant's conviction for blowing of his automobile horn for no traffic-related reason was reversed. The court held:

" * * * Private annoyances, however exasperating or reprehensible, are insufficient in law to constitute a violation of the disorderly conduct section where no breach of the peace has resulted."

In People v. Coleman, 47 Misc.2d 355, 262 N.Y.S.2d 508 (1965), an officer observed defendant "revving up" his automobile engine with the brakes on until the traffic light changed and then "peeling out," causing his tires to squeal and leaving rubber marks on the street. As in Broadbent, the complainant only averred that defendant's act was annoying to himself. Nothing was offered to show it offended a substantial portion of the community. The conviction was reversed for that reason and for failure to prove intent.

The New York cases narrow the meaning of the statute to this extent: A defendant's act, no matter how reprehensible to any particular person, must disrupt a group of persons or a portion of the community at large and we accept that construction. The question remains whether this construction is sufficiently definite to save the statute from its asserted vagueness. In State v. Sanderson, 33 Or.App. 173, 575 P.2d 1025 (1978), we articulated the test for vagueness as follows:

"To survive constitutional scrutiny, a statute must * * * establish a basis for the trial judge's decision of whether to submit a case to the jury and * * * provide a framework within which the jury can determine guilt or innocence. A statute which does not provide such a standard for judicial application is void because it invests the judge and jury with uncontrolled discretion to impose the criminal sanction.

" * * * (A) statute which defines criminal conduct is void for vagueness if language describing elements of the offense is so elastic that men of common intelligence must necessarily guess at its meaning (and) it does not adequately notify potential defendants of its scope and reach * * *." (Citations omitted.)

In Sanderson the phrase "alarms or seriously annoys" used in describing acts constituting harassment, was said to be overly general and subjective, and thus a subsection of the harassment statute was held to be void for vagueness. In ORS 166.025(1)(h), however, "hazardous or physically offensive" suffers no such fault. The inclusion of the adjective "physically" excludes trivial annoyances. The word "hazardous" has an accepted meaning involving risk or danger and judicial application impliedly intended by the legislature to apply requires that the hazard impinge upon a substantial portion of the community. Thus we hold that the statute is sufficiently certain to allow judicial application and to give notice of what is prohibited. ² The demurrer should have been overruled.

Reversed and remanded for trial.

BUTTLER, Judge, dissenting.

I would affirm the trial court's sustaining of defendant's demurrer to the complaint on the ground that the underlying statute is unconstitutionally vague. Accordingly, I dissent.

Even if we add to the statute the language which the majority derives from the New York cases, "narrowing" the meaning of the statute, the vagueness remains. Presumably, ORS 166.025(1)(h) would then read:

"(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, he:

" * * *

"(h) Created a hazardous or physically offensive condition by any act which he is not licensed or privileged to do, (Thereby disrupting a group of persons or a substantial portion of the community.)" (Emphasis supplied.)

I accept the majority's test, as stated in State v. Sanderson, 33 Or.App. 173, 575 P.2d 1025 (1978), and can see no distinction between the statute held void for...