State v. Garcias, s. A26238

• Decision Date: 03 April 1984
• Docket Number: A26283,A26284,A26285,A26286,Nos. A26238,A26387,s. A26238
• Citation: 296 Or. 688,679 P.2d 1354
• Parties: The STATE of Oregon, Respondent on Review, v. Juan Santos GARCIAS, and Harvey Chico Mullins, and Cassandra Diane Griffith, and Justin Kelly Comer, and Franklin Dimas Chavez; and Asencion Sandoval, and David Alan Fox, and Leon Vincent Graczyk; and Leon Vincent Graczyk, Leon Vincent Graczyk, Petitioners on Review. ; SC 29504, A27666, A27924, A27979; SC 29844, A27262, A27263; SC 29843.
• Court: Oregon Supreme Court

Page 1354

679 P.2d 1354

296 Or. 688

The STATE of Oregon, Respondent on Review, v. Juan Santos GARCIAS, and Harvey Chico Mullins, and Cassandra

Diane Griffith, and Justin Kelly Comer, and Franklin Dimas

Chavez; and Asencion Sandoval, and David Alan Fox, and Leon

Vincent Graczyk; and Leon Vincent Graczyk, Leon Vincent

Graczyk, Petitioners on Review.

Nos. A26238, A26286, A26387, A26285, A26283, A26284; SC

29504, A27666, A27924, A27979; SC 29844, A27262,

A27263; SC 29843.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Nov. 3, 1983.

Decided April 3, 1984.

Thomas L. Fagan, Staff Attorney, Public Defender Services of Lane County, Inc., Eugene, argued the cause for petitioners on review. With him on the briefs was Robert J. Larson, Director, Public Defender Services of Lane County, Inc., Eugene.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the briefs were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

ROBERTS, Justice.

In these consolidated cases, defendants challenge the constitutionality of the menacing statute, ORS 163.190(1), enacted in 1971. That statute provides:

"A person commits the crime of menacing if by word or conduct he intentionally attempts to place another person in fear of imminent serious physical injury."

We believe the statute can best be understood in relation to the development of criminal assault in this state.

Prior to 1971, the assault statutes had remained substantively the same since their enactment in 1843. Compare General Laws of Oregon §§ 531-537 (Deady & Lane 1874) with ORS 163.240-163.290 (1969). The statutes contained gradations of the crime of assault but no definition. The following statutory language was typical:

"Any person who assaults, or assaults and beats another with a cowhide, whip, stick or like thing, having at the time in his possession a pistol, dirk or other deadly weapon, with intent to intimidate and prevent such other person from resisting or defending himself, shall be punished upon conviction by imprisonment in the penitentiary for not more than 10 years." ORS 163.240 (1969); see also General Laws of Oregon § 531 (Deady & Lane 1874).

What conduct fell within the definition of assault was not always clear. At early common law, assault encompassed two separate concepts, the crime of attempted battery and the civil action for intentionally placing another in apprehension of an immediate battery. R. Perkins, Criminal Law 117 (2d ed 1969). Perkins indicates that the tort concept of assault, apprehension of an immediate battery, was early incorporated into the criminal assault statutes of the various states. Id. ¹ There appears to have been some early ambivalence in Oregon whether the criminal assault statutes included the tort based meaning, ² and a degree of confusion persisted in this regard at the time of the 1971 revision of the criminal code. ³ Nonetheless, the definition of criminal assault had solidified sufficiently so that, at the time of the criminal code revisions, it could be summarized as including both "an act which reasonably puts one in fear of corporal injury" and "an act intended to cause corporal injury by one who has the present ability to carry out such intent." Commentary to Proposed Oregon Criminal Code 95, § 94 (1970).

Among other amendments to the criminal code in 1971, the Oregon legislature defined the crime of assault. Assault now occurs when one intentionally, or with another specified mental state, causes some degree of physical injury to another. The gravity of the offense is gauged according to culpability, seriousness of injury inflicted or intended, and the means used to inflict injury. As thus defined, assault includes only acts performed with the intent to cause injury and does not encompass conduct intended to create apprehension, but not necessarily injury. The alternative meaning of assault was not abandoned, however. "[T]he tort law derived concept of 'intentional creation of the apprehension of receiving a battery' * * * will be retained under the proposed law as the newly designated offense of menacing." Id. at 94.

As already quoted above, the menacing statute, ORS 163.190(1), provides:

"A person commits the crime of menacing if by word or conduct he intentionally attempts to place another person in fear of imminent serious physical injury."

The legislature could have included the offense in the general assault provisions, as it appears in the Model Penal Code § 211.1(1)(c) from which the statute is, in part, derived. ⁴ It chose instead to create a separate offense similar to that found in the New York Penal Law § 120.15 (McKinney 1975). ⁵ These laws define menacing as intentionally placing or attempting to place another person in fear of imminent serious physical or bodily injury. In New York and as it appears in the Model Penal Code, the offense is committed "by physical menace." In Oregon, the offense is defined only in terms of attempt and may occur "by word or conduct." ⁶

The question in this case is whether the menacing statute on its face violates article I, section 8 of the Oregon Constitution as an outright prohibition on speech, or, if not, whether the communications within its intended reach are either too vaguely defined or such as could not be proscribed by the criminal law.

The district court judges who considered these cases dismissed the complaints finding the menacing statute unconstitutionally overbroad in reliance on State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), and not susceptible to a narrowing construction that would withstand a constitutional challenge. They also found it unconstitutionally vague. The Court of Appeals reversed. We affirm the Court of Appeals.

Article I, section 8 provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; * * *."

In State v. Robertson, supra, we stated that this provision

"forecloses the enactment of any law written in terms directed to the substance of any 'opinion' or any 'subject' of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." 293 Or. at 412, 649 P.2d 569.

In Robertson we also said that an offense can include the use of words, but "laws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end." 293 Or. at 416-17, 649 P.2d 569.

Before we address defendants' claims of overbreadth and vagueness we must consider first whether this law validly could be enacted at all in light of the constitution's prohibition against "law[s] * * * restricting the right to speak * * * freely on any subject whatever."

The menacing statute proscribes by its terms certain communications, those intended as attempts to place another person in fear of imminent serious physical injury. Causing apprehension by threats and gestures indicative of imminent violence was punishable in many states as criminal assault at the time our guarantees of freedom of expression were adopted. R. Perkins, Criminal Law 117 (2d ed 1969). Unlike other conventional crimes of the same era which were made out by use of words alone, such as perjury and solicitation, the crime of assault required more than verbal communication. People v. Lilley, 43 Mich. 521, 525, 5 N.W. 982 (1880), Perkins, Criminal Law at 132, citing Restatement of Torts § 31 comment a (1934). This was because the law was intended to prevent conduct likely to engender a breach of the peace. Perkins, Id. at 117. Words unaccompanied by some menacing act or gesture were considered insufficiently threatening of an imminent battery to provoke in the victim a defensive or retaliatory violent response. Perkins, Id. at 132. While words could lend to actions such a meaning as would make them amount to assault, they were in themselves insufficient to constitute the crime. In its conventional guise, assault did not prohibit speech alone but rather forbade the communication of threats accompanied by conduct which together caused in the hearer a realistic apprehension of immediate injury.

The menacing statute extends beyond the traditional limits of assault. Menacing may be committed in alternate ways, either by words or by conduct. The Commentary leaves no doubt that the crime extends to uttering words alone. It states, "[m]enacing is intended to cover not only menacing physical acts but also threatening words unaccompanied by a physical movement. The following conduct would be considered menacing: X stands with his right hand in his coat pocket and threatens to shoot Y." ⁷ Commentary to Proposed Oregon Criminal Code 96, § 95 (1970). The modern offense of menacing no longer falls within the confines of the conventional crime of assault from which it derives. It is no longer "wholly confined within [its] historical exception." State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569. The question remains whether the law is intended to limit communication itself, or whether its prohibition is directed against causing or attempting to cause some harm which may be brought about only incidentally by communication. State v. Robertson, supra, 293 Or. at 414-15, 649 P.2d 569.

The concern of the menacing statute appears to center on preventing harm to the victim in the form of tension, alarm and whatever injury may result from the confrontation. The state may forbid actually placing another in fear of imminent serious physical injury, unless such conduct is privileged. This is the type of statutory prohibition "directed in terms against the pursuit of a forbidden effect" which ...