State v. Hagen, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtWREN; SCHROEDER, P.J., and JACOBSON
Citation27 Ariz.App. 722,558 P.2d 750
Docket NumberNo. 1,CA-CR
Decision Date26 November 1976
PartiesSTATE of Arizona, Appellee, v. Dennis LeRoy HAGEN, Appellant. 1611.

Page 750

558 P.2d 750
27 Ariz.App. 722
STATE of Arizona, Appellee,
v.
Dennis LeRoy HAGEN, Appellant.
No. 1 CA-CR 1611.
Court of Appeals of Arizona, Division 1, Department B.
Nov. 26, 1976.
Rehearing Denied Dec. 9, 1976.
Petition for Review Denied Jan. 4, 1977.

[27 Ariz.App. 724]

Page 752

Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Phoenix, for appellee.

George M. Sterling, Jr., Phoenix, for appellant.

OPINION

WREN, Judge.

Appellant was convicted by a jury of illegally using a telephone in violation of A.R.S. § 13--895A, and placed on probation for one year. He contends on appeal that:

1. A.R.S. § 13--895A is unconstitutionally vague and overbroad;

2. The court erred in denying his motion for a Bill of Particulars;

3. The court erred in denying his motion in limine;

4. The motion for mistrial should have been granted because of (a) evidence of prior bad acts, and (b) misconduct by the prosecutor in his closing argument;

5. There was a denial of his constitutional right to self-representation and to call witnesses.

CONSTITUTIONALITY OF A.R.S. § 13--895A

A.R.S. § 13--895A provides:

'A. 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. It shall also be unlawful to attempt to extort money or other thing of value from any person, or to otherwise disturb by repeated anonymous telephone calls the peace, quiet or right of privacy of any person at the place where the telephone call or calls were received.'

The facts disclose that on or about the 19th day of March, 1975, appellant telephoned a Phoenix police officer and used obscene, lewd and profane language. Specifically he expressed a desire to engage in an act of sodomy with the Phoenix Chief of Police.

Appellant's assertion that the statute is unconstitutionally void for vagueness was disposed of by this court in Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972), wherein the same contention was turned aside. One whose conduct is clearly proscribed by the terms of a statute may not successfully challenge it for vagueness. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975). Here the crime and the elements comprising it are expressly set forth, and a reasonable person would not be left to speculate as to the type of activity prohibited. Cf. State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964). Appellant was given fair warning that the conduct he [27 Ariz.App. 725]

Page 753

had engaged in fell within the purview of the statute.

Appellant also claims overbroadness because the wording of A.R.S. § 13--895A is equally applicable to constitutionally protected speech. Again we disagree.

The state has a legitimate interest in prohibiting obscene, threatening, or harassing phone calls, none of which are generally thought of as protected by the First Amendment. Walker v. Dillard, supra; Cf. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

Baker held the statute to prohibit:

'(T)he intrusion into the home by means of telecommunications of those individuals who intend to terrify, harass, annoy and abuse the listener by means of the language proscribed by the statute.

A resort to epithets of personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal acts raises no constitutional question.' supra 16 Ariz.App. at 466, 494 P.2d at 71.

By 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. The Arizona Supreme Court's observations on the constitutionality of A.R.S. § 13--371, (Disturbing the Peace) in State v. Starsky, 106 Ariz. 329, 475 P.2d 943 (1970), are equally applicable to A.R.S. § 13--895. Starsky noted that such activities were not 'an exercise of rights but rather (were) an abuse of rights and (entailed) a gross lack of understanding--or calloused indifference--to the simple fact that the offended parties also (had) certain rights under the same Constitution.' supra at 332, 475 P.2d at 946.

We cannot conceive that the State is abridging anyone's First Amendment freedom by prohibiting telephone calls that are 'obscene, lewd or profane' or that threaten physical harm, provided such calls are made with the intent specified in the statute.

BILL OF PARTICULARS

The information charges the appellant with '. . . intent to terrify, intimidate, threaten, harass, annoy or offend did telephone Jerry Kimmell and used obscene, lewd or profane language or suggested a lewd or lascivious act . . ..'

Appellant argues that he needed more...

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29 practice notes
  • State v. Kipf, No. 88-974
    • United States
    • Supreme Court of Nebraska
    • January 19, 1990
    ...Other courts have found similar statutes which include a specific intent element not to be overbroad. For example, in State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750 (1976), the court upheld a statute which makes it unlawful for any person to telephone another and use any obscene, lewd, or p......
  • State v. Thorne, No. 16465
    • United States
    • Supreme Court of West Virginia
    • August 7, 1985
    ...whereby the prohibition against harassing calls did not apply to calls for which there was a legitimate purpose. In State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750 (1976), and State v. Crelly, 313 N.W.2d 455 (S.D.1981), the courts upheld statutes forbidding the use of obscene language on the......
  • State v. Snodgrass, No. 1
    • United States
    • Court of Appeals of Arizona
    • September 7, 1977
    ...113 Ariz. 284, 551 P.2d 553 (1976) (denial of suppression motion nonjurisdictional following guilty plea); see also, State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750 (1976) (denial of bill of particulars motion discretionary). The information is not fatally defective as duplicitous solely bec......
  • State v. Alexander, Nos. 31925-6-
    • United States
    • Court of Appeals of Washington
    • February 6, 1995
    ...obscene or offensive language or suggesting any lewd or lascivious act in the course of a telephone conversation' "); State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750, 753 (1976) (upholding statute making it unlawful to telephone another with "intent to terrify, intimidate, threaten, harass, ......
  • Request a trial to view additional results
29 cases
  • State v. Kipf, No. 88-974
    • United States
    • Supreme Court of Nebraska
    • January 19, 1990
    ...Other courts have found similar statutes which include a specific intent element not to be overbroad. For example, in State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750 (1976), the court upheld a statute which makes it unlawful for any person to telephone another and use any obscene, lewd, or p......
  • State v. Thorne, No. 16465
    • United States
    • Supreme Court of West Virginia
    • August 7, 1985
    ...whereby the prohibition against harassing calls did not apply to calls for which there was a legitimate purpose. In State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750 (1976), and State v. Crelly, 313 N.W.2d 455 (S.D.1981), the courts upheld statutes forbidding the use of obscene language on the......
  • State v. Snodgrass, No. 1
    • United States
    • Court of Appeals of Arizona
    • September 7, 1977
    ...113 Ariz. 284, 551 P.2d 553 (1976) (denial of suppression motion nonjurisdictional following guilty plea); see also, State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750 (1976) (denial of bill of particulars motion discretionary). The information is not fatally defective as duplicitous solely bec......
  • State v. Alexander, Nos. 31925-6-
    • United States
    • Court of Appeals of Washington
    • February 6, 1995
    ...obscene or offensive language or suggesting any lewd or lascivious act in the course of a telephone conversation' "); State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750, 753 (1976) (upholding statute making it unlawful to telephone another with "intent to terrify, intimidate, threaten, harass, ......
  • Request a trial to view additional results

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