State v. Hirschman, A153610
| Decision Date | 07 July 2016 |
| Docket Number | A153610 |
| Citation | 279 Or.App. 338,379 P.3d 616 |
| Parties | State of Oregon, Plaintiff–Respondent, v. Aaron Hirschman, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Erik M. Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael A. Casper, Deputy Solicitor General, argued the cause for appellant. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General.
Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.
, C.J.
Acting as a self-described “Internet troll,” defendant posted an advertisement on Craigslist, stating that he would give $20 to a person who would bring the person's official ballot to defendant, let defendant complete it, then sign the person's own name and submit the ballot to an elections volunteer. It is undisputed that defendant did not intend to actually vote using another person's ballot. To the contrary, the state acknowledged that defendant's motives were “political shenanigans * * * on the Internet” and “entertainment.” Nonetheless, the state charged defendant with knowingly violating ORS 260.715(9)
, which prohibits making an “offer to purchase, for money or other valuable consideration, any official ballot.” The trial court convicted defendant after rejecting his arguments that ORS 260.715(9) unconstitutionally abridges expression and that his actions had not violated the statute.
On appeal, the parties dispute the meaning of certain terms used in ORS 260.715(9)
. They also disagree about whether the statute, as properly construed, violates various constitutional provisions, including Article I, section 8, of the Oregon Constitution. We conclude, as explained below, that defendant's actions violated ORS 260.715(9). That is, by making the Craigslist posting, defendant did “offer to purchase” a ballot, because his words communicated that he was proposing to acquire another person's ballot in exchange for money. However, we also conclude that the statutory prohibition on making an “offer to purchase” a ballot is facially unconstitutional because, by its terms, it criminalizes expression and is not wholly contained within a well-established historical exception to the protections of Article I, section 8. Accordingly, the trial court should have granted defendant's demurrer. Because it did not, we reverse and remand.
(Boldface in original.) Craigslist deleted the post within half an hour. Although the posting included a link allowing people to reply to defendant's message, he did not get any responses during the brief time the message was posted.
A Bend police officer investigated defendant's posting. He went to the ballot drop off site but did not see any suspicious activity. The Oregon Secretary of State's office then opened an investigation and referred the matter to Oregon Department of Justice Special Agent Todd Gray. Gray traced the posting to defendant. During defendant's subsequent interview with Gray and another agent, he was “compliant and cooperative.” Gray testified that defendant seemed “shocked that what he had done had risen to the level to have two special agents from the Attorney General's Office interviewing him.”
During the interview, defendant acknowledged that he had created the Craigslist posting. Defendant maintained, however, that he had not purchased or attempted to purchase official ballots. Instead, he contended that he “was basically making a mockery of the system, and more so than anything, playing around, goofing around on the Internet.” Further, defendant stated, “There's a lot of vulgarity there, and then people's political opinions, and I felt like I needed to chime in.”
PROCEDURAL HISTORY
The state charged defendant by district attorney's information with knowingly offering to purchase official ballots in violation of ORS 260.715(9)
.2 Defendant demurred
to the information before trial, contending that ORS 260.715(9)
facially violates the free speech protections of the state and federal constitutions. In arguing that ORS 260.715(9) violates Article I, section 8, of the Oregon Constitution, defendant asserted, among other things, that the statute directly regulates speech and is not wholly contained within a well-established historical exception to section 8's protections.
The trial court denied defendant's demurrer. Specifically, the court concluded, in part, “that ORS 260.715(9)
is directed at harmful effects. * * * The statute is not directed at the content of speech; the statute prohibits conduct, specifically a type of commerce rather than speech itself.” Additionally, the court concluded that the statute is not overbroad or unconstitutionally vague. In so deciding, the court accepted the state's definition of “offer” as being “a proposal to enter into a bargain wherein a ballot is exchanged for consideration,” regardless of whether the person making the offer subjectively intended to complete the transaction.3
During a discussion of proposed jury instructions, the parties again debated the meaning of the word “offer.” In that context, the trial court rejected defendant's argument that a communication qualifies as an “offer” only if the offeror “actually intend[s] to enter into the contract.” To the contrary, the court reasoned that “offer” means “a proposal communicated by either words, conduct, or both that would reasonably lead the party to whom it is made to believe that the proposal is intended to create a contract, if accepted,” without regard to the offeror's subjective intent.
During the subsequent bench trial, the state stipulated that defendant's “motive” was “political shenanigans” and to be an “internet troll,” “meaning a person who takes contrarian positions online in an effort to agitate others.” The state also stipulated that there was no evidence that defendant actually tried to purchase an official ballot. Moreover, the state recognized that “people do post crazy political satirical things to the Internet, and they do so on the same page in which [defendant] posted this advertisement.” Defendant testified at trial that he did not believe that a reasonable person would understand his post as making a serious offer to purchase a ballot. He also stated that, in hindsight, he wished his post had specified that it was satirical, but hedged: “obviously it's not a good joke if you put that at the end, because then you don't get the response.”
After the state rested, defendant moved for judgment of acquittal, contending, in part, that he “did not offer to purchase an official ballot for money.” (Emphasis in original.) In essence, defendant contended that he had not offered to “purchase” a ballot, but had offered money only for the privilege of completing the ballot. Additionally, defendant argued that he had not knowingly or intentionally made an “offer,” because no reasonable person would believe that his post manifested an actual intent to purchase a ballot and because a person does not “offer” to purchase a ballot, as that term is used in ORS 260.715(9)
, unless the person intends to complete the transaction. The court denied defendant's motion. Defendant raised similar points, again unsuccessfully, during his closing argument. The court again rejected those arguments, found defendant guilty, and sentenced him to 12 months of bench probation.
Defendant appeals, renewing his challenges to the trial court's interpretation of “purchase” and “offer” and, alternatively, his challenges to the constitutionality of ORS 260.715(9)
. Specifically, defendant asserts that the trial court erred in three respects: (1) in disallowing defendant's demurrer, which challenged the facial constitutionality of ORS 260.715(9) ; (2) in permitting “the state to elect a theory of ORS 260.715(9) that interpreted ‘offer’ to have the same definition as the Uniform Civil Jury Instructions”; and (3) in
denying defendant's motion for judgment of acquittal, particularly referencing the court's interpretation of “purchase” and “offer.” We begin our analysis by considering the statutory-interpretation issues raised in defendant's challenge to the denial of his motion for judgment of acquittal. See State v. Rodriguez–Moreno , 273 Or.App. 627, 633 n. 6, 359 P.3d 532 (2015)
, rev. den. , 358 Or. 611, 369 P.3d 386 (2016) (). We then address defendant's contention that the trial court should have granted his demurrer.
To continue reading
Request your trial
-
Mkt. Transp., Ltd. v. Emp't Dep't
... ... That is because we conclude that, although the agreement does not state separate consideration for the use of the vehicle, read in its entirety, the agreement provides ... ...
-
State v. Bledsoe
...the meaning of a statute, however, the issue is one of statutory construction, which we review for legal error. State v. Hirschman , 279 Or. App. 338, 344, 379 P.3d 616 (2016). On appeal, defendant renews her argument that her behavior of continuously walking before, during, and after the o......
-
State v. Gardiner
... ... independent from his filming ... We ... review a trial court's denial of a demurrer for legal ... error. State v. Hirschman, 279 Or.App. 338, 344, 379 ... P.3d 616 (2016). The analytical framework for assessing ... Article 1, section 8, constitutional challenges includes ... ...