State v. Keller, DA143278

• Decision Date: 14 May 1979
• Docket Number: No. DA143278,DA143278
• Parties: STATE of Oregon, Appellant, v. Frank D. KELLER, Respondent. ; CA 12239.
• Court: Oregon Court of Appeals

Page 1250

594 P.2d 1250

40 Or.App. 143

STATE of Oregon, Appellant, v. Frank D. KELLER, Respondent.

No. DA143278; CA 12239.

Court of Appeals of Oregon, In Banc.

Argued and Submitted March 1, 1979.

Resubmitted In Banc May 8, 1979.

Decided May 14, 1979.

Allison E. Smith, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Linda Hughes, Certified Law Student, Portland, argued the cause for respondent. With her on the brief was Janet L. Hoffman, Supervising Atty., Metropolitan Public Defender, Portland.

SCHWAB, Chief Judge.

Defendant was charged with the crime of harassment by a complaint that alleged he subjected the victim "to offensive physical contact, to-wit: by causing spittle to land on the person of said (victim)." The parties treat "causing spittle to land" as a convoluted way of saying defendant spit on the victim. Defendant demurred on the ground that spitting on another is not, as a matter of law, offensive physical contact and thus not prohibited by the harassment statute. The trial court granted the demurrer. The state appeals. We reverse.

ORS 166.065(1)(a) provides: "A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he * * * (s)ubjects another to offensive physical contact." We held in State v. Sallinger, 11 Or.App. 592, 598, 504 P.2d 1383, 1386 (1972): " * * * by 'offensive physical contact' the legislature meant striking, slapping, shoving, kicking, grabbing, and similar acts that are an interference with the 'contactee' * * *." To here make explicit what was at least implicit in Sallinger, we hold: (1) our statement of illustrations striking, slapping, etc was not intended to be a comprehensive enumeration of the acts prohibited by the statute; (2) rather, our illustrations were designed to point out that ORS 166.065(1)(a) was intended to prohibit all forms of contact that are comparable with, the equivalent of or substantially similar to, striking, slapping, etc. in respect to interference with the integrity of the victim; (3) striking, slapping, etc. and comparable acts are not, as a matter of law, "offense physical contact" within the meaning of ORS 166.065(1)(a) instead, it remains a question for the factfinder in each individual case whether under the specific circumstances pleaded and proved the defendant subjected another to offensive physical contact; and (4) in making that assessment the factfinder must apply an objective standard what would a reasonable person regard as offensive contact in the circumstances, not what was the victim's subjective reaction.

Applying that understanding here, we conclude that spitting on another can be an interference with the physical integrity of the victim that is comparable to striking, slapping, etc. It follows that the trial court erred in concluding, as a matter of law, that spitting on another cannot be offensive physical contact within the meaning of ORS 166.065(1)(a).

Defendant presents two arguments for a contrary conclusion. He first invokes Judge Foley's specially concurring opinion in Sallinger which contended that the majority interpretation of ORS 166.065(1)(a) left as noncriminal "fondling of a female's breasts" or spitting "into a stranger's face." 11 Or.App. at 599-600, 504 P.2d 1383. Specially concurring and dissenting opinions often contain hyperbole and thus can be of doubtful, or even dangerous, utility in interpreting a majority opinion. For example, Judge Foley's suggestion that the Sallinger majority legalized nonconsensual breast fondling overlooked the separate crime of sexual abuse, ORS 163.415-163.425. That separate crime can be and had been committed in several cases involving nonconsensual touching of a woman's breasts. See State v. Turner, 33 Or.App. 157, 575 P.2d 1007, Rev. den. 282 Or. 537 (1978); State v. Pagel, 16 Or.App. 412, 518 P.2d 1037, Rev. den., cert. den. 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974).

Likewise, Judge Foley's individual belief that the Sallinger majority ruled that spitting on another cannot be "offensive physical contact" within the meaning of ORS 166.065(1)(a) simply is not precedent for that conclusion. On the contrary, we think the opposite conclusion is fully consistent with the Sallinger majority opinion, as elaborated above.

Defendant's second contention is stated as follows:

"Although spitting is undoubtedly offensive physical Conduct, it is currently not punishable as offensive 'physical Contact ' under the statutory scheme." (Emphasis supplied.)

If we understand this correctly, defendant would limit the meaning of "contact" in ORS 166.065(1)(a) to situations in which the flesh of the defendant literally touched the flesh of the victim. Defendant would thus exclude from the range of prohibited "contact" such acts as hitting another with a thrown missile, poking another with a stick or carried to a logical extreme striking the clothing rather than the flesh of the victim. We reject the suggested limitation of the meaning of "contact" as untenable.

The difficulty in interpreting and applying the harassment statute is further documented by the specially concurring opinion filed today by Judge Buttler. He would interpret the expression "offensive contact" to mean "nonconsensual contact." But by prohibiting only "offensive contact," the legislature necessarily implied that there is such a thing as "inoffensive contact" which is not prohibited. As just one possible example, the legislature may have thought that the act of one person, with the requisite intent, bumping into another in a crowd was simply too inconsequential to warrant any possibility of a criminal sanction. But whatever the intended dividing line between offensive and inoffensive contact, we are not aware of any definitions that would make it synonymous with the dividing line between consensual and nonconsensual contact. As we said years ago in Sallinger, 11 Or.App. at 598, 504 P.2d 1383, we continue to find the history of ORS 166.065(1)(a) too inconclusive to hold that the legislature said "offensive contact" when it really meant "nonconsensual contact."

In conclusion, the trial court's determination that spitting on another cannot, as a matter of law, be offensive physical contact within the meaning of ORS 166.065(1)(a) was an erroneous interpretation of the statute.

Reversed and remanded for trial.

BUTTLER and JOSEPH, JJ., specially concurred with opinions.

BUTTLER, Judge, specially concurring.

Defendant was charged with the crime of harassment, ORS 166.065(1)(a), ¹ in that he subjected another to offensive physical contact by spitting in his face. The defendant's demurrer was sustained by the district court upon its finding that, under State v. Sallinger, 11 Or.App. 592, 504 P.2d 1383 (1972), spitting in another's face was not the type of physical contact covered by the statute.

In State v. Sallinger, we held that ORS 166.065(1)(a) is not unconstitutionally vague. In doing so, we pointed out that this subsection of ORS 166.065 was derived from New York Penal Law § 240.25(1) (McKinney 1967), Proposed Oregon Criminal Code 218, Commentary, § 223 (1970), and that the legislature, when it borrows a statute, is presumed to adopt the interpretation of the statute reached by the New York courts, absent some indication to the contrary. State v. Sallinger, supra at 597, 504 P.2d 1383; Cf. State v. Clark, 39 Or.App. 63, 591 P.2d 752 (1979). The cited New York statute provides that one commits the crime of harassment if:

"He strikes, shoves, kicks, or otherwise subjects (another) to physical contact * * *."

We concluded in Sallinger that the statute must have intended to cover physical contacts resulting in something less than impairment of physical condition or substantial pain, and while the lower limits of "offensive physical contact" were less clear, the legislature meant to include "striking, slapping, shoving, kicking, grabbing, and similar acts that are an interference with the 'contactee,' regardless of whether they produce any pain or discomfort." 11 Or.App. at 598, 504 P.2d at 1386.

We did not, in Sallinger, go on to consider how the New York courts have interpreted "physical contact," as that term is used in the New York statute. Their interpretation of the phrase includes all petty batteries, no matter how technical or inconsequential. People v. Hare, 66 Misc.2d 207, 319 N.Y.S.2d 890 (1971); People v. Smolen, 69 Misc.2d 920, 331 N.Y.S.2d 98 (1972); New York Penal Law 159, Practice Commentary, § 240.25 (McKinney 1967). The Criminal Law Revision Commission's Commentary to the Proposed Oregon Criminal Code adopts the same interpretation:

"Paragraph (a) is designed to prohibit conduct presently constituting 'simple assault.' The assault sections in Article 11 require a physical injury. Petty batteries not producing injury will not constitute criminal assault under (the assault statutes). If petty battery is committed with the intent to 'harass, annoy or alarm' it will be subject to prosecution as harassment." Proposed Criminal Code 218, Commentary, § 223 (1970).

A majority of the court now abandons the New York "adoption" articulated in Sallinger and recently restated in Clark, and goes off on an Ad hoc application of an otherwise overly vague statute. State v. Sanderson, 33 Or.App. 173, 575 P.2d 1025 (1978). Unless we can find an anchor to tie "offensive physical contact" to, its application will continue to be elusive, as Judge Joseph in his separate opinion seems to sense. The trial court reasonably interpreted Sallinger it appears to require direct physical contact: "striking, slapping, shoving, kicking, grabbing and similar acts." This court is unanimous in agreeing that the trial court erred, but we cannot agree on the reason. Perhaps that circumstance, in itself, should tell us something is wrong.

I would accept the New York court's...