State v. Larsen, 8604
Decision Date | 27 September 1978 |
Docket Number | No. 8604,8604 |
Citation | 588 P.2d 41,37 Or.App. 425 |
Parties | STATE of Oregon, Appellant, v. David Joe LARSEN, Respondent. ; CA 11646. . Submitted on Record and Appellant's Brief |
Court | Oregon Court of Appeals |
Thomas H. Denney, Asst. Atty. Gen., Salem, filed the brief for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Richard J. Smith, Klamath Falls, waived appearance for respondent.
Before SCHWAB, Chief Judge, and THORNTON, TANZER and BUTTLER, Judges.
The circuit court sustained defendant's demurrer to a criminal complaint charging him with the crime of harassment, and the state appeals. The only issue is whether the applicable subsection of the harassment statute is unconstitutionally vague.
ORS 166.065 specifies four means of committing the crime of harassment:
Pursuant to subsection (c), defendant was charged by information with making an obscene phone call. 1 He contends that the statute is void for vagueness.
We have previously rejected defendant's contention in a decision sustaining the constitutionality of the same subsection as applied to a defendant who made anonymous early morning telephone calls threatening the life of the recipient. State v. Zeit, 22 Or.App. 480, 539 P.2d 1130 Rev. den. (1975). However, in State v. Sanderson, 33 Or.App. 173, 575 P.2d 1025 (1978), we held that subsection (d) of the harassment statute violated due process because it was too vague to provide standards capable of consistent judicial application. In this case, the circuit court reasoned that subsections (c) and (d) of ORS 166.065(1) were so similar that Zeit could no longer be considered valid law in light of the reasoning in Sanderson. While we understand the circuit court's difficulty in distinguishing Sanderson from Zeit, we conclude that the subsection at issue in this case is more limited in scope.
In Sanderson, 33 Or.App. at 176, 575 P.2d at 1027, we explained the basic principles of the vagueness doctrine
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More recently, in State v. Williams, 37 Or.App. 419, 420, 587 P.2d 1049, 1050 (decided this date), we commented on the difficulties of applying the vagueness doctrine:
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In Sanderson, we found that the phrase "alarms or seriously annoys" was so general and subjective that it provided no basis for distinguishing criminal from non-criminal conduct and that the subsection was not susceptible to a limiting construction because the legislative history indicated an...
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...281 (1968); Von Lusch v. State, 39 Md.App. 517, 387 A.2d 306 (1978); State v. Jaeger, 249 N.W.2d 688 (Iowa, 1977); State v. Larsen, 37 Or.App. 425, 588 P.2d 41 (1978); People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979), and Constantino v. State, 243 Ga. 595, 255 S.E.2d 710 In conclusion, Mi......
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...On the state's appeal, the Court of Appeals reversed, 38 Or.App. 90, 588 P.2d 1132 (1979), citing its prior holding in State v. Larsen, 37 Or.App. 425, 588 P.2d 41 (1978), in which it had undertaken to save the validity of the statute by giving it a limiting construction. We allowed review ......
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...and done " 'in a manner likely to cause annoyance or harm,' " (thus mixing up the questions of intent and action). In State v. Larsen, 37 Or.App. 425, 588 P.2d 41 (1978), we rescued subparagraph (c) once more by reading the words "to convey sexually offensive or threatening messages" into t......
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...that rule more recently in Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974). In State v. Larsen, 37 Or.App. 425, 588 P.2d 41 (1978), the state appealed an order sustaining a demurrer to an indictment charging the defendant with telephone harassment. The defendan......