State v. Maxwell

• Decision Date: 09 February 2000
• Citation: 165 Or App 467,998 P.2d 680
• Parties: (Or.App. 2000) STATE OF OREGON, RESPONDENT, v. BILLY DELMONT MAXWELL, APPELLANT CA A100606 (Control, A100607) (Cases Consolidated) 97CR0127ST, 97CR0139ST
• Court: Oregon Court of Appeals

Page 680

998 P.2d 680 (Or.App. 2000)

STATE OF OREGON, RESPONDENT, v. BILLY DELMONT MAXWELL, APPELLANT

CA A100606 (Control, A100607) (Cases Consolidated)

97CR0127ST, 97CR0139ST

Oregon Court of Appeals

Argued and Submitted Nov. 29, 1999.

February 9, 2000

[Copyrighted Material Omitted] Andy Simrin, Deputy Public Defender, argued the cause for appellant. With him on the briefs was David E. Groom, Public Defender.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Landau, Presiding Judge, and Linder and Brewer, Judges.

Brewer, J.

Defendant appeals from his convictions following a jury trial on two felony counts of violating a stalking protective order, ORS 163.750,¹ and one felony count of stalking, ORS 163.732.² Defendant assigns seven errors to various trial court rulings, but only five assignments of error merit discussion. For the reasons that follow, we affirm. ORS 138.240.

Because the jury found defendant guilty, we view the evidence in the light most favorable to the state. State v. Rose, 311 Or 274, 276, 810 P2d 839 (1991). In late 1995, defendant met Lydia Bryan while she was working at a store. Beginning in early 1996, defendant frequently appeared at the store and asked Lydia to go out with him. Lydia always rebuffed his advances, but defendant persisted in asking her for dates. Defendant told Lydia that "God had told him that [she] was going to marry him." Defendant became increasingly "impatient" and "agitated" and screamed at Lydia because she refused to go out with him. Lydia was alarmed and frightened by defendant's conduct. In early July, defendant was arrested and charged with the crime of stalking Lydia. Defendant pled guilty and was later convicted of that offense. However, the unwanted contact did not end with defendant's arrest.

In August, Lydia went to work for her father, Jack Bryan, at his tool sale and repair business. Shortly thereafter, defendant began visiting Lydia at that business as well. In late September, defendant appeared at Jack's business, refused to leave when Lydia asked him to, called her obscene names and told her that she "was going to get it." The next day, Lydia went to the police and filed a stalking complaint. After a hearing, the trial court issued a stalking protective order on October 7 that prohibited defendant from "knowingly * * * having contact" with Lydia. The order defined "contact" to include the conduct listed in ORS 163.730(3)(b) to (i) and (k).³ See ORS 163.738(2)(b). At Lydia's request, the trial court amended the stalking protective order the same day to prohibit defendant from "coming into the visual or physical presence of [Lydia]." See ORS 163.730(3)(a) ("contact" means "[c]oming into the visual or physical presence of the other person."). The amended order also provided that contact meant "coming within or driving around the perimeter of the area bounded by [the four roads around Jack's business]."

Lydia and Jack were members of a church at which Jack occasionally preached. In October, defendant asked the regular pastor if Lydia attended the church and the pastor told him that she did. On February 9, 1997, during a service in which Jack preached and Lydia attended, defendant entered the church and sat down in the next to last row of the sanctuary. Jack saw defendant enter and was alarmed because defendant's previous conduct had been "unpredictable." The pastor also saw defendant enter the church and sit down. Neither he nor Jack had ever seen defendant attend services before that date. Lydia was seated near the front of the sanctuary and did not know that defendant was in the building until Jack informed her after the service. Defendant stayed for about 10 minutes and then left. After the service, the pastor found a handwritten note on the church bulletin board. The note stated, among other things, that "[t]he resurected [sic] Christ was Here! 2-9-97." It also asked: "Are there any Real Believers here? How about you Jack Bryan?" The pastor showed the note to Jack.

On February 13, defendant appeared at Jack's business, while Jack was working alone. Defendant's appearance alarmed Jack. Defendant motioned for Jack to come outside. Jack did not want to go outside and motioned for defendant to come to the door. Jack wanted to encourage defendant to seek psychological help. As defendant approached, Jack grabbed a machete to protect himself. When defendant reached the door, Jack told him not to come any closer. Defendant then told Jack that he was "the risen Jesus Christ, the Messiah" and that he had come "to offer [Jack] salvation for [his] sins." Defendant's statements further frightened Jack.

Jack reported defendant's conduct to the police. Defendant was arrested and charged in two separate indictments with four offenses arising from the February 9 and February 13 incidents.⁴ Defendant was charged in the first indictment with violating the stalking protective order by "knowingly engag[ing] in conduct prohibited by the order by coming into the visual and/or physical presence of [Lydia]" when he entered the church on February 9. Defendant was charged with and ultimately convicted under the second indictment for two offenses arising from his contact with Jack on February 13. First, defendant was charged with violating the amended stalking protective order by "knowingly engag[ing] in conduct prohibited by the order by contacting Jack at [his place of business]," a location within the bounded area that defendant was restrained from entering. Second, the indictment charged defendant with the crime of stalking, which it alleged that defendant committed by "knowingly [alarming Jack], a member of the immediate family of the victim [Lydia], by engaging in repeated and unwanted contact with [Jack]." Because of his prior conviction for stalking Lydia, each of the three counts was charged as a Class C felony and not as a misdemeanor. See ORS 163.732(2) and ORS 163.750(2). The charges were consolidated for trial. After a jury trial, defendant was convicted on all three counts. This appeal followed.

On appeal, defendant first challenges his conviction for violating the amended stalking protective order arising from the February 9 incident at the church. Defendant contends that the trial court erred by denying his motion for judgment of acquittal, in which he argued that the amended stalking protective order violated Article I, sections 20 and 21, of the Oregon Constitution because it incorporated the term "presence" from the statutory definition of "contact." ORS 163.730(3)(a). In essence, defendant argues that, as applied, the amended order is unconstitutionally vague in restraining him from coming within the "visual or physical presence" of Lydia.⁵

The state initially responds that defendant did not adequately preserve the claimed error because he did not raise it by pretrial demurrer, ORS 135.630, or by a motion to arrest judgment, ORS 136.500, following his conviction. We disagree. If a criminal statute is unconstitutionally vague, the facts alleged in an indictment under that statute do not constitute an offense. State v. McKenzie, 307 Or 554, 560, 771 P2d 264 (1989). A defendant may challenge a criminal statute for vagueness either by means of a pretrial demurrer or a motion in arrest of judgment. Id. See ORS 135.630(4). Should the trial court grant either motion, the state may appeal that ruling and the appellate courts determine, as a matter of law, the constitutionality of the challenged statute. ORS 138.060(1) and (2). In contrast, if a trial court grants a motion for judgment of acquittal, the state cannot appeal and future prosecution for that offense is barred. ORS 136.445.

In order to preserve the state's right to appeal from trial court rulings that declare a statute unconstitutionally vague, the Supreme Court concluded in McKenzie that trial courts should treat motions for judgment of acquittal as "premature motions in arrest of judgment." Id. at 561. The court held that "the motion should be denied, with leave to renew it after the verdict." Id. However, if the trial court considers the merits of the motion and rules against the defendant, the premature decision causes no harm because the defendant is able to appeal. In that event, a "viable issue is presented [to the appellate courts as to] whether [the] defendant has been convicted under an unconstitutionally vague statute." Id. Here, defendant raised the issue in a motion at the close of the evidence. The trial court considered the merits of the motion and ruled against defendant. Therefore, under the reasoning of McKenzie, the question of whether the term "presence" is unconstitutionally vague is a viable issue on appeal.

In order to satisfy the demands of the Oregon Constitution, "[t]he terms of a criminal statute must be sufficiently explicit to inform those who are subject to it of what conduct on their part will render them liable to its penalties." State v. Chakerian, 325 Or 370, 382, 938 P2d 756 (1997) (quoting State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985)). A criminal statute must (1) "provide notice, with a reasonable degree of certainty, of the conduct that is prohibited"; and (2) "prevent a judge, jury, or other law enforcer from 'exercis[ing] uncontrolled discretion in punishing defendants.'" Id.

Defendant asserts that the word "presence" has "no discernible parameters" and, thus, provided "no guidance" for him to determine whether or not his conduct might violate the order. Although defendant concedes that the term is not vague in all possible applications, he poses various hypothetical fact situations and asks whether those examples fall within the meaning of "visual presence" or "physical presence." However, defendant's abstract concern about how the statute might be applied to other circumstances is of no consequence to...