State v. Plowman

• Decision Date: 27 August 1992
• Parties: , 61 USLW 2149, 22 A.L.R.5th 835 STATE of Oregon, Respondent on Review, v. Darin Dale PLOWMAN, Petitioner on Review. CC C89-12-36912; CA A65145; SC S38328.
• Court: Oregon Supreme Court

Page 558

838 P.2d 558

314 Or. 157, 61 USLW 2149, 22 A.L.R.5th 835

STATE of Oregon, Respondent on Review, v. Darin Dale PLOWMAN, Petitioner on Review.

CC C89-12-36912; CA A65145; SC S38328.

Supreme Court of Oregon In Banc.

Argued and Submitted March 5, 1992.

Decided Aug. 27, 1992.

[314 Or. 158] J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Sally L. Avera, Public Defender, Salem.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response to the petition were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Rex Armstrong, of Bogle & Gates, Portland, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon, Inc.

GRABER, Justice.

INTRODUCTION

The issue in this case is the constitutional validity of ORS 166.165(1)(a)(A), the statute that creates and defines the crime of intimidation The trial court overruled the demurrer. Defendant pleaded not guilty. A jury convicted him. ² Defendant appealed his conviction for intimidation, contending that the trial court erred in overruling his demurrer. The Court of Appeals affirmed. State v. Plowman, 107 Or.App. 782, 813 P.2d 1114 (1991). We allowed review to address the important constitutional questions involved and now affirm.

                in the first degree. 1  Defendant and three codefendants were charged with violating ORS 166.165(1)(a)(A), which makes it a crime for two or more persons, acting together, to "[i]ntentionally, knowingly, or recklessly cause physical injury to another because of their perception of that person's race, color, religion, national origin or sexual orientation."   Defendant demurred on the grounds that the statute is vague and that it burdens his rights to speak and to express his opinions freely
                

The Court of Appeals stated the facts in State v. Hendrix, 107 Or.App. 734, 737-38, 813 P.2d 1115 (1990), which involved one of defendant's codefendants:

"The evidence showed that [Hendrix] and his three cohorts, [defendant], Neill and Schindler, drove to a Portland store at Southeast 136th and Powell Boulevard to buy beer. * * * [Defendant] and Neill went inside the store. [Hendrix] and Schindler walked behind the store to urinate.

"Serafin and Slumano, the victims, arrived at the store in Slumano's vehicle. Serafin wanted to make a telephone call. Schindler returned to the front of the store, approached Serafin and asked him if he had any cocaine. Serafin, who speaks only a little English, said he did not have anything and started to walk away. Schindler attacked him, beating him on the head and kicking him. Neill joined Schindler in the attack. [Defendant] and [Hendrix] began beating Slumano, who was sitting in his car. [Defendant] punched Serafin; Schindler kicked him. Serafin fell to the pavement. [Hendrix] pinned Serafin's back to the pavement and repeatedly slammed the store's metal-framed glass entry door against his head. [Hendrix] and his three associates took turns beating Serafin and Slumano, sometimes ganging up three against one. Serafin and Slumano were unarmed and did not fight back. * * *

"During the attack, which lasted about two minutes, eyewitnesses heard Neill shout at Serafin, 'Talk in English, motherfucker.' [Defendant] and Schindler screamed 'white power' or 'white pride' loud enough to be heard 50 feet away. [Defendant] yelled, 'Knock it off with us white boys.' When the store clerk told the assailants that she had called the police, [defendant] became even more agitated and screamed, 'They're just Mexicans' and 'They're just fucking wetbacks.' As [Hendrix] and the three cohorts sped away in their car, someone inside the car shouted 'white power.' "

CONSTITUTIONAL ISSUES

A. Vagueness Challenge under the Oregon Constitution

Defendant contends that ORS 166.165(1)(a)(A) violates Article I, sections 20 and 21, of the Oregon Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, because its terms are vague. We analyze his contention under the Oregon Constitution first. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (courts should decide questions of state law before reaching federal constitutional issues).

"The 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. Graves, 299 Or. 189, 195, 700 P.2d 244 (1985). A "reasonable degree of certainty" about what conduct falls within the statute's prohibition is required; absolute certainty is not. State v. Cornell/Pinnell, 304 Or. 27, 29-30, 741 P.2d 501 (1987). In addition to giving fair notice of prohibited conduct, a criminal statute must not be so vague as to allow a judge or jury unbridled discretion to decide what conduct to punish. Id. at 29, 741 P.2d 501. A law that gives such unbridled discretion to judges and juries offends the principle against ex post facto laws embodied in Article I, section 21, of the Oregon Constitution, ³ and the principle against standardless and unequal application of criminal laws embodied in Article I, section 20, of the Oregon Constitution. ⁴ State v. Graves, supra, 299 Or. at 195, 700 P.2d 244.

Defendant's challenge is directed to the phrase "because of their perception of [the victims'] race, color, religion, national origin or sexual orientation." ORS 166.165(1)(a)(A). He argues that that phrase is "inherently nebulous and imprecise." Consequently, he asserts, it invites standardless prosecution. He claims that prosecutors will be able to charge, and juries will be able to convict, under the statute whenever the race, color, religion, national origin, or sexual orientation of the assailants differs from that of the victim. We disagree.

The crime is defined in sufficiently clear and explicit terms to apprise defendant and others of what conduct is prohibited. ORS 166.165(1)(a)(A) prohibits two or more assailants, acting together, from causing physical injury to another because the assailants perceive the victim to belong to one of the specified groups. The challenged phrase means simply that the assailants' perception need not be accurate for them to have committed the crime of intimidation in the first degree. For example, if the assailants, acting together, intentionally cause physical injury to a victim because they perceive the victim to be Catholic, the assailants have committed the crime of intimidation in the first degree even if the victim is not in fact Catholic, but is instead Episcopalian.

Defendant's assertion that the statute invites prosecution whenever the race of the assailants and the victim happen to differ misses the point in at least two respects. First, even where race is the alleged motivating factor, the perpetrators and the victim do not have to be of different races. Second, the statute requires that the assailants inflict the physical injury "because of" their perception that the victim belongs to a specified group. The statute expressly and unambiguously requires the state to prove a causal connection between the infliction of injury and the assailants' perception of the group to which the victim belongs. See State v. Brown, 310 Or. 347, 353-54, 800 P.2d 259 (1990) (under ORS 163.095(2)(a), defining a form of aggravated murder, the state must prove a causal connection between the murder and the victim's status as a witness, juror, police officer, or other person with duties to the criminal justice system); State v. Maney, 297 Or. 620, 626, 688 P.2d 63 (1984) (same). The trier of fact must find all the essential elements of the crime beyond a reasonable doubt. State v. Williams, 313 Or. 19, 24, 828 P.2d 1006 (1992).

ORS 166.165(1)(a)(A) is not unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution.

B. Vagueness Under the United States Constitution

Defendant argues that the statute is vague under the Constitution of the United States for the same reasons that he advances under the Oregon Constitution. The Supreme Court of the United States has interpreted the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States to prohibit the states from enforcing vague criminal laws. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

A "void for vagueness" analysis under the federal constitution is much like the Oregon analysis. State v. Robertson, 293 Or. 402, 409, 649 P.2d 569 (1982). In order to withstand a vagueness challenge, a statute that defines a criminal offense must give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. United States v. Murphy, 809 F.2d 1427, 1431 (9th Cir.1987) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)). Moreover, the law must provide explicit standards so that those who enforce and apply the law do not do so in an arbitrary or discriminatory fashion. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503, 102 S.Ct. 1186, 1195-96, 71 L.Ed.2d 362 (1982). As our discussion under the Oregon Constitution reveals, ORS 166.165(1)(a)(A) does both and, accordingly, does not offend the Due Process Clause.

ORS 166.165(1)(a)(A) is not unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

C. Article I, Section 8, of the Oregon Constitution

Defendant next argues that ORS 166.165(1)(a)(A), on its face, violates Article I, section 8, of the Oregon Constitution. Article I, section 8 provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Defendant contends that ORS 166.165(1)(a)(A) both restrains the free expression...