State v. Smith
| Citation | 319 Or.App. 388,510 P.3d 217 |
| Decision Date | 27 April 2022 |
| Docket Number | A170791 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Scott Wayne SMITH, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and Joyce, Judge.
Defendant appeals from a judgment of conviction for second-degree intimidation. His conviction arises from an incident in which he used homophobic epithets against a group of people whom he believed to be gay, threatened to kill them, and threatened to blow up the apartment building in which the group lived. On appeal, he argues that the trial court erred in denying his demurrer, in which he asserted that the second-degree intimidation statute violates Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. We affirm.
The relevant facts are not in dispute. Defendant pleaded no contest to one count of second-degree intimidation. At the plea hearing, the trial court accepted the state's summary of the events leading up to the charge against defendant. Defendant moved into a house across the street from an apartment building. Some of the residents of that building have AIDS and the "vast majority" of the residents identify as members of the LGBTQ+ community. One of the residents told defendant that many of the residents identify as members of that community. Over the course of several months, residents overheard defendant using homophobic slurs. On the day of his arrest, defendant asked one of the residents for a cigarette. Based on defendant's prior behavior, the residents ignored him. Defendant then threatened to kill the residents and to blow up their building, all while using homophobic slurs.
After the state charged him with second-degree intimidation, defendant demurred to the indictment. He argued that the second-degree intimidation statute was facially unconstitutional under Article I, section 8, of the Oregon Constitution1 and the First Amendment of the United States Constitution.2 The trial court denied the demurrer; as noted, defendant pleaded no contest to the charge, reserving his right to challenge the denial of his demurrer. ORS 135.630. He now appeals.
We start with defendant's state constitutional challenge. State v. Cookman , 324 Or. 19, 25, 920 P.2d 1086 (1996) (). Defendant's Article I, section 8, challenge is governed by the familiar, if somewhat unwieldy, analytical framework set forth in State v. Robertson , 293 Or. 402, 649 P.2d 569 (1982). Under Robertson , a law is unconstitutional if it is "written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication" unless the scope of the restraint is "wholly confined within some historical exception[.]" Id. at 412, 649 P.2d 569. If a law is not directed at the substance of any opinion, a court must nonetheless determine whether the law focuses on forbidden effects and "the proscribed means [of causing those effects] include speech or writing," or whether it is "directed only against causing the forbidden effects." State v. Babson , 355 Or. 383, 391, 326 P.3d 559 (2014) (quoting Robertson , 293 Or. at 417-18, 649 P.2d 569 ). "If the law focuses on the forbidden effects, and the proscribed means of causing those effects include expression, then the law is analyzed under the second Robertson category." Id. Under that category, we determine "whether the law is overbroad, and, if so, whether it is capable of being narrowed." Id. If the law focuses only on forbidden effects, the law falls into the third Robertson category, and an individual can bring an as-applied challenge to the law. Id.
Our task here is to apply that framework to the law that defendant challenges, ORS 166.155(1)(c)(A) (2017), amended by Or. Laws 2019, ch. 553, § 1.3 That law provides that a person commits second-degree intimidation if the person "intentionally, because of the person's perception of race, color, religion, sexual orientation, disability or national origin of another person or of a member of the other's family, subjects the other person to alarm by threatening" to "inflict serious physical injury upon or to commit a felony affecting the other person" or that person's family member. ORS 166.155(1)(c)(A).
On appeal, the parties agree—as do we—that ORS 166.155(1)(c)(A) is directed at the pursuit of forbidden effects, namely, causing another personal alarm by threatening serious injury or to commit a felony. See State v. Moyle , 299 Or. 691, 697-98, 705 P.2d 740 (1985) (). The parties also agree—and we again agree—that the harm identified in the law is one that can be brought about by the use of words, e.g. , threats. See id. In short, the law is one that falls into the second Robertson category. As such, we are required to evaluate the law to determine if it "appears to reach communication privileged by Article I, section 8, or whether the law can be interpreted to avoid such overbreadth." State v. Rangel , 328 Or. 294, 300, 977 P.2d 379 (1999). In doing so, we must maintain "reasonable fidelity to the legislature's words and apparent intent." Id. at 302, 977 P.2d 379.
A trifecta of cases in which the Oregon Supreme Court has interpreted laws similar to the second-degree intimidation statute help illustrate, both individually and collectively, the constitutional parameters of laws that are designed to protect Oregon citizens against harassment and threats. We thus describe those cases in some detail.
In Moyle , 299 Or. 691, 705 P.2d 740, the Supreme Court construed a harassment law that prohibited a telephonic or written threat, former ORS 166.065(1)(d) (1971), renumbered as ORS 166.065(1)(c) (1987). That law provided that a person commits the crime of harassment if, "with intent to harass, annoy or alarm another person," the defendant "[s]ubjects another to alarm by conveying a telephonic or written threat to inflict serious physical injury on that person or to commit a felony involving the person or property of that person or any member of that person's family, which threat reasonably would be expected to cause alarm." Id. at 693, 705 P.2d 740.
The court first determined that the law was a category two law under Robertson . Id. at 702, 705 P.2d 740. In light of that conclusion, the court thus had to assess whether the law was overbroad and whether it could be narrowed to avoid constitutional infirmity. Id. In addressing the first question, the court concluded that the statute as written could implicate constitutionally protected expressions. Id. But the court narrowly construed several of the key elements and concluded that the law was facially constitutional. Id. at 703, 705 P.2d 740. The court's analysis began with the term "alarm." Id. In the statute's context, the court concluded that "alarm" meant more than the "mere inconvenience or feelings of anguish"; rather, the court held that "alarm" meant "being placed in actual fear or terror resulting from a sudden sense of danger." Id. at 703, 705 P.2d 740.4 The court also read "threat to inflict serious physical injury" to mean "fear of physical harm to one's person." Id. In the court's view, that construction was consistent with the "traditional breach of the peace requirement that fear of imminent personal violence be instilled in the victim." Id. And in light of those narrowing constructions, the court construed "felony" to cover only threats to commit "violent felonies." Id.
The court then considered whether the fact that the law required neither proof of a specific intent to carry out the threat nor an ability to do so affected its constitutionality. Id. It ultimately concluded that it did not, because the requirements of actual alarm and the reasonableness of that alarm had a "similar purpose." Id. In other words, the practical effect of those elements meant that the law limited the reach of the law to threats that are not constitutionally protected, namely threats that "are so unambiguous, unequivocal and specific to the addressee that they convincingly express to the addressee the intention that they will be carried out." Id. Construing the statute in that manner restricted the law to those threats that would objectively—not just subjectively—cause the victim to believe that the threat will be carried out. Id. at 703-04, 705 P.2d 740.
Finally, the court went on to read the law to punish "only the person who expresses the intent to carry out the threatened conduct" and "only if that person conveys the threat to the intended victim[.]" Id. at 704, 705 P.2d 740. Construing the law in that manner would distinguish between punishable threats and "ambiguous, equivocal or non-addressee" statements to inflict injury that does not—or should not—cause a reasonable belief that the threat will be carried out. Id.
Relying heavily on Moyle , the court in Rangel applied a narrowing construction in construing a law that prohibited stalking. In Rangel , the state charged the defendant with stalking under ORS 163.732. 328 Or. at 296, 977 P.2d 379. That statute provided that a person commits stalking if they "knowingly alarm[ ] or coerc[e] another person" by engaging in "repeated and unwanted contact" and it is "objectively reasonable for a person in the victim's situation to have been alarmed or coerced" and the repeated and unwanted contact cause the victim "reasonable apprehension regarding the personal safety" of...
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State v. Sorrell
...Constitution, because it is an overbroad restriction on protected expression. We recently addressed the same issue in State v. Smith , 319 Or. App. 388, 510 P.3d 217 (2022), and concluded that the statute is not overbroad. Likewise here, we affirm.The two counts in the indictment each alleg......
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State v. Sorrell
...Constitution, because it is an overbroad restriction on protected expression. We recently addressed the same issue in State v. Smith, 319 Or.App. 388, __ P.3d__(2022), and concluded that the statute is not overbroad. Likewise here, we affirm. The two counts in the indictment each alleged th......