State v. Wilcox, 92-355

• Docket Nº: No. 92-355
• Citation: 628 A.2d 924, 160 Vt. 271
• Case Date: May 21, 1993
• Court: United States State Supreme Court of Vermont

Page 924

628 A.2d 924 160 Vt. 271 STATE of Vermont
v.
Kevin WILCOX. No. 92-355. Supreme Court of Vermont. May 21, 1993.

[160 Vt. 272] Christopher C. Moll, Windham County Deputy State's Atty., Brattleboro, for plaintiff-appellee.

Sam Kono, Public Defender, Brattleboro, for defendant-appellant.

Before [160 Vt. 271] ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

[160 Vt. 272] DOOLEY, Justice.

Defendant appeals from a jury conviction of disturbing the peace by use of the telephone, in violation of 13 V.S.A. § 1027(a).

Page 925

He argues that the court erred by instructing the jury that the intent required under the statute should be measured at the time the threat was made rather than at the time the call was placed. Relying on the same statutory argument, defendant also contends that the court erred by denying his motion for judgment of acquittal based on insufficiency of the evidence. We reverse.

The alleged victim received a call from defendant, who apparently wished to complain to her husband, a town selectman, about perceived injustices he had suffered at the hands of the town. The caller identified himself, and the wife recognized his voice from several previous calls. Despite the wife's repeated attempts to convince defendant that she could not help him, the phone call lasted approximately twenty minutes. The wife finally hung up when defendant stated something to the effect, "How would you like to be shot?" Defendant was charged under § 1027(a)(ii), which criminalizes telephoning another and threatening "to inflict injury or physical harm to the person" if done with the "intent to terrify, intimidate, threaten, harass or annoy." The information stated that defendant was "a person who with intent to intimidate telephoned another ... and threatened to inflict physical harm."

[160 Vt. 273] After the State rested at trial, defendant moved for judgment of acquittal on the ground that the State had failed to prove that he had the requisite intent at the time the call was placed. In denying defendant's motion, the court ruled that intent should be measured at the time the threat was made. Defendant then rested. He renewed his argument prior to the court's charge, but the court again rejected his interpretation of the statute and gave an instruction on intent in accordance with its earlier ruling. After some deliberation, the jury foreman indicated that the jury was having difficulty reconciling the court's instruction on intent with the statutory language. The court then stated that, as a matter of law, "intent must be measured at the time the words were spoken, not at the time the telephone call was made or immediately prior to it." The jury returned a guilty verdict shortly thereafter.

Section 1027(a) of Title 13 was added in 1967 in response to concern over increased use of the telephone as a vehicle to harass persons. Hearing on H-42 Before the House Judiciary Committee, January 18, 1967, microfilm no. F-671, at 1-2 (statement of representative of telephone company that requested bill). Similarly worded statutes exist in many other jurisdictions, see Annotation, Validity, Construction, and Application of State Criminal Statute Forbidding Use of Telephone to Annoy or Harass, 95 A.L.R.3d 411 (1979) [hereinafter Use of Telephone to Annoy or Harass ], including Arizona, whose telephone harassment statute served as a model for § 1027. Hearing on H-42, supra, at 4-5 (statements of deputy attorney general and telephone company's attorney).

All of the jurisdictions that have addressed this issue, including Arizona, ¹ have concluded that specific intent under these statutes is measured at the time the call is placed. See, e.g., Gormley v. Director, Conn. State Dep't of Probation, 632 F.2d [160 Vt. 274] 938, 941-42 (2d Cir.1980) (interpreting similarly worded Connecticut statute); State v. Hagen, 27 Ariz.App. 722, 725, 558 P.2d 750, 753 (1976); State v. Gattis, 105 N.M. 194, 199, 730 P.2d 497, 502 (Ct.App.1986). The reason for the consensus on this point is clear. The statutes were drafted to respond to a concern that they might unconstitutionally infringe upon protected speech. See, e.g., Walker v. Dillard, 523 F.2d 3, 4-5 (4th Cir.1975) (Virginia telephone harassment statute determined to be facially overbroad because it

Page 926

regulated speech rather than conduct). Indeed, the language of the telephone harassment statutes, as well as the courts' interpretations of that statutory language, are intended to make the statutes impervious to overbreadth challenges grounded on the First Amendment. See People v. Klick, 66 Ill.2d 269, 5 Ill.Dec. 858, 860, 362...