State v. Wilcox

• Decision Date: 21 May 1993
• Docket Number: No. 92-355,92-355
• Citation: 628 A.2d 924,160 Vt. 271
• Parties: STATE of Vermont v. Kevin WILCOX.
• Court: Vermont Supreme Court

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.

Christopher C. Moll, Windham County Deputy State's Atty., Brattleboro, for plaintiff-appellee.

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

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

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). 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."

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 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 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 N.E.2d 329, 331 (1977) (legislature has attempted to avoid infringing on protected speech by making the call itself the criminal act); Use of the Telephone to Annoy or Harass, supra, at 415-16.

Thus, the courts have responded to overbreadth challenges by holding that the statutes proscribe conduct rather than speech. As the Arizona Court of Appeals stated:

By specifying the intent with which the call must be made and the nature of the language prohibited, the statute clearly demonstrates that the prohibited activities find no protection under the First Amendment.

. . . . .

We cannot conceive that the State is abridging anyone's First Amendment freedom by prohibiting telephone calls ... that threaten physical harm, provided such calls are made with the intent specified in the statute.

Hagen, 27 Ariz.App. at 725, 558 P.2d at 753 (emphasis in original). The reasoning of other courts has been the same. See Gormley, 632 F.2d at 941-42 ("Clearly the Connecticut statute regulates conduct, not mere speech. What is proscribed is the making of a telephone call, with the requisite intent and in the specified manner."); Gattis, 105 N.M. at 199, 730 P.2d at 502 (by focusing on intent at time call is made, New Mexico statute proscribes conduct rather than speech).

The State argues that such a holding would frustrate the purpose of the statute because it would be impossible to prove a caller's intent at a time before the actual threat. We disagree. Intent is usually inferred from circumstances rather than shown by direct proof. Caldwell v. State, 26 Md.App. 94, 337 A.2d 476, 484 (1975) (construing telephone harassment statute). The intent to make a threatening phone call can be inferred from the actions, conduct or words of the defendant. People v. Cooper, 32 Ill.App.3d 516, 336 N.E.2d 247, 249 (1975); Gattis, 105 N.M. at 200, 730 P.2d at 503; see Lusch v. State, 31 Md.App. 271, 356 A.2d 277, 283 (1976) (circumstances surrounding repeated calls to public official were sufficient for jury to conclude that calls were made with intent to harass).

The overriding objective of statutory construction is to declare the intent of the Legislature. State v. Yudichak, 147 Vt. 418, 420, 519 A.2d 1150, 1151 (1986). Where the meaning of a statute is plain on its face, the statute must be enforced according to its express terms. Heisse v. State, 143 Vt. 87, 89, 460 A.2d 444, 445 (1983); see Yudichak, 147 Vt. at 420, 519 A.2d at 1151 ("We presume that the plain, ordinary meaning of statutory language is intended."). Section 1027(a) makes it unlawful for a "person who, with intent to terrify, intimidate, threaten, harass or annoy, telephones another and ... threatens ... harm." Thus, the plain meaning of the statutory language, like the statute's legislative history, indicates that intent should be measured at the time the person telephones. Accordingly, we hold that the intent element of § 1027(a) is measured at the time the telephone call is made. In light of our holding, the court's instruction on intent was erroneous, and the conviction must be reversed.

Because defendant also objected to the court's denial of his motion for judgment of acquittal, we must determine whether the matter should be remanded for a new trial. The standard we employ is whether, when viewed most favorably to the State, the evidence is sufficient to convince a reasonable trier of fact that all the elements of the crime are satisfied and the defendant is guilty beyond a reasonable doubt. State v. Elkins, 155 Vt. 9, 17-18, 580 A.2d 1200, 1204 (1990). At the outset in this determination, we reject defendant's contention that the statement--"How would you like to be shot?"--is not covered by the statute because it...