State v. Hosley, 388 P.3d 387

Background

Defendant (a neighbor) briefly spoke with T’s father while the father set up a Slip ’N Slide; moments later defendant picked up and hugged T, a seven‑year‑old girl, while crying and made a comment about wanting a girl as pretty as her.
T said the hug felt like how her mother hugs her and made her feel "weirded out."
T’s father was upset but did not confront defendant because defendant appeared distraught and left.
The next day defendant left an envelope at the family’s house containing a letter, a page labeled a “promise” with T’s signature line prefilled by defendant, and instructions to sign and give to mother.
Defendant was charged and convicted (bench trial) of disorderly conduct under ORS 166.025(1)(a) for engaging in "threatening behavior;" he appealed, challenging the sufficiency of the evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant’s conduct (hugging T and leaving the letter) satisfied ORS 166.025(1)(a)’s prohibition on "fighting or violent, tumultuous or threatening behavior"	State: hugging and leaving the letter constituted physical conduct "immediately likely to produce" physical force and thus unlawful under (l)(a)	Defendant: conduct was not physical force nor physical conduct immediately likely to produce force; letter was communicative; hug was not aggressive	Reversed: evidence insufficient—statute reaches physical acts of aggression (physical force or physical conduct immediately likely to produce force); neither the hug nor the letter met that standard
Whether leaving a letter can be treated as physical conduct under (l)(a)	State: the letter is part of the defendant’s conduct supporting (l)(a)	Defendant: leaving a letter is communicative speech; incidental physical act to convey speech is not covered	Held: letter is communicative and not proscribed by (l)(a); common attention‑getting physical acts are excluded
Whether the hug was "physical force" or "immediately likely" to produce force	State: hugging a child without consent can be threatening physical conduct	Defendant: hug was non‑aggressive, brief, and defendant was distraught; victims did not perceive imminent threat	Held: hug did not constitute physical force nor was it immediately likely to produce force when viewed in totality; victims’ perceptions support insufficiency
Whether court needed to resolve whether risk of force refers to force by defendant or by bystanders	State: implied risk could be by either	Defendant: unnecessary to decide	Held: unnecessary to resolve because evidence insufficient on either theory

Key Cases Cited

State v. Cantwell, 66 Or App 848 (construction: (l)(a) covers physical acts of aggression—physical force or physical conduct immediately likely to produce force)
State v. Richardson, 277 Or App 112 (statutory interpretation and exclusion of primarily speech from (l)(a))
State v. Atwood, 195 Or App 490 (totality‑of‑circumstances analysis; conduct must be immediately likely to produce force)
State ex rel Juv. Dept. v. Krieger, 177 Or App 156 (incidental physical acts as common attention‑getting means are not (l)(a) conduct)
State ex rel Juv. Dept. v. Saechao, 167 Or App 227 (group threats and surrounding victim upheld as "tumultuous" conduct under (l)(a))
State v. Davies, 195 Or App 534 (affirming (l)(a) conviction for aggressive physical confrontation causing injuries)
State v. Miller, 226 Or App 314 (kicking a sign with sufficient force held to be a physical act of aggression under (l)(a))