313 P.3d 383
Or. Ct. App.2013Background
- Defendant, who lived next door to the Nelsons, engaged in a series of unwelcome interactions; the charged incident occurred October 31.
- On October 31 defendant yelled at Mr. Nelson, called him and others "pussy," exposed his torso, and tried to "lure" Mr. Nelson into a fight; he did not approach or physically threaten Mr. Nelson.
- Mrs. Nelson intervened and diffused the confrontation; no physical assault occurred.
- Defendant was charged with one count of criminal stalking under ORS 163.732, which requires "repeated and unwanted contact" (two or more contacts) that objectively alarms the victim and causes reasonable apprehension about personal safety.
- Because the prosecution relied on October 31 statements as the second contact, the state had to prove those statements amounted to a Rangel-defined "threat" (unequivocal, instilling fear of imminent serious violence, and objectively likely to be followed by unlawful acts).
- At oral argument the state conceded the October 31 statements were not a Rangel threat; the trial court had denied a motion for judgment of acquittal and defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the October 31 statements satisfied Rangel's definition of a "threat" for convictions based on purely communicative conduct | The state argued the statements, viewed with prior contacts, established the required repeated contact and alarmed the victim | Defendant argued the October 31 statements were rhetorical provocation/hyperbole and not an unequivocal threat under Rangel | The court held the October 31 statements did not meet Rangel's threat standard; prosecution conceded as much; MJOA should have been granted and conviction reversed |
Key Cases Cited
- State v. Rangel, 328 Or 294, 977 P.2d 379 (establishes that purely communicative conduct must be a "threat": unequivocal, instills fear of imminent serious violence, and is likely followed by unlawful acts)
- State v. Sierzega, 236 Or App 630, 237 P.3d 234 (notes that purely communicative conduct falls under Rangel and must amount to a threat)
- State v. Moyle, 299 Or 691, 705 P.2d 740 (distinguishes hyperbole and rhetorical excess from actionable threats)
- State v. Paragon, 195 Or App 265, 97 P.3d 691 (standard for reviewing denial of motion for judgment of acquittal)