State v. Johnson, 536 P.3d 1029

Background

Defendant and J had a two-year intimate relationship that ended in January 2018; J later tried to sever contact and blocked defendant.
Defendant persistently contacted J (thousands of calls/emails, voicemail filling), flew a drone over J’s and M’s homes, hacked J’s phone and Facebook, and had prior physical violence against J.
Defendant sent multiple threatening voicemail messages on November 27 to J and to neighbor M, explicitly saying M was "dead" or would die and that J "would die together" with M; some messages referenced details that alarmed M.
M had previously confronted defendant after a threat and had asked police to stop defendant’s contact; M testified he was frightened for himself and his children and thought defendant could carry out threats.
Case tried to the court after defendant moved for judgment of acquittal; trial court denied MJOA, found defendant guilty of two counts of stalking (ORS 163.732) and multiple telephonic harassment counts (ORS 166.090); Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant's expressive communications to J met Rangel's imminence requirement for stalking	State: Context (prior violence, surveillance, hacking, persistence) made threats "near at hand" and objectively likely to be carried out	Defendant: Could not threaten imminent harm because he did not know J’s current address on Nov 27	Held: Threats to J were sufficiently imminent under Rangel given prior violence and persistent efforts to locate her; conviction affirmed
Whether defendant's voicemails caused M subjective fear required for stalking	State: M’s testimony and prior contacts support that he was alarmed and reasonably feared violence	Defendant: M did not explicitly testify he feared for his own safety; evidence insufficient of subjective fear	Held: M’s testimony (anxiety, concern for kids, belief defendant could follow through) plus context permitted inference of subjective fear; conviction affirmed
Whether ORS 166.090(1)(c) is facially overbroad and not amenable to narrowing (telephonic harassment)	State: Statute validly penalizes forbidden repeated messages; no obvious constitutional error on record	Defendant: Statute captures protected expressive conduct and is overbroad	Held: Argument not preserved; court declines plain-error review because legal points are not obvious; no relief granted
Whether ORS 166.090(1)(b) conviction required proof Defendant caused J’s phone to ring	State: Defense invited the issue and could have developed record; argues trial fairness favors declining review	Defendant: Record lacks evidence that J’s phone actually rang as statute requires	Held: Omission was plain error (statute requires causing phone to ring), but court declines discretionary review due to preservation policy and unfairness to state; conviction stands

Key Cases Cited

State v. Rangel, 328 Or 294 (1999) (establishes standard for when expressive communications qualify as unprotected threats under Article I, §8)
State v. Murphy, 306 Or App 535 (2020) (standard of review for MJOA and considering facts in light most favorable to state)
S. L. L. v. MacDonald, 267 Or App 628 (2014) (applies Rangel: expressive threat must instill fear of imminent serious violence)
State v. Martin, 315 Or App 689 (2021) (factual context of relationship is probative in stalking cases)
State v. Hejazi, 323 Or App 752 (2023) (distinguishes threats to strangers that followed immediate retreat — no imminence)
Goodness v. Beckham, 224 Or App 565 (2008) (emails lacking unequivocal threat and address knowledge held nonimminent)
State v. Moyle, 299 Or 691 (1985) (hyperbole and impotent expressions do not constitute threats)
State v. Shifflett, 285 Or App 654 (2017) (ORS 166.090(1)(b) requires causing the other person's phone to emit an audible sound)
Boyd v. Essin, 170 Or App 509 (2000) (petitioner’s testimony and history of assaultive behavior can support inference of alarm)