State v. Koenig, 242 P.3d 649

Background

Consolidated criminal cases: five counts of telephonic harassment under ORS 166.090 and one count of criminal trespass in the second degree under ORS 164.245; convictions on all six counts challenged.
Letters from Washington County authorities forbade defendant from calling certain county offices for three years and instructed business to be conducted in writing.
Defendant made additional calls in Feb. and Oct. 2007, leading to the harassment charges; he waived a jury and moved for judgment of acquittal after the state's case.
Defendant argued ORS 166.090(1)(b) requires proof of intent to harass coupled with knowledge of being forbidden from calling, and that the evidence failed to show such intent; he also argued the content of calls could not be used to prove intent due to Article I, section 8.
At trial, the court denied the motion to acquit; jury convicted on all five harassment counts; the trespass case proceeded under a separate exclusion notice.
The Court of Appeals reversed the trespass conviction and remanded for resentencing on that count, while affirming the harassment convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the evidence support intent to harass for the five harassment counts?	State contends circumstantial evidence, including calls after notices and the content, show intent to harass.	Koenig asserts no evidence of harassing intent; calls were for information and state law discussions.	Yes; sufficient evidence to prove intent to harass beyond a reasonable doubt.
May the content of calls be used to prove intent under ORS 166.090(1)(b) without violating Article I, section 8?	State relies on content to infer intent to harass.	Content should not be used to prove mental state if it contravenes free speech protections.	Content admissible to prove intent; statute not unconstitutional as applied.
Was the motion to dismiss the proper vehicle to challenge the exclusion notice in the trespass count?	State advocated remand for process on exclusion; conceded error.	Notice of exclusion deprived due process; dismissal appropriate to challenge sufficiency.	Motion to dismiss improper; the more appropriate issue was sufficiency of evidence via judgment of acquittal.
Was defendant ‘lawfully directed not to enter’ the Public Services Building for purposes of criminal trespass in the second degree?	State needed to prove the notice did not run afoul of due process; evidentiary challenge unnecessary if properly directed.	Exclusion notice violated procedural due process because there was no constitutionally adequate process to challenge it; thus not lawful direction.	No; after review, the court held the notice was defective for lack of due process and reversed the trespass conviction.

Key Cases Cited

State v. Allison, 325 Or. 585 (1997) (requires proof of intent to harass and no communicative purpose under ORS 166.090(1)(a))
State v. Johnson, 345 Or. 190 (2008) (overbreadth concerns under Article I, section 8; Johnson I)
State v. Marbet, 32 Or.App. 67 (1978) (meaning of ‘lawfully directed’ for trespass cases; constitutional limits)
State v. White, 211 Or.App. 210 (2007) (lawfulness of order; proof issues in trespass second degree)
State v. Barnes, 232 Or.App. 70 (2009) (procedural due process in exclusion notices)
State v. Johnson II, 163 Or.App. 74 (1999) (whether defendant was lawfully directed; evidentiary relevance)
Weber, 172 Or.App. 704 (2001) (pretrial dismissal; evidentiary challenges to notice)
State v. Dahl, 323 Or. 199 (1996) (constitutional constraints in interpreting law enforcement actions)
Mathews v. Eldridge, 424 U.S. 319 (1976) (due process balancing framework)