398 P.3d 383
Or. Ct. App.2017Background
- Defendant called and texted the victim on June 7–8, 2013; the victim told him not to call the next morning.
- Defendant left two voicemails after being told not to call.
- Defendant was charged with one count of harassment (ORS 166.065) and two counts of telephonic harassment under ORS 166.090(1)(b) (based on “causing such other person’s telephone to ring” after being forbidden).
- At trial the state relied on the two voicemails as the basis for the telephonic-harassment counts; there was no direct evidence that the victim’s phone emitted an audible ring when those calls arrived.
- The trial court denied defendant’s motion for judgment of acquittal, construing “ring” to mean initiating or triggering the call on the receiving phone rather than requiring an audible sound; the jury convicted on the telephonic-harassment counts.
- On appeal the court reviewed statutory construction de novo and addressed whether “to cause . . . telephone to ring” unambiguously requires the telephone to emit an audible sound.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 166.090(1)(b)’s phrase “cause such other person’s telephone to ring” requires the telephone to emit an audible sound | State: statute protects property/trespass interest in telephone; audible sound not required — unauthorized call suffices | Defendant: plain meaning of “ring” requires an audible sound; no evidence of ringing, so acquittal required | Court: “ring” in (1)(b) is plain and unambiguous and requires the phone to emit an audible sound; convictions reversed |
| Whether legislative history displaces the plain text to treat silent/initiated calls as proscribed trespass | State: legislative history shows trespass focus; would frustrate intent to require audible ring | Defendant: text controls; legislative history cannot overcome plain meaning | Court: legislative history does not overcome unambiguous statutory text; court declines to rewrite statute |
| Whether appellate court may affirm on alternative factual basis (that record supports an audible ring) | State: factfinder could infer an audible ring from earlier answered call and voicemails | Defendant: trial court’s ruling eliminated need to develop such evidence | Court: declines to consider alternative basis because record was not developed on that theory and review would be inappropriate |
| Whether courts should adapt statute to modern phone tech | State: (implicit) statute should cover modern silent/voicemail uses | Defendant: challenges based on plain text | Court: recognizes technological gap but will not judicially amend plain statutory language |
Key Cases Cited
- PGE v. Bureau of Labor and Industries, 317 Or. 606 (statutory text is starting point; plain meaning controls)
- State v. Gaines, 346 Or. 160 (legislative history seldom overcomes plain text)
- State v. Blair, 287 Or. 519 (prior telephone-harassment statute struck as vague)
- State v. Ray, 302 Or. 595 (prior amendment struck as vague/overbroad)
- Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634 (doctrine for affirming on alternative grounds)
- State v. Nascimento, 360 Or. 28 (declining alternative-basis affirmance when evidence is weak and record undeveloped)
- State v. Koenig, 238 Or. App. 297 (standard for reviewing denial of judgment of acquittal)
- State v. Gonzalez-Valenzuela, 358 Or. 451 (context guides meaning when words have multiple dictionary definitions)