Defendant and three codefendants were charged in the same indictment with assault in the fourth degree, ORS 163.160(l)(a), and with intimidation in the first degree. ORS 166.165(l)(a)(A). He and one codefendant waived jury trial and tried their cases to the court; the other codefendants tried their cases to a jury. All were convicted. On appeal, defendant challenges only his conviction under ORS 166.165(l)(a)(A), which is commonly referred to as the Intimidation Law. He claims that the evidence was insufficient to convict him and that ORS 166.165(l)(a)(A) is unconstitutional on its face and as applied to him in this case. We affirm.
At the conclusion of the state’s case-in-chief and at the close of all of the evidence, defendant moved for a judgment of acquittal. ORS 136.445. The court denied the motions. Defendant assigns error to those rulings. In ruling on the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the state. The relevant inquiry is whether a rational trier of fact could find that all of the elements of the crime were proved beyond a reasonable doubt.
State v. King,
Oregon appellate courts have not hád an occasion to define the essential elements of the crime of intimidation in the first degree as the statute is currently written. 1 ORS 166.165(l)(a)(A) provides:
“Two or more persons acting together commit the crime of intimidation in the first degree, if the persons:
‘ ‘ (a) (A) Intentionally, knowingly, or recklessly cause physical injury to another because of their perception of that person’s race, color, religion, national origin or sexual orientation.”
The essential elements are: (1) two or more persons, (2) acting together, (3) who intentionally, knowingly or recklessly
*737
cause physical injury to another, (4) when that action is motivated by their perception of the victim’s race, color, religion, national origin or sexual orientation. The state must prove every element beyond a reasonable doubt.
State v.
Harris,
Defendant concedes that he and his codefendants acted together and knowingly caused physical injury to the victims. The issue is whether the state proved that defendants acted with an unlawful motive. The evidence showed that defendant and his three cohorts, Plowman, Neill and Schindler, drove to a Portland store at Southeast 136th and Powell Boulevard to buy beer. Plowman brought a baseball bat and a homemade club wrapped in black plastic tape with him in the car “[i]n case [he] saw somebody who [he] didn’t like or somebody who didn’t like [him].” Plowman and Neill went inside the store. Defendant and Schindler walked behind the store to urinate.
Serafín and Slumano, the victims, arrived at the store in Slumano’s vehicle. Serafín wanted to make a telephone call. Schindler returned to the front of the store, approached Serafín and asked him if he had any cocaine. Serafín, who speaks only a little English, said he did not have anything and started to walk away. Schindler attacked him, beating him on the head and kicking him. Neill joined Schindler in the attack. Plowman and defendant began beating Slumano, who was sitting in his car. Plowman punched Serafín; Schindler kicked him. Serafín fell to the pavement. Defendant pinned Serafin’s back to the pavement and repeatedly slammed the store’s metal-framed glass entry door against his head. Defendant and his three associates took turns beating Serafín and Slumano, sometimes ganging up three against one. Serafín and Slumano were unarmed and did not fight back. Serafín suffered a gash in his head and minor injuries to his chest, stomach and legs. He had blood coming from his ear and nose. The pain in his head lasted for a week. His finger was injured and interfered with his work for several weeks. Slumano suffered cuts on his lip and near his eyebrow and had blood running from his nose. His jacket was ripped. Both victims suffered swollen eyes.
During the attack, which lasted about two minutes, eyewitnesses heard Neill shout at Serafín, “Talk in English, *738 motherfucker.” Plowman and Schindler screamed “white power” or “white pride” loud enough to be heard 50 feet away. Plowman yelled, “Knock it off with us white boys.” When the store clerk told the assailants that she had called the police, Plowman became even more agitated and screamed, “They’re just Mexicans” and “They’re just fucking wetbacks.” As defendant and the three cohorts sped away in their car, someone inside the car shouted “white power.”
Defendant argues that the evidence was insufficient to convict him, because he did not shout any racial epithet. In essence, defendant claims that unlawful motive may be proved only if the state shows that each defendant made a statement evincing that defendant’s unlawful motive. The argument is not persuasive. A statement, uttered by an assailant before, during or after an attack in which physical injury is inflicted on a victim, will often provide evidence of the assailant’s unlawful motive under ORS 166.165(1)(a)(A). However, an assailant’s statement is not the exclusive means by which a trier of fact is permitted to determine the motive of either the assailant or one who acts together with the assailant. The legislature did not specify the type of evidence that is required to prove unlawful motive. Consequently, any competent evidence may be used.
Just as conduct is competent evidence from which a jury may reasonably infer intent,
State v. Montez,
Defendant, without citing any authority, also argues that the state must prove that one or more persons are motivated to act
solely
or
principally
because of their perception of a victim’s race, color, religion, national origin or sexual orientation. We disagree. Motive is “a cause or reason that moves the will and induces action.”
State v. Walker,
Defendant also assigns error to the court’s overruling of his demurrer. ORS 135.660. He claimed that the indictment failed to state an offense, because the Intimidation Law violated several state and federal constitutional provisions. ORS 135.630(4);
see State v. Robertson,
We reach the same conclusion with respect to the subsection of the Intimidation Law that prohibits “physical injury” at issue here. No person is subject to punishment under the Intimidation Law merely for holding or expressing opinions that are inimical to others because of their race, color, religion, national origin or sexual orientation. The focus of the statute is to forbid a result: physical injury. The fact that speech, writing or conduct may be used to prove unlawful motive does mean that the statute violates Article I, section 8.
See State v. Robertson, supra,
We also conclude that ORS 166.165(l)(a)(A) does not violate the First Amendment. As we explained above, the section of the Intimidation Law under which defendant was convicted proscribes the infliction of physical injury accompanied by an unlawful motive; it does not regulate belief or expression. Although some conduct, such as flag burning during a political demonstration, is “expressive” and, therefore, protected by the First Amendment,
United States v.
Eichman, _ US _,
Defendant also argues that the Intimidation Law is vague and consequently violates the privileges and immunities clause, Article I, section 20, and the prohibition against
*741
ex post facto
laws, Article I, section 21, of the Oregon Constitution.
See State v. Robertson, supra,
ORS 166.165(l)(a)(A) is not vague. We set out the elements of the crime in our discussion of the sufficiency of the evidence. An ordinary person could understand what conduct the statute proscribes. Defendant argues that the phrase “because of the perception of’ is inherently nebulous and lacks a reasonable degree of certainty. We disagree. On its face, the language is unambiguous. The legislature intended to make the actor’s motivation, not the actual status of the victim, the relevant consideration in that element of the crime. 5
Defendant also contends that the Intimidation Law is vague, because proving that a defendant acted because of his perception of the victim’s race, color, religion, national origin or sexual orientation is difficult, if not impossible. We reject defendant’s presumption that a trier of fact is incapable of determining motive. Moreover, defendant’s argument misses the mark. Difficulty of proof cannot make a statute vague.
We also reject.defendant’s vagueness challenge under the federal constitution. The Due Process Clause of the Fourteenth Amendment requires that a penal statute be sufficiently explicit to provide notice of what conduct is forbidden.
Village of Hoffman Estates v. Flipside, Hoffman
*742
Estates, Inc.,
Affirmed.
Notes
The statute, originally enacted in 1981, Or Laws 1981, ch 785, was amended in 1983 and in 1989. Or Laws 1983, ch 521; Or Laws 1989, ch 1029.
State v. Harrington,
Defendant also argues that the facts stated in the indictment do not constitute a crime, because it alleges only that he knowingly caused physical injury “because of’ the victim’s race and national origin and did not use the statutory language that he caused the physical injury “because of [the assailants’] perception” of the victim’s race or national origin. Count 1 of the indictment alleges:
“The said defendants, on or about November 25,1989, in the County of Multnomah, State of Oregon, did unlawfully, acting together with each other, and became of the race and national origin of Serafin Santiago and Slumano Augustine [sic], knowingly cause physical injury to Serafin Santiago and Slumano Augustine [sic], contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon.” (Emphasis supplied.)
The state observes, correctly, that defendant did not raise that argument below and, consequently, failed to preserve it for appeal. Defendant argues that we should address the issue anyway, because it is error apparent on the face of the record. ORAP 5.45(2). We decline, because the error, if any, is not “apparent” within the meaning of ORAP 5.45(2).
State v. Brown,
Article I, section 8, provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write or print fieely on any subject whatever; but every person shall be responsible for the abuse of this right.”
The 1981 statutory scheme was different. Former ORS 166.155(1) provided:
“A person commits the crime of intimidation in the second degree if, by reason of the race, color, religion or national origin of another person, the person violates ORS *740 violates ORS 164.345 or ORS 166.065.”
Former ORS 166.065(l)(a) provided:
“A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, the actor:
“(a) Subjects another to offensive physical contact.”
Floor debate in the Senate and in the House of Representatives confirms what is evident from the language of the 1989 amendment. Senator Springer said that the addition of sexual orientation to the Intimidation Law would criminalize conduct motivated by “that status alone or that perceived status.” Senate Floor Debates, July 2,1989, Tape 245, Side B. Representative Bauman said that “the inquiry is not * * * into whether the victim is a homosexual or a heterosexual. The inquiry is the motivation for the attack.” House of Representatives Floor Debates, July 2, 1989, Tape 37, Side 2.