Defendant appeals judgments of conviction in two consolidated criminal cases on five counts of telephonic harassment, ORS 166.090,
1
and one count of criminal trespass
We begin by considering whether the trial court erred in denying defendant’s motion for judgment of acquittal as it relates to the five counts of telephonic harassment. Those five counts arose out of defendant’s conduct in calling various Washington County public offices. On January 5, 2007, in response to “increasingly disruptive, time-consuming, and rude” telephone calls by defendant, the Office of Washington County Counsel issued a letter forbidding defendant from calling the Office of Washington County Counsel, the Washington County Administrator’s Office, or the Washington County Human Resources Department, for a period of three years. In addition, that same day, the Washington County Sheriffs Office issued a letter forbidding defendant from calling the Washington County Sheriffs Office because defendant’s calls to the Sheriffs Office had also become “increasingly time consuming and disruptive.” Defendant was instructed in both letters that he could conduct any necessary business with the respective offices through written correspondence.
In February 2007, defendant made calls to the Office of Washington County Counsel and the Washington County Human Resources Department. And, in October 2007, defendant made additional calls to the Washington County Administrator’s Office and the Washington County Sheriffs Office. On the basis of those additional calls, defendant was charged with the five counts of telephonic harassment of which he was ultimately convicted.
Defendant waived his right to a jury trial and, following the close of the state’s case-in-chief, moved for a judgment of acquittal. As to the counts of telephonic harassment, he argued that there was no evidence that his intent at the time he caused the phones to ring was anything other than to discuss state law and obtain information. In particular, defendant contended that his intention was not to vex, annoy, or harass, but only to obtain information and communicate his views. 3 The trial court denied the motion and, ultimately, rendered a guilty verdict on each of the telephonic harassment counts.
On appeal, defendant argues that “the state is required to prove that a defendant charged with telephonic harassment under ORS 166.090(l)(b) had the intent to harass when he placed the call
and
knew that he was prohibited from calling by someone exercising lawful authority over the receiving telephone.” (Emphasis in original.) Defendant renews the argument he made below that the record is devoid of evidence that he had the intent to harass or annoy the recipients of the calls at the time he caused the telephones to ring; rather, according to defendant, the record indicates that his intent at that time was to obtain information. Defendant also argues that calls made before the issuance of the letters
forbidding him from calling are not relevant to determining his intent in placing the calls underlying the telephonic harassment charges. In addition, defendant argues that, if ORS 166.090 requires a factfinder to consider the content of the words spoken by the caller to determine
The state responds that the circumstantial evidence presented in this case could lead a rational trier of fact to conclude that defendant intended to harass or annoy the recipients of his calls. As part of the evidence from which defendant’s intent can be inferred, the state relies on defendant’s own testimony at trial. There, defendant testified that “the prerogative of the people is to bother their public servants until they do what their oath of office says.” Further, defendant testified, “When you first don’t get a response, sometimes you escalate. * * * If you still don’t get a proper response, you escalate some more.” Although the state acknowledges that defendant may have intended to address various government policies with his calls, the state contends that “[defendant] also intended to annoy.”
We review the denial of a motion for judgment of acquittal to determine “whether, after viewing the facts in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.”
State v. Schneider,
A telephone caller commits the crime of telephonic harassment, as provided by ORS 166.090(1), if
“the caller intentionally harasses or annoys another person:
“(a) By causing the telephone of the other person to ring, such caller having no communicative purpose;
“(b) By causing such other person’s telephone to ring, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone; or
“(c) By sending to, or leaving at, the other person’s telephone a text message, voice mail or any other message, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone.”
In
State v. Allison,
As an initial matter, we disagree with defendant’s argument that a trier of fact is prohibited, under Article I, section 8, from considering the content of his calls when determining whether he possessed the requisite intent to have violated ORS 166.090(l)(b). Generally, “the content of a person’s speech may be used to prove a mental element of a crime.”
Allison,
In
Johnson I,
the court held that the prohibition contained in ORS 166.065(l)(a)(B)
The statute at issue in
Johnson I
fell squarely into the second
Robertson
category. ORS 166.065(1)(a)(B) prohibited harassment (a forbidden result) by the express means of abusive words or gestures (expression); the court found the statute to be facially overbroad.
Johnson I,
Having reviewed the record as a whole in the light most favorable to the state, we conclude that there is sufficient evidence from which a rational trier of fact could have found, beyond a reasonable doubt, that defendant intended to harass or annoy the recipients of his calls. We readily reach that conclusion based on the frequency and length of defendant’s calls after receiving the letters forbidding him from calling, the content of those calls, and, most significantly, defendant’s own testimony at trial. 6 The trial court did not err in denying defendant’s motion for judgment of acquittal on the five counts of telephonic harassment.
We turn, then, to defendant’s remaining assignments of error regarding the charge of criminal trespass in the second degree. That count arose out of defendant’s conduct in entering Washington County’s Public Services Building. On January 24, 2007, the Sheriffs Office issued a notice of exclusion to defendant because, according to the notice, defendant twice insulted entrance security personnel at the county courthouse and disrupted the movement of people there. The
On February 8, 2007, defendant had business to conduct in the courthouse regarding a set-over that he sought in his writ of review case. Two deputies escorted defendant around the courthouse while he conducted that business. Thereafter, the deputies watched defendant leave the courthouse and walk toward the Public Services Building. The deputies followed defendant and located him inside that building, where defendant told the deputies that he did not have any official business to conduct there. Defendant was then arrested and subsequently charged with criminal trespass in the second degree pursuant to ORS 164.245. The charging instrument alleged, “The defendant, on or about February 8,2007, in Washington County, Oregon, did unlawfully and knowingly enter and remain in and upon premises located at 155 N. First Avenue, Hillsboro OR[,] contrary to the statutes and against the peace and dignity of the State of Oregon.” On March 9, 2007, a month after being charged with criminal trespass, an order was entered in defendant’s writ of review case dismissing his petition.
Before his criminal trial in November 2007, defendant filed a “motion to dismiss” all charges, including the count of criminal trespass in the second degree. In his supporting memorandum, defendant argued that the notice of exclusion was unlawful and violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution on both substantive and procedural grounds. 7 Under substantive due process, defendant argued that the notice was unlawful because it interfered with his fundamental right to petition government departments and was not narrowly tailored to achieve a compelling state interest. Under procedural due process, defendant argued that the notice was unlawful because the availability of the appeal process indicated in the notice was a “sham” and that process — a writ of review — made no provision for the taking of evidence. Thus, defendant contended, “[b]ecause of those two due process violations, the [notice is] not lawful and cannot serve as the basis for criminal prosecution.” The trial court denied the “motion to dismiss.” Defendant later renewed his procedural due process argument in his motion for judgment of acquittal. The trial court also denied that motion and, ultimately, found defendant guilty of criminal trespass in the second degree.
On appeal, defendant separately assigns as error the denial of his “motion to dismiss” and the denial of his motion for judgment of acquittal on the count of criminal trespass in the second degree. Defendant reprises the same procedural due process arguments he made below with respect to each assignment of error; specifically, defendant contends that he had a fundamental liberty interest in petitioning his government for redress of grievances, and that, “[b]ecause [he] did not have the ability to challenge the [notice of exclusion], the state failed to present evidence that [he] was lawfully directed not to enter’ the Public Services Building as required by ORS 164.245.” The state agrees with defendant that the trial court erred when it denied his “motion to dismiss” and asks this court to vacate, rather than reverse, defendant’s conviction; the state contends that a remand to the trial court to afford defendant process on the notice of exclusion is the appropriate disposition. In addition, the state notes that its
Although the state has conceded a legal conclusion— that the trial court erred in denying the “motion to dismiss”— we are not obligated to take such a concession at face value.
See State v. Miller,
“Oregon law provides for motions to dismiss on a range of grounds. See, e.g., ORS 135.470 (former jeopardy); ORS 135.745 to ORS 136.750 (precharge delay and speedy trial); State v. Nelson,166 Or App 189 , 194,999 P2d 1161 (2000) (prosecutorial vindictiveness). However, we are unaware of any Oregon authority by which a pretrial ‘motion to dismiss’ can be employed to challenge the sufficiency of the state’s anticipated proof of a charge. See State v. Huffman,49 Or App 823 , 826,621 P2d 78 (1980) (dismissal inappropriate remedy when officer exceeded his authority in serving summons outside his jurisdiction).”
State v. Weber,
The proper procedural vehicle for challenging the sufficiency of the state’s evidence in this case was a motion for judgment of acquittal — a motion that defendant, in fact, made. Therefore, we next consider whether the trial court erred in denying defendant’s motion for judgment of acquittal as it pertained to the count of criminal trespass in the second degree. To recall, ORS 164.245(1) provides that “[a] person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully in a motor vehicle or in or upon premises.” (Emphasis added.) ORS 164.205(3)(c), in turn, defines “enter or remain unlawfully” as “[t]o enter premises that are open to the public after being lawfully directed not to enter the premises.” (Emphasis added.) Here, defendant’s only challenge to the sufficiency of the state’s proof is that the notice of exclusion was not lawful because he was not provided with any process by which to challenge it. For the reasons that follow, we agree with defendant that his motion for judgment of acquittal should have been granted on the count of criminal trespass in the second degree.
To prevail at trial, the state had to produce evidence to show that defendant was “lawfully directed” not to enter the Public Services Building.
See
ORS 164.205(3)(c). In
State v. Marbet,
We more recently discussed the meaning of “lawfully directed” for purposes of proving criminal trespass in the second degree in
State v. White,
“[A]n essential element of criminal trespass in the second degree, ORS 164.245, is that the underlying order to leave the premises must be ‘lawful.’ * * * The lawfulness of such an order may be limited or circumscribed by statutory or constitutional provisions and may be raised as a defense. [Marbet,32 Or App at 72 ]. * * * When the lawfulness of an order is raised as a defense, the state has the burden of proving the element and disproving the defense beyond a reasonable doubt. State v. Cargill,100 Or App 336 , 341, 341 n 5,786 P2d 208 (1990), aff'd by an equally divided court,316 Or 492 ,851 P2d 1141 (1993), overruled on other grounds by Stranahan v. Fred Meyer, [Inc.,]331 Or 38 ,11 P3d 228 (2000).”
Id.
(emphasis added; footnote omitted);
cf. State v. Dahl,
Broadly construed, the phrase “lawfully directed” contemplates inquiries into the lawfulness of the direction that go beyond the delegated authority of the person to issue the direction. Those inquires may include whether the order complied with particular constitutional provisions. Accordingly, in this case, we conclude that the state was required to prove at trial that the notice of exclusion directing defendant not to enter the Public Services Building did not run afoul of the constitutional right to procedural due process that defendant raised.
Cf. State v. Barnes,
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property' interests.”
Mathews v. Eldridge,
We agree with defendant that he has a protected liberty interest in petitioning his government for redress of grievances and that that interest was constrained by the notice of exclusion.
See Huffman and Wright Logging Co. v. Wade,
Here, the notice of exclusion itself indicated that, if defendant wished to appeal the notice, he could “file a writ of review with the Washington County Circuit Court.” However, as a matter of law, a “writ of review” is available only where the decision sought to be reviewed is issued to a party to a “process or proceeding” before an “inferior court, officer, or tribunal.” See ORS 34.020 (providing who may obtain a writ of review). Defendant was not a party to any process or proceeding before the issuance of the notice; therefore, the notice inaccurately instructed defendant to file a petition for a writ of review.
The record before us is devoid of any other evidence indicating that defendant did obtain, or could have obtained, constitutionally adequate process on the notice of exclusion. Thus, we conclude that there is insufficient evidence in the record from which a rational trier of fact could have found that defendant was “lawfully directed” not to enter the Public Services Building. The trial court erred in denying defendant’s motion for judgment of acquittal on the count of criminal trespass in the second degree. 9
In Case No. A137720, conviction for criminal trespass in the second degree reversed; remanded for resentenc-ing; otherwise affirmed. In Case No. A137721, affirmed.
Notes
ORS 166.090 provides, in relevant part:
“(1) A telephone caller commits the crime of telephonic harassment if the caller intentionally harasses or annoys another person:
* ííí * *
“(b) By causing such other person’s telephone to ring, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone!.]”
ORS 164.245(1) provides: “A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully in a motor vehicle or in or upon premises.” (Emphasis added.) And, as relevant in this case, ORS 164.205(3)(c), in turn, defines “enter or remain unlawfully” as “[t]o enter premises that are open to the public after being lawfully directed not to enter the premises.”
In moving for judgment of acquittal on the telephonic harassment counts, defendant also argued that he was making the “same basic argument,” under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, that he had previously made with respect to the criminal trespass count. On appeal, defendant does not renew his due process argument with respect to the counts of telephonic harassment and, accordingly, we do not address it.
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 freely on any subject whatever; but every person shall be responsible for abuse of this right.”
Defendant does not argue, and we do not consider, whether ORS 166.090(l)(b) is unconstitutional as applied to him in these circumstances because the statute improperly regulates the manner of his speech.
See Outdoor Media Dimensions v. Dept. of Transportation,
Given that our conclusion is based on the calls made after defendant was issued the letters forbidding him from calling, we need not address defendant’s argument that calls made before the issuance of those letters are irrelevant to determining his intent to harass or annoy the recipients of his calls.
The Fourteenth Amendment provides, in part, that no state shall “deprive any person of life, liberty, or property, without due process of law[.]”
Nor would recasting defendant’s “motion to dismiss” as a demurrer lead to a different result.
“A
defendant may demur to an accusatory instrument when,
inter alia,
‘it appears upon the face thereof* * * that the facts stated do not constitute an offense.’ ORS 135.630.”
Weber,
The proper remedy for that error is reversal of the criminal conviction. The state’s request that we vacate the conviction and remand to afford defendant process on the underlying notice of exclusion is not well taken.