Appeal from Circuit Court, Lane County. Edward Leavy, Judge. No. 72 1187.
James M. Haberstad, Law Student, argued the cause for appellant. On the brief were Gary D. Babcock, Public Defender, and J. Marvin Kuhn, Deputy Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Schwab, Chief Judge, and Thornton, Judge. Foley, Judge, specially concurring.
Defendant appeals from a conviction upon trial to the court for first degree burglary, ORS 164.225, based on an indictment that charged he unlawfully entered a dwelling house with the intent to commit the crime of harassment, ORS 166.065, therein. His principal contention on appeal is that the harassment statute, ORS 166.065, is unconstitutionally vague and thus his intent at the time of his unlawful entry cannot be considered criminal under the burglary statute.*fn1
On February 17, 1972, defendant made repeated efforts to talk with Karen Holt, whom he had previously dated, at her parents' house. On three occasions her parents gave defendant the message that Karen did not want to see him. Following the third refusal, defendant took a bayonet from his car, returned to the house, opened a door and walked in. Defendant picked Karen up and carried her, against her will, to his car. Karen jumped out of the car and ran back into the house. Defendant followed her, crashed through a locked door, and pulled Karen back outside. Defendant then calmed down and was sitting in his car talking to Karen when the police arrived.
As we understand the record and briefs, the
case was tried on the theory that defendant violated*fn2 either ORS 166.065(1)(a) or 166.065(1)(d) or both.*fn3 They provide:
"(1) A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he:
"(a) Subjects another to offensive physical contact; or
"(d) Engages in a course of conduct that alarms or seriously annoys another person and which serves no legitimate purpose."
The mental element common to both ORS 166.065 (1) (a) and 166.065 (1) (d) is not unconstitutionally vague. The state is required to prove beyond a reasonable doubt that the defendant had the specific "intent to harass, annoy or alarm." See, People v. Jemzura, 29 NY2d 590, 324 NYS2d 315, 272 NE2d 897 (1971); cf., People v. Moyer, 27 NY2d 252, 317 NYS2d 9, 265 NE2d 535 (1970). Common dictionary definitions of the three terms -- harass, alarm, annoy -- are: to perplex, distress, vex, molest, trouble, disturb, badger, irritate, or provoke. All of these terms relate to the invasion of another person's privacy and freedom, either an invasion of the sanctity of his person or an invasion of his peace of mind. All three terms -- harass, alarm, annoy -- are used elsewhere in the law. See,
Moody & Jamison v. Levy & Co., 58 Tex 532 (1883) (attachment statute provided attachment must not be for purpose of "harassing" defendant); Embry v. The Commonwealth, 79 Ky 439, 3 KLR 218 (1881) (statute prohibited conspiracy for purpose of "alarming or disturbing" any person); In re Sheridan, 230 Cal App2d 365, 40 Cal Rptr 894 (1964) (statute penalized annoying or molesting child). The mental element of harassment, ORS 166.065, is precisely defined and ...