Argued and submitted on August 21, 2013.
Clackamas County Circuit Court CR1013578 Kathie F. Steele, Judge.
Jonah Morningstar, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Pamela J. Walsh, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
Defendant appeals a judgment of conviction on one count of stalking, ORS 163.732, contending that the trial court erred in denying his motion for a judgment of acquittal (MJOA) at the close of the state's case-in-chief. Specifically, defendant contends that the state was required to prove that his conduct amounted to an unequivocal threat under State v. Rangel, 328 Or 294, 977 P.2d 379 (1999), and that the state's evidence was insufficient to establish such. We agree and reverse.
Ordinarily, "[o]ur standard for reviewing the denial of the motion for judgment of acquittal is whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt." State v. Paragon, 195 Or.App. 265, 267, 97 P.3d 691 (2004). Although we are reviewing the denial of an MJOA, the dispositive question in this case presents a question of law that we review for legal error.
The facts are undisputed and a brief summary of them will suffice for purposes of this opinion. Defendant lived next door to the Nelson family. Defendant began a series of interactions with the Nelsons that they considered unwelcome. The last incident occurred on October 31 when defendant began yelling at Mr. Nelson, who described the encounter by stating, "When I went outside is when [defendant] wanted to fight me. He * * * called me a pussy. He said, 'My dad's a pussy. The neighbor's a pussy. Everybody's a pussy.' He's a bodybuilder. He exposed his shirt, showed me his * * * torso, abdomen, whatever. He wanted to fight me." Mr. Nelson stated that defendant continued to "egg[ ] it on, " and was trying to "lure" him over into a fight. There is no evidence that defendant approached Mr. Nelson during the encounter. Mr. Nelson eventually responded, "Why don't you come over and kick my ass, then?" Mr. Nelson began to approach defendant, but Mrs. Nelson came out of the house and defused the situation by telling defendant to leave them alone and Mr. Nelson to come inside. Mrs. Nelson testified that she did not hear precisely what defendant was saying during the encounter, but that, in general terms, he was "just * * * pestering my husband to come over and beat him up."
Defendant was arrested and charged with criminal stalking under ORS 163.732. The information alleged, as pertinent:
"[D]efendant * * * on or about October 31, 2010, in Clackamas County, Oregon, did unlawfully and knowingly alarm [Mr.] Nelson by engaging in repeated and unwanted contact with [Mr.] Nelson by making threatening statements to [Mr.] Nelson, this contact causing [Mr.] Nelson reasonable apprehension regarding the personal safety of [Mr.] Nelson, and it being objectively reasonable for a person in the situation of [Mr.] Nelson to be alarmed by the contact."
ORS 163.732 defines the crime of stalking:
"(1) A person commits the crime of stalking if:
"(a) The person knowingly alarms or coerces another person or a member of that person's immediate family or household by engaging in repeated and ...