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State v. Wiborg

Court of Appeals of Oregon

April 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID ROY WIBORG, Defendant-Appellant.

          Argued and submitted October 28, 2015

         Union County Circuit Court M19635, M19663; Brian Dretke, Judge.

          Lindsey Burrows, Deputy Public Defender, Offce of Public Defense Services, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender.

          E. Nani Apo, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Auten, Assistant Attorney General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         Defendant appeals from judgment of conviction for three counts of improper use of the emergency communications system, ORS 165.570(1). Defendant argues that the trial court erred because it convicted him based on an improper construction of the term "knowingly" in ORS 165.570(1) and that under a correct construction of the statute, defendant was entitled to judgments of acquittal. Held: The trial court erred when it convicted defendant after requiring the state to prove only that defendant knowingly called emergency services and that defendant's belief as to his need for those services was unreasonable. To prove that defendant violated ORS 165.570(1), the state was required to prove both that defendant knew that he was calling emergency services and that defendant knew that he was calling for a reason other than a proper purpose. Because the record contained evidence sufficient to withstand a motion for judgment of acquittal, the proper remedy is to reverse and remand for a new trial applying the correct construction of ORS 165.570(1).

         Reversed and remanded.

          FLYNN, J. pro tempore

         In this consolidated criminal case, defendant appeals from judgments of conviction for improper use of the emergency communications system, ORS 165.570.[1] His convictions arise from two incidents in which defendant called 9-1-1 to report his belief that prowlers had entered his property. On appeal, the dispute turns on how to construe the culpable mental state requirement of ORS 165.570, which makes it a crime for a person to "knowingly" make an emergency call "for a purpose other than to report a situation that the person reasonably believes requires prompt service in order to preserve human life or property." The trial court, sitting as factfinder, construed the statute to require only proof that the person knowingly made an emergency call while lacking an objectively reasonable belief in the need for emergency services, and the court found defendant guilty under that formulation. Defendant argues that ORS 165.570 requires proof that he knew that his purpose in calling emergency services was other than to report a reasonable belief in the need for emergency services. We agree that ORS 165.570 requires proof that the caller knew that he or she was calling for a prohibited purpose.

         Defendant argues that he was entitled to judgments of acquittal under a correct construction of the statute, because the responding officers agreed that defendant genuinely believed that prowlers had entered his property. Alternatively, defendant argues that the court erred in convicting him without considering whether he knew that he was calling for other than a proper purpose.[2] We conclude that there is evidence from which the court could find that defendant knew he was calling for a prohibited purpose but that the trial court applied an incorrect legal standard with regard to that element of the offense and, thus, did not make a finding on an element necessary to convict. Therefore, we reverse and remand for a new trial.

         I. BACKGROUND

         The events leading to defendant's first arrest began with defendant placing a call to 9-1-1 to report prowlers on his property. Two police officers responded to the call and searched the property, but they found no evidence of prowlers. They assured defendant that there were no prowlers and told him not to call 9-1-1 again. However, later that night, defendant made four more calls to 9-1-1. Three were inaudible, and in a fourth, defendant again reported that there were prowlers on his property. Officers again responded and searched the area but, again, could not find evidence of prowlers. When they explained this to defendant, the officers observed that defendant seemed paranoid, was sweating profusely, and could not stand still. They concluded that he was intoxicated. When defendant started complaining that there were people behind him, the officers handcuffed him and took him to jail. Based on those events, defendant was charged with violating ORS 165.570.

         One month later, defendant called 9-1-1 to report that he could hear people walking on his roof and in his attic. Officers responded but could not find prowlers and noted that defendant's mobile home did not have an attic. Later that evening, defendant called 9-1-1 again to report a "spiritual emergency." Officers responded and assured defendant that there were no people on his roof or property. They asked defendant to go to the police station to meet with a mental health professional, but he refused. The officers warned defendant that he would be arrested if he called 9-1-1 again. Defendant called 9-1-1 a third time that night, and the officers arrested him. Defendant was again charged with violating ORS 165.570.

         Defendant tried both cases to the court in a consolidated bench trial. He offered evidence that, on both nights, he actually believed-even if unreasonably-that he was reporting a situation that required emergency services. He argued that he was entitled to be acquitted of the charges under ORS 165.570 because the state did not prove that defendant knew he was calling for a purpose other than to report a situation that he reasonably believed required emergency services. The court rejected defendant's construction of the statute. The court found that defendant knowingly placed the calls to emergency services and that defendant lacked an objectively reasonable belief in the need for those services. On the basis of those findings, the court found defendant guilty on all counts.

         II. ANALYSIS

         On appeal, defendant renews his argument that he could be convicted of violating ORS 165.570 only if he knew that he was calling for a purpose other than to report a situation that he reasonably believed required emergency services. The statute provides, in pertinent part:

"(1) A person commits the crime of improper use of the emergency communications system if the person knowingly:
"(a) Makes an emergency call *** for a purpose other than to report a situation that the person reasonably believes requires prompt service in order to preserve human life or property; or
"(b) Allows another person [to do the ...

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