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State v. Shifflett

Court of Appeals of Oregon

May 24, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JASON DARRELL SHIFFLETT, Defendant-Appellant.

          Argued and submitted November 25, 2015

         Marion County Circuit Court 13C43131; David E. Leith, Judge.

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

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Ortega, Presiding Judge, and Hadlock, Chief Judge, and Lagesen, Judge. [*]

         [285 Or.App. 655] Case Summary:

         Defendant challenges his convictions for telephonic harassment under ORS 166.090(1)(b), which makes it a crime to intentionally harass or annoy another person "[b]y 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." Defendant contends that the trial court should have granted his motion for judgment of acquittal because there was no evidence that his unauthorized telephone calls to the victim caused her telephone to emit an audible sound-i.e., "to ring." The state acknowledges that the plain meaning of "to ring" implies that the telephone must make an audible sound, but argues that the legislative history of the statute demonstrates that the legislature intended to protect a person's property interest in his or her telephone from trespass by a person making unauthorized calls to that telephone. In the state's view, given that the legislature intended to prevent "trespasses" on the victim's telephone, it makes no difference whether the victim's telephone emits an audible sound-it matters only whether the person is being precluded from using their telephone by the caller.

         Held:

         The trial court erred by denying defendant's motion for judgment of acquittal, because the plain and ordinary meaning of "to ring, " as used in ORS 166.090(1)(b), requires the caller to have caused the victim's telephone to emit an audible sound.

         Convictions on Counts 2 and 3 for telephonic harassment reversed; otherwise affirmed.

         [285 Or.App. 656] ORTEGA, P. J.

         Defendant challenges his convictions for telephonic harassment under ORS 166.090(1)(b), which provides that a telephone caller commits the crime of telephonic harassment if the caller intentionally harasses or annoys another person: "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 [.]" Defendant argues that, because there was no evidence that his unauthorized phone calls to the victim's telephone caused that phone to emit an audible sound, the trial court should have granted his motion for judgment of acquittal. The state counters that the legislature did not intend to require an audible sound, but rather intended to protect a person's property interest in his or her telephone from trespass by a person making calls to that telephone after having been told not to do so. Accordingly, the state argues that the trial court correctly concluded that the statute can be violated by a person making an unauthorized call regardless of whether it causes the receiving party's telephone to emit an audible sound. We conclude that the statutory text does not support the trial court's conclusion that it is the act of making an unauthorized call that violates the statute. Rather, the plain and unambiguous text of ORS l66.O9O(1)(b) requires the other person's telephone "to ring, " which we interpret to mean that the telephone must emit an audible sound. Accordingly, we reverse defendant's convictions for telephonic harassment.

         We review the denial of a motion for judgment of acquittal to determine whether, after viewing the facts and all reasonable inferences that may be drawn from those 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. Koenig. 238 Or.App. 297, 301, 242 P.3d 649 (2010), rev den, 349 Or. 601 (2011) (quoting State v. Schneider. 229 Or.App. 199, 201, 211 P.3d 306 (2009)). However, when the dispute "'centers on the meaning of the statute defining the offense, the issue is one of statutory construction, '" which we review for legal error. State v. Hunt. 270 Or.App. 206, 210, 346 P.3d 1285 (2015) (quoting State v. Wrav. 243 Or.App. 503, 506, 259 P.3d [285 Or.App. 657] 972 (2011)). We state the relevant facts consistently with that standard.

         On June 7, 2013, defendant began calling and sending text messages to the victim. Given the tone of some of those calls and messages, the victim contacted the police. The next morning, the victim answered a call from defendant and told him not to call her anymore. Later that morning, the victim discovered two voicemail messages from defendant that had come through after she had instructed him to stop calling her.

         Defendant was charged by information with one count of harassment (Count 1), ORS 166.065, [1] and two counts of telephonic harassment (Counts 2 and 3), ORS 166.090(1)(b). The telephonic harassment counts were based on the allegation that defendant, "on or about June 8, 2013, *** did unlawfully and intentionally harass and annoy [the victim] by causing the telephone of [the victim] to ring, knowing that said defendant had been forbidden from so doing by [the victim.]"[2] At trial, the state proceeded on the theory that, after the victim told defendant not to call her on the morning of July 8, defendant violated ORS l66.O9O(1)(b) by calling the victim's phone and leaving two voicemails. That is, the state's case ...


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