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State v. Pucket

Court of Appeals of Oregon

May 16, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ALLEN WESLEY PUCKET, Defendant-Appellant.

          Submitted December 6, 2016

          Tillamook County Circuit Court 14CR33065 Rick W. Roll, Senior Judge.

          Andrew S. Mathers fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for second-degree disorderly conduct for recklessly creating a risk of public inconvenience, annoyance, and alarm by making unreasonable noise. He assigns error to the trial court's denial of his motion for judgment of acquittal, contending that the disorderly conduct statute, ORS 166.025(1)(b), violates both Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution as applied to his expressive conduct.

         Held:

         The trial court did not err. Defendant's prosecution was not directed at his speech's content. Further, the state has a legitimate interest in preventing the kind of public inconvenience and annoyance that can be caused by high-volume and prolonged noise even in otherwise busy locations, and defendant did not lack ample alternative opportunities to communicate his message.

         Affirmed.

         [291 Or. 772] HADLOCK, J.

         Defendant appeals from a judgment of conviction for second-degree disorderly conduct for recklessly creating a risk of public inconvenience, annoyance, and alarm by making unreasonable noise. He assigns error to the trial court's denial of his motion for judgment of acquittal, contending that the disorderly conduct statute, ORS 166.025(1)(b), violates both Article I, section 8, of the Oregon Constitution and the First Amendment of the United States Constitution as applied to his expressive conduct.[1] We disagree and, accordingly, affirm.

         In considering a trial court's ruling on a motion for judgment of acquittal, we state the facts in the light most favorable to the state, reviewing "to determine whether a rational trier of fact * * * could have found the essential element of the crime beyond a reasonable doubt." State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005(1995).

         Two days before defendant was arrested, Tillamook Police Sergeant Bomer, along with Officer Greiner, responded to a noise complaint and encountered defendant standing on the sidewalk in front of a Fred Meyer store using an "electrified" bullhorn to preach to passersby. Bomer read the disorderly conduct statute to defendant and explained to him that he could say what he wanted but that he would need to do so without using the bullhorn. Defendant expressed skepticism that the statute applied to his conduct. Bomer ...


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