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State v. Rogers

Court of Appeals of Oregon

December 18, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
TRACY LYNN ROGERS, Defendant-Appellant. 301 Or.App. 393

          Argued and submitted September 23, 2019

          Harney County Circuit Court 17CR56209; W. D. Cramer, Jr., Judge.

          Nora Coon, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Philip Thoennes, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

         Case Summary: Defendant was convicted of harassment, ORS 166.065(1)(c), for writing a Facebook post in which she threatened to kill her supervisor at work. The post, although posted only to defendant's Facebook friends and not viewed by the supervisor on Facebook, was ultimately forwarded to the supervisor by other persons who had taken "screenshots" of the post and forwarded them by text message. The state alleged that, in writing the post, defendant intentionally subjected her supervisor to alarm by conveying an electronic threat to commit a felony involving her supervisor. Defendant assigns error to the trial court's denial of her motion for judgment of acquittal, arguing that the state failed to present sufficient evidence of defendant's intent to convey a threat to her supervisor. Held: The trial court erred when it denied defendant's motion. Because the state failed to present legally sufficient evidence of defendant's intent in writing the Facebook post, the Court of Appeals concluded that no rational faultfinder [301 Or.App. 394] could find that the state proved that defendant intended to subject her supervisor to alarm by conveying a threat to commit a felony involving her supervisor's person.

         [301 Or.App. 395] SHORR, J.

         Defendant appeals from a judgment of conviction for harassment, ORS 166.065(1)(c), assigning error to the trial court's denial of her motion for judgment of acquittal. Because the state failed to present legally sufficient evidence that defendant acted with the requisite intent, we conclude that the court erred in denying defendant's motion. Accordingly, we reverse and remand.

         In reviewing the denial of a motion for judgment of acquittal, "we view the facts and reasonable attendant inferences in the light most favorable to the state." State v. Tilly, 269 Or.App. 665, 667, 346 P.3d 567, rev den, 357 Or. 640 (2015). We state the following facts in accordance with that standard. Defendant worked at a Safeway store, as did K, the assistant store director and defendant's supervisor. On July 30, 2017, defendant posted to her Facebook account, viewable only by her Facebook friends. In the post, she wrote, "That box cutter I'm gonna put to good use tomorrow!!! Watch out [K]!" Thereafter, defendant made statements in "comments" beneath the original post, including "I will cut your throat!!," "I'm gonna kill you!!," "I'm going to prison," and "I will slice her throat [tomorrow]." Defendant referred to K by name once, in the original post, but she referred to K by her first name only.

         That night, "numerous people [who] were concerned about the context of the post" sent K "screenshots" of defendant's Facebook post via text messages. Because K did not have a Facebook account or use social media, she did not observe the posts directly through Facebook. After receiving the screenshots, K called the police. The following morning, Chief Delange of the Hines Police Department learned of the post when screenshots were forwarded to him by a Hines Police Department detective. Delange was "friends" with defendant on Facebook. Because Delange was friends with defendant, he was able to view the post directly through the Facebook application on his cell phone. After viewing the posts, Delange contacted defendant at the Safeway where she and K worked. During Delange's conversation with defendant, she acknowledged that she had written the post, [301 Or.App. 396] but told Delange that, although she was "upset with her boss," she "wouldn't actually kill [K]."

         Ultimately, defendant was charged with harassment under ORS 166.065(1), which provides, in part:

"A person commits the crime of harassment if the person intentionally:
"(c) Subjects another to alarm by conveying a telephonic, electronic or written threat to inflict serious physical injury on that person or to commit a felony involving the person or property of that person or any member of that person's family, which threat reasonably would be expected to cause alarm."

         Defendant elected to be tried by the court. At the close of the state's case in chief, defendant moved for a judgment of acquittal, arguing that the state had presented insufficient evidence that defendant had intentionally conveyed a threat to K. The trial court denied defendant's motion, finding that the state had presented sufficient evidence to support a determination that defendant had conveyed an electronic threat to K, and that defendant did so intentionally. The court explained that "the very nature of something like a social networking website like Facebook is to communicate with a large group of people" and "to communicate back to the object of the communication." According to the court, the statute contemplated indirect forms of communication because "everybody understands that if there's a threat to somebody, they're going to communicate, 'Hey, so and so has made this threat to you."' The court analogized to another indirect form of ...


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