and submitted September 23, 2019
County Circuit Court 17CR56209; W. D. Cramer, Jr., Judge.
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.
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.
Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.
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.
Or.App. 395] SHORR, J.
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.
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.
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]."
defendant was charged with harassment under ORS 166.065(1),
which provides, in part:
"A person commits the crime of harassment if the person
"(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."
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