State v. Johnson

328 Or.App. 340

536 P.3d 1029

STATE of Oregon, Plaintiff-Respondent,

v.Kristofer Michael JOHNSON, Defendant-Appellant.

A175405 (Control), A175406

Court of Appeals of Oregon.

Submitted February 2, 2023

September 27, 2023

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

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

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

SHORR, P. J.

In this consolidated criminal appeal, defendant challenges his convictions for stalking, ORS 163.732, and telephonic harassment, ORS 166.090, and a resulting probation revocation judgment. He raises 10 assignments of error, contending that the trial court erred in denying his motion for judgment of acquittal (MJOA) because his contacts with two individuals were constitutionally protected expressive communications that do not meet the standard established in State v. Rangel , 328 Or. 294, 977 P.2d 379 (1999). He also advances constitutional and evidentiary challenges to his telephonic harassment convictions. As explained below, we conclude that the contacts were not protected expressions under Article I, section 8, of the Oregon Constitution and that the state's evidence was sufficient to satisfy the Rangel standard. We also reject defendant's unpreserved telephonic harassment arguments because they either do not demonstrate that the trial court committed plain error or we do not exercise our discretion to consider them in these circumstances. Accordingly, we affirm.

"We review the denial of an MJOA to determine whether, after viewing the facts and all reasonable inferences in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Murphy , 306 Or App 535, 536, 475 P.3d 100 (2020), rev. den. , 367 Or. 559, 480 P.3d 938 (2021) (internal quotation marks omitted). We describe the facts in accordance with that standard. Id.

Defendant and J were in a relationship for two years. During their relationship, J introduced defendant to her next-door neighbor, M. Defendant and M's brief friendship ended when defendant sent M a text message accusing him of having an affair with J and threatening to take M's prosthetic leg off and beat him with it. After confronting defendant in person, M asked the police to stop defendant from contacting him. Although defendant stopped messaging M for a short time, he eventually resumed messaging and threatened to beat M up. M's wife also saw defendant sitting on his bicycle outside of their home at different times of day.

J and defendant ended their relationship in January 2018, and J tried to sever communication with defendant in September. Although she blocked his phone number, defendant continued to call and email her thousands of times, filling her voicemail box on a nightly basis. Defendant also flew his drone over J's and M's homes to surveil them with it. After defendant accessed J's cell phone and her Facebook accounts without permission and used the information to contact her friends, she reported defendant's conduct to the police. Although a police officer told defendant that he would be subject to arrest if he contacted J, defendant continued to contact her.

A few weeks later, defendant left J a series of messages describing images of J's home that he had seen with his drone. The messages referenced her police interview, accused J and M of getting him thrown in jail, and blamed J for destroying his life. Defendant also said that J "should have to suffer like [he had] suffered for the last three years." After contacting the police again, J secretly moved to a different residence within the town. After she moved, defendant left her messages saying that he was at her (now-former) residence and asking why she did not answer at the door.

On November 27, defendant left J the following voice messages: "[M], you're dead. You just died together. Goodbye," and "Stay away from [M]. [M] is dead. This is to keep you and the kids away from [M]. [M] is dead." On the same date, defendant also left M six voice messages over a 90-minute period that each said M was "dead" or would die. The messages included:

• "Well, you're just going to like to die. You're going to feel that. I would like to know what it feels like when your blood is fucking gushing out of your chest. *** Hey, [M], you're dead. Goodbye. *** You're going to die. Because you wouldn't tell me the truth."

• "Guess what, [M], you die. You're dead. You are gone. You know what, I'm awake now. [M], you're dead. You're gone. You're goodbye. It won't be by me. It doesn't have to be. Watch your back *** You're dead. You're gone. Goodbye."

• "[H]ey [M] how does it feel to be on your wife's—well I guess to be your soon ex-wife phone plan? *** [M], how does it feel to be dead? You're dead."

• "But you're not even going to see it coming. Because the work—the order's been put in. The work had better be done. Not by me because you're a punk. *** In fact this is one of your old boys from Nevada. He's going to do it. Mother fucker. Bye-bye."

M called the police and said that defendant's reference to M's wife's cell phone plan—which he had never discussed with defendant—"disturb[ed] [him] even more."

The state charged defendant with two counts of stalking that were based on the November 27 voice messages to both J and M and six counts of telephonic harassment. Because defendant waived a jury trial, the case was tried to the court. At trial, the state presented evidence of the foregoing facts. Significantly, J also testified that defendant had previously punched her in the face and threw a two-liter bottle of soda through her car window. She also testified that defendant often referenced her children in his messages and had texted her 12-year-old son.

M testified that he was "pissed" after he received the voicemails because defendant had "threatened [his] life" and that it "took a while" for him to calm down. M testified that he had told defendant that he previously lived in Nevada and believed that defendant was capable of carrying out the threats based on their prior dealings. M also testified that he "didn't want some crazy dude coming over to [his] house trying to kill [him]," that he was "more in fear for [his] kids," and that he would do whatever he needed to protect his family.

Defendant moved for judgment of acquittal on all counts, arguing that the evidence was insufficient to prove that M feared for his own safety or that defendant's threats to J were imminent because he did not know where she lived on November 27. The trial court denied the MJOA, concluding that the evidence was sufficient to establish the elements of each offense. Following the bench trial, the court found defendant guilty on all counts and this appeal followed.

In his first four assignments of error, defendant advances a combined argument and contends that the trial court erred in both denying his motions for judgment of acquittal and finding defendant guilty, because the evidence was insufficient to support his convictions for stalking J and M. Defendant was charged with two counts of stalking under ORS 163.732, which provides, in part:

"(1) A person commits the crime of stalking if:

"(a) The person knowingly alarms or coerces another person or a member of that person's immediate family or household by engaging in repeated and unwanted contact with the other person;

"(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and

"(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household."

Alarm means "to cause apprehension or fear resulting from the perception of danger." ORS 163.730(1). As relevant here, "contact" includes "[s]peaking with the other person by any means," and "repeated" means two or more times. ORS 163.730(3)(f), (7).

When contacts are based on expressive communication—such as speech or writing—they "must consist of a threat that convincingly expresses to the addressee the intention that it will be carried out, and that the actor has the ability to do so" in order to comply with Article I, section 8, of the Oregon Constitution.¹ Rangel , 328 Or. at 306, 977 P.2d 379 (emphasis in original). In other words, "a contact involving expression cannot underlie a stalking conviction unless the expressive contact was a threat that ‘instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.’ " S. L. L. v. MacDonald , 267 Or App 628, 630, 340 P.3d 773 (2014) (quoting Rangel , 328 Or. at 303, 977 P.2d 379 ).² However, " ‘hyperbole, rhetorical excesses, and impotent expressions of anger or frustration’ " do not constitute threats under Rangel . Rangel , 328 Or. at 303, 977 P.2d 379 (quoting State v. Moyle , 299 Or. 691, 705, 705 P.2d 740 (1985) ).

We begin with defendant's arguments concerning his conviction for stalking J (Count 3). Defendant argues that the evidence was insufficient to prove that his threats were sufficiently imminent under Rangel because defendant did not know where J lived. The state responds that the evidence was sufficient for a rational juror to determine that the threats were imminent because defendant's threats to kill J were not limited to her home and because defendant's conduct showed that he had the persistence to locate her. We agree with the state.

As discussed above, a threat must cause a fear of "imminent and serious personal violence" to satisfy Rangel . Rangel , 328 Or. at 303, 977 P.2d 379. However, we have explained that an imminent threat...