535
Argued and submitted November 16, 2018, affirmed September 16, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
DONALD LEROY MURPHY,
Defendant-Appellant.
Washington County Circuit Court
16CR18995; A164609
475 P3d 100
A jury convicted defendant of harassment, ORS 166.065, for leaving two
threatening voicemails for a Hillsboro Police Department evidence technician.
On appeal, defendant challenges the trial court’s denial of his motion for a judgment of acquittal (MJOA), arguing that: (1) the state did not meet its burden
of adducing evidence that the victim reasonably believed that defendant would
imminently carry out his threats; and (2) notwithstanding imminence, the state
failed to produce evidence that it was objectively reasonable for the victim to
believe that defendant would carry out his threats because they were so implausible. Held: Defendant failed to preserve his imminence argument, and the trial
court did not err in denying the MJOA. The circumstances, nature, and context of
defendant’s voicemails are sufficient such that a jury could find that the victim’s
alarm was reasonable, notwithstanding whether defendant could actually carry
out his specific threats. Although one aspect of the threat may not be feasible
under the circumstances, a reasonable person could still find that the threats in
this case were likely to be followed by action.
Affirmed.
Eric Butterfield, Judge.
Sarah Laidlaw, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
POWERS, J.
Affirmed.
______________
* Egan, C. J., vice Garrett, J. pro tempore.
536 State v. Murphy
POWERS, J.
A jury convicted defendant of harassment, ORS
166.065, for leaving two threatening voicemails for S, a
Hillsboro Police Department evidence technician. On appeal,
defendant raises three assignments of error, two of which
we reject without discussion. We write to address defendant’s challenge to the trial court’s denial of his motion for a
judgment of acquittal (MJOA). Defendant submits two reasons why the trial court erred: (1) the state did not meet
its burden of adducing evidence that S reasonably believed
that defendant would imminently carry out his threats; and
(2) notwithstanding imminence, the state failed to produce
evidence that it was objectively reasonable for S to believe
that defendant would carry out his threats because they
were so implausible. As to the first argument, the state
asserts that defendant did not preserve that argument for
appeal, and that, therefore, we should not evaluate it on the
merits. As to the second argument, the state contends that
it adduced sufficient evidence to withstand an MJOA on the
objectively reasonable fear of harm. As explained below, we
conclude that defendant failed to preserve his first argument
and that the trial court did not err in denying the MJOA.
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. Colpo, 305 Or App 690,
691,
472 P3d 277 (2020). We state the facts in accordance
with that standard.
The Hillsboro Police Department had several items
of defendant’s personal property in its possession including
a backpack and a laptop bag with a laptop in it. Defendant
was issued a property receipt that explained that he had
90 days to pick up his property or it would be destroyed. After
the 90-day deadline, the police department destroyed the
backpack but did not destroy the bag containing the laptop.1
Defendant went to pick up his property, and when he was
1
The Hillsboro Police Department’s protocol for disposing of computers
requires that they be sorted separately from other personal property.
Cite as 306 Or App 535 (2020) 537
informed that some of his items had already been destroyed,
he became “heated” and “agitated.” He began yelling at S,
who did not leave her secure workstation and had an officer
escort defendant off the property. S testified at trial that she
had “reason to believe that [defendant] might have access to
a gun” because she “had received information that he had
had weapons,” and that “[i]t was part of his history,” but she
was unsure of the specifics that gave defendant access to
those weapons.
Defendant, later that same day, left two “rambling”
voicemails for S. In the first voicemail, defendant claimed
that the “Hell’s Angels are running the Washington County
Jail[.]” Also in the first voicemail, defendant told S that
“until you find that Nike backpack and give it to me—and
you will give it to me[—]I will bring Army officers in there
with heavy machine gun weaponry to bring it back to me,
understand, like an M[-]16 machine gun.”
Later that evening, defendant left another voicemail. He said that he was going to go to Fort Lewis and
bring back army officers “armed with M-16 rifles.” He also
said that S had been “sentenced to death. ’Cause we’re going
to come in there and shoot you, okay? To kill you, okay?
We’re not playing games.” He elaborated by saying that, “if
I have to come in there with Army officers and shoot you at
gunpoint wearing camouflage uniforms, then I’m going to
do it, okay?” He even suggested that S was involved in “rape
porn.” After more rambling, defendant said “I’m saying that
we’re going to shoot you and if you want that to end right
fucking now or be apprehended by United States Military
Personnel, then I will come after you,” noting that he can
“legally” shoot S. Eventually, defendant concluded the call
by saying: “All right, then. … I will expect a phone call
from you. If I don’t hear from you within a week, I’m going
to Fort Lewis, got that? Seven days.”
Defendant was charged with harassment, ORS
166.065.2 That statute provides, in part:
2
ORS 166.065 has been amended several times since defendant’s conduct;
however, the subsections under which defendant was charged have not been
amended. Because the amendments have no bearing on our analysis, we refer to
the current version of the statute in this opinion.
538 State v. Murphy
“(1) 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 …, which threat reasonably would be expected to cause alarm.
“…
“(4) … [H]arrassment is a Class A misdemeanor if a
person violates:
“…
“(b) Subsection (1)(c) of this section and:
“…
“(D)(i) The person conveyed a threat to kill the other
person …;
“(ii) The person expressed intent to carry out the
threat; and
“(iii) A reasonable person would believe that the threat
was likely to be followed by action.”
At the close of the state’s case-in-chief, defendant
argued that the state had failed to prove that the belief that
defendant would carry out his threats was reasonable. In
support of his MJOA, defendant argued that the state had
failed to meet its burden:
“Specifically, that a reasonable person would believe
that the threat was likely to be followed by action. … We
know the content of the calls. Frankly, everything was so
ridiculous in those calls.
“A reasonable person would not believe that [defendant]
was capable of going up to Fort Lewis and getting these
machine guns and coming back down with a bunch of Army
rangers and doing these things.
“I would say that the … State has failed to meet [its]
burden just based on the fact that these are such unbelievable statements that a reasonable person would not believe
the person most likely to be actually be able to do that.”
Cite as 306 Or App 535 (2020) 539
That was the entirety of defendant’s argument; and the trial
court denied the motion without explanation. A jury found
defendant guilty, and defendant initiated this appeal.
On appeal, defendant now asserts, among other
arguments, that a necessary element of harassment is that
“a person in [S]’s position would have reasonably believed
that defendant would imminently carry out the threat.” The
state responds that that argument is unpreserved because
it is “qualitatively different than the one presented to the
trial court.” As explained below, we agree that defendant did
not preserve the specific argument that he now advances on
appeal.
As a general matter, for us to address an argument
on appeal, the adversely affected party must have preserved
the claim of error before the trial court. ORAP 5.45(1); see
generally Ailes v. Portland Meadows, Inc., 312 Or 376, 380,
823 P2d 956 (1991). That rule undergirds the concept that
parties should not be blindsided on appeal and that trial
courts should have the opportunity to address and correct
the error in the first instance. State v. Vanorum,
354 Or 614,
632,
317 P3d 889 (2013); see also State v. Smith,
184 Or App
118, 121,
55 P3d 553 (2002) (noting that fairness and efficiency are among the underlying purposes of preservation).
“As a rule, an objection as to the legal insufficiency of evidence to prove a claim on one theory does not have the effect
of preserving all other possible theories of insufficiency;
rather, parties must explain to the court and opposing party
a specific reason for the asserted legal insufficiency.” State v.
K. J. B.,
362 Or 777, 791,
416 P3d 291 (2018); see also State
v. Taylor,
198 Or App 460, 469,
108 P3d 682, rev den,
339
Or 66 (2005) (“[T]he appealing party’s statements before the
trial court must have alerted the trial judge and opposing
counsel to the substance of the position that is advanced on
appeal.”).
Here, the trial court and opposing counsel were not
alerted to the argument that S had to have an objectively
reasonable fear that defendant would carry out his threats
imminently. As noted above, defendant’s argument to the
trial court challenged only the believability of the threats.
Indeed, defendant stated that a reasonable person would
540 State v. Murphy
not believe that defendant had the capability to carry out
his threats and that the statements were too “ridiculous”
to be believed. Importantly, defendant never mentioned the
idea that the threat had to be imminent, depriving the trial
court and the state an opportunity to address the claimed
error. See Vanorum, 354 Or at 632 (noting that preservation rules afford the trial court and opposing counsel an
opportunity to address the error in the first instance).
Accordingly, because defendant failed to preserve the argument for appellate review, and he does not ask for plainerror review, we do not address defendant’s imminence
argument.
Defendant also renews on appeal his argument that
the state failed to adduce evidence that it was objectively
reasonable for S to believe that defendant would carry out
his threats. Specifically, defendant argues that it is “objectively unbelievable” that defendant would “travel to Fort
Lewis as an Army Colonel and bring back Army officers with
their M[-]16 rifles to shoot” S. The state counters that “a reasonable person would believe that the threat was likely to
be followed by action of some sort, notwithstanding the fact
that the particular method of killing the victim—recruiting
soldiers—was not feasible.” (Emphasis omitted.) For the reasons explained below, we agree with the state’s position.
As a general matter, to prove the crime of harassment, the state was required to prove that: (1) defendant
intended to subject S to harassment, annoyance, or alarm;
(2) defendant conveyed the threat; (3) S was actually alarmed
by the threat; and (4) S’s alarm was objectively reasonable.
See State v. Rogers, 301 Or App 393, 397-98,
457 P3d 363
(2019) (citing State v. Moyle,
299 Or 691, 698,
705 P2d 740
(1985), and describing elements of former ORS 166.065(1)(c)
(2017)3). Here, the thrust of the dispute centers around the
fourth element: the reasonableness of S’s alarm. See Moyle,
299 Or at 699 (“[S]uch alarm must be reasonable in the
circumstances.”).
3
After the Supreme Court decided Moyle, the legislature added to ORS
166.065 the provision at issue in this case: that a “reasonable person would
believe that the threat was likely to be followed by action.” Or Laws 2009, ch 783,
§ 1. Defendant does not challenge the constitutionality of that change or argue
that it is incompatible with Moyle.
Cite as 306 Or App 535 (2020) 541
In Moyle, the Supreme Court addressed a challenge
to the harassment statute under Article I, section 8, of the
Oregon Constitution.4 The court noted that the harassment
statute, as it then existed,
“requires neither proof of a specific intent to carry out the
threat nor of any present ability to do so. However, the
elements—actual alarm and the reasonableness of the
alarm under the circumstances—have a similar purpose
and effect. These elements limit the reach of the statute to
threats which are so unambiguous, unequivocal and specific to the addressee that they convincingly express to the
addressee the intention that they will be carried out.”
Id. at 703. The Moyle court also noted that threats that fall
under the harassment statute do not include
“the kind of hyperbole, rhetorical excesses, and impotent
expressions of anger or frustration that in some contexts
can be privileged even if they alarm the addressee.”
Id. at 705.
The Supreme Court later examined Moyle in State
v. Rangel, 328 Or 294,
977 P2d 379 (1999). At issue in Rangel
was the constitutionality of Oregon’s criminal stalking statute.
328 Or at 297-98. Although the stalking statute (as well
as the harassment statute in Moyle) proscribed speech-based
contacts, the court explained that a narrowing construction would preserve the statute from an overbreadth challenge under Article I, section 8, of the Oregon Constitution.
Id. at 306. The court in Rangel explained that, “[a]ccording to Moyle, a proscribable threat is a communication
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.”5
Id. at 303. In making that assessment, we view the contacts
under the totality of the circumstances. See, e.g., D. W. C. v.
4
Article I, section 8, of the Oregon Constitution provides: “No law shall
be passed restraining the free expression of opinion, or restricting the right to
speak, write, or print freely on any subject whatever; but every person shall be
responsible for the abuse of this right.”
5
Although Rangel clarified a portion of Moyle’s holding by adding a “fear
of imminent violence” to the definition of a threat, we need not address that
change today because defendant did not preserve any challenge to the imminence
requirement.
542 State v. Murphy
Carter, 261 Or App 133, 141,
323 P3d 348 (2014) (explaining that, in the context of a stalking protective order, “it
is often necessary to view contacts in context in order to
determine whether they give rise to objectively reasonable alarm”); Pinkham v. Brubaker,
178 Or App 360, 372,
37 P3d 186 (2001) (“As we have emphasized in other cases,
unwanted contacts must be considered in the context of
the parties’ entire history. So viewed, contacts that might
appear innocuous when viewed in isolation often take on a
different character.”) (Internal quotation marks and citation
omitted.).
Here, the circumstances, nature, and context of
defendant’s voicemails provide sufficient evidence for a reasonable factfinder to conclude that S’s alarm was objectively
reasonable under that standard. First, S knew of defendant’s
history with weapons. Second, the circumstances of defendant’s threats—that is, his escalating reaction to learning
that he was unable to retrieve his property—provides context to assess whether S’s alarm was reasonable. Before
defendant left the voicemails, S had an in-person interaction with defendant where he became agitated and angry,
and began yelling at S. His behavior was so unsettling to
her that he had to be forcibly removed from the building.
That encounter provides important context for voicemails
that defendant left for S later that day.
The nature of the voicemails also provides a basis
to infer the objective reasonableness of S’s alarm. Defendant
makes much of the “rambling” nature of defendant’s voicemails, noting that they are “imaginative” and “incoherent.” We understand that argument to be that, because the
threats were so incoherent, it was not objectively reasonable for S to be alarmed at the multiple threats on her life
made in the voicemails the same day as her encounter with
defendant. To be sure, portions of defendant’s threats could
be viewed as having an imaginative or unrealistic quality.
That conclusion, however, does not necessarily mean that
S’s alarm based on the threats to her life was objectively
unreasonable. Defendant’s threats, when viewed in context,
allow a reasonable trier of fact to conclude that S’s alarm
was objectively reasonable.
Cite as 306 Or App 535 (2020) 543
Importantly, the statute at issue in this case does
not require that the victim’s alarm manifest directly from
the literal statements made in any given threat. It is sufficient that the threats create an unequivocal fear of imminent and serious personal violence from the speaker that
is objectively likely to be followed by unlawful acts. Thus,
although aspects of defendant’s threats may not have been
feasible under the circumstances, a reasonable person could
still anticipate that his threats in this case were likely to
be followed by action. That is, the objective reasonableness
of S’s alarm is not measured based only on whether it is
reasonable to infer that defendant would actually go to Fort
Lewis and acquire firearms or other individuals to kill S.
As the state points out, in response to a very specific and
rapidly escalating conflict, defendant made repeated threats
to shoot S or have her shot. Those threats, viewed in the
context of defendant’s encounter with S, are sufficient for a
factfinder to conclude that S’s alarm that defendant would
act on his threats was objectively reasonable. Therefore, the
trial court did not err in denying defendant’s MJOA.
Affirmed.
