State v. Sorrell

                                518

       Argued and submitted May 5, 2020, affirmed May 11, 2022


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
            FREDRICK NOLAN SORRELL,
             aka Frederick Sorrell Harmes,
      aka Frederick Nolan Sorrell, nka Rich Harms,
                  Defendant-Appellant.
            Multnomah County Circuit Court
                  17CR42488; A168697
                            

  Benjamin N. Souede, Judge.
   Stacy M. Du Clos, 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.
   Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2022)                                              519

           PER CURIAM
         Defendant appeals from a judgment of conviction for
two counts of second-degree intimidation, ORS 166.155(1)(c)(A)
(2017), amended by Or Laws 2019, ch 553, § 1.1 He entered
a conditional plea of no contest to those two counts after
the trial court denied his demurrer to the indictment, which
charged three counts of second-degree intimidation. On
appeal, defendant reprises his challenge to the indictment,
arguing that ORS 166.155(1)(c)(A) (2017) violates Article I,
section 8, of the Oregon Constitution, because it is an overbroad restriction on protected expression. We recently
addressed the same issue in State v. Smith, 

,

 (2022), and concluded that the statute is not
overbroad. Likewise here, we affirm.
         The two counts in the indictment each alleged that
defendant “intentionally and because of the defendant’s
perception of the race, color, religion, and national origin
of [the victim] subject[ed] [the victim] to alarm by threatening to inflict serious physical injury upon and commit a
felony affecting [the victim].” The charges were based on an
incident in which defendant drove alongside the victims’ car
and yelled through the open driver-side window comments
directed at the victims’ perceived race and religion, including “take the fucking burqa off,” “go back to your own fucking country,” and “terrorist.” The victims slowed down to let
defendant pass, but he slowed his car and kept pace with
theirs, continuing to yell at them and occasionally swerving toward them. Defendant also leaned out his window and
used both hands to mimic shooting a gun at them. The victims called 9-1-1 during the incident.
         After the state charged him, defendant demurred
to the indictment, arguing that it was facially unconstitutional under Article I, section 8. The trial court denied the
demurrer. Defendant then pleaded no contest to two counts
of second-degree intimidation, stipulating that there were

    1
      The legislature amended ORS 166.155 in 2019 to rename the offense of
intimidation to “bias crime” and to add gender identity as a protected class. Or
Laws 2019, ch 553, § 1. That law applies to crimes committed on or after July 15,
2019. Defendant engaged in the conduct underlying his convictions in 2017, and,
thus, we apply the 2017 version of the statute.
520                                             State v. Sorrell

sufficient facts to convict him on those charges beyond a reasonable doubt, and reserving the right to appeal the denial
of his demurrer.
        Defendant now appeals the trial court’s denial of
the demurrer, arguing that ORS 166.155(1)(c)(A) (2017) is
unconstitutionally overbroad under Article I, section 8,
because the range of expression that the law prohibits
includes constitutionally protected expression.
        We start with the statute. ORS 166.155(1)(c)(A) (2017)
provides:
      “(1) A person commits the crime of intimidation in the
   second degree if the person:
      “…
      “(c) Intentionally, because of the person’s perception
   of race, color, religion, sexual orientation, disability or
   national origin of another or of a member of the other’s
   family, subjects the other person to alarm by threatening:
      “(A) To inflict serious physical injury upon or to commit a felony affecting the other person, or a member of the
   person’s family[.]”
         Defendant argues that, because the statute does not
limit its reach to threats that cause a fear of imminent and
serious physical harm, are unequivocal, and are “objectively
likely to be followed by unlawful acts,” the statute is overbroad. He further argues that the statute cannot be saved
through a narrowing construction, because it is missing any
objectivity or imminency element that could permit a constitutional construction.
         We addressed the same arguments that defendant
raises here in Smith, in which the defendant also challenged the constitutionality of ORS 166.155(1)(c)(A) (2017),
under Article I, section 8. As the parties here also agree
is the correct approach, we analyzed the statute under the
second category in State v. Robertson, 

, 

 (1982), because the statute is a law focused on forbidden
effects and the forbidden effects identified in the law “can
be brought about by the use of words, e.g., threats.” Smith,

. Under the second Robertson category,
Cite as 

 (2022)                             521

we must “evaluate the law to determine if it appears to
reach communication privileged by Article I, section 8,
or whether the law can be interpreted to avoid such overbreadth.” 

 (internal quotation marks omitted). To make
that determination, we first examined three Supreme Court
cases that inform that inquiry: State v. Moyle, 

,

 (1985), State v. Rangel, 

, 

 (1999), and State v. Johnson, 

, 

(2008). Using those cases as a guide, we concluded that ORS
166.155(1)(c)(A) (2017) is facially constitutional. Smith, 

.
          We explained that, based on the construction of the
same term in Moyle and Rangel, the term “alarm” in ORS
166.155(1)(c)(A) (2017), “in conjunction with the type of harm
specified in the statute, limits its reach to acts that inflict
a sudden sense of danger, an actual fear of imminent personal violence.” 

. We also concluded that, based on
the intentional mental state in the statute, it reaches “only
unequivocal and unambiguous threats that express to the
victim that the threat will be carried out.” 

 We explained
that the intentional mental state in ORS 166.155(1)(c)(A)
(2017) requires that “the defendant act with the conscious
objective to achieve the particular result of subjecting
another person to alarm, i.e., fear or terror of serious physical injury or the commission of a violent felony.” 

 As a
result, “the law is limited to those threats that are ‘so unambiguous, unequivocal and specific to the addressee that they
convincingly express to the addressee the intention that
they will be caried out.’ ” 

 (quoting Moyle, 

).
         We rejected the defendant’s argument that ORS
166.155(1)(c)(A) (2017) is constitutionally infirm because it
does not require the alarm to be objectively reasonable, an
element that was present in the laws at issue in Moyle and
Rangel. We explained that the inclusion of the intentional
mental state, “in conjunction with the other elements of the
law, limit the law’s reach to constitutionally proscribable
threats.” Id. at 397.
        Our decision in Smith directly resolves the only
error raised by defendant in this appeal. Accordingly, we
conclude that, as construed in Smith, ORS 166.155(1)(c)(A)
522                                         State v. Sorrell

(2017) is not unconstitutionally overbroad under Article I,
section 8, and the trial court did not err in denying defendant’s demurrer.
        Affirmed.