State ex rel. Juvenile Department v. Dompeling , 171 Or. App. 692 ( 2000 )

KISTLER, J.

The trial court found that youth was within its jurisdiction because she committed acts that would constitute the crime of menacing if she were an adult. On appeal, youth argues that the evidence does not establish that she intended to put her mother in fear of imminent injury. We review de novo and affirm.

Youth lived with her mother. One evening, youth got “very upset” because her mother had unplugged the telephone to keep youth from using it. When asked what occurred that evening, mother testified:

“Well, she came into the bathroom and said that she wanted to use the phone. And when I said no, she got more angry, and more angry, and she finally just came in and said, ‘I wish you were dead, I um, I could stab you right now.’ And then she came back a minute later, and said, ‘I thought about doing it while you were in your sleep.’ ”

Mother explained the reason for youth’s threats:

“I’ve always let [youth] get her way, [but] I’ve c[o]me down real hard on [youth] in the last few months, because she’s totally out of control and she’s not used to it and when she doesn’t get her way, she blows. And she’s very violent, very angry, she slams, she bangs and she, I did not give in, and she was very, very angry with me.”

Based on this evidence, the trial court found that youth had committed acts that would constitute menacing if she were an adult; that is, the trial court found that “by word or conduct [youth] intentionally attempted] to place [mother] in fear of imminent serious physical injury.” ORS 163.190 (defining the crime of menacing).¹

On appeal, youth “readily admits that stabbing is a serious physical injury, and her intentions can be inferred”; that is, youth does not dispute that we can infer that she intentionally attempted to place her mother in fear of serious physical injury.² The only question, according to youth, is “whether her words carried a threat of ‘imminent’ injury.” Youth reasons that she did not threaten to stab her mother immediately. Rather, youth argues that she only “threatened to get a weapon and return, some hours later, and attack her mother after the mother had gone to bed.” Youth concludes that because “the threatened harm was not imminent,” the state failed to prove its case.

Youth’s argument turns on what the statutory term “imminent” means. We look initially to the common understanding of the word. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Imminent is defined as:

“ready to take place: near at hand: impending < our - departure»; usu : hanging threateningly over one’s head: menacingly near < in - jeopardy» <this - danger».”

Webster’s Third New Int’l Dictionary, 1130 (unabridged ed 1993) (capitalization omitted). Understood in its usual sense, the word does not require that the state prove a threat of immediate injury. It is sufficient if the threatened injury is “near at hand,” “impending,” or “menacingly near.” Nothing in the remainder of the statute suggests that the word is not used in its usual sense, and youth does not argue that the constitution requires a more restrictive interpretation. See State v. Garcias, 296 Or 688, 698, 679 P2d 1354 (1984).

Applying the statutory definition, we find that youth attempted to put her mother in fear of imminent serious physical injury. Youth made two statements to her mother. She stated initially, “I could stab you right now.” Youth does not dispute that she intended to place her mother in fear of serious physical harm, and her use of the words “right now” makes the threatened injury imminent. The fact that youth did not have a knife in her hand when she made that statement does not cause us to reach a different conclusion. Youth’s second statement also threatened imminent injury. It was approximately eight o’clock in the evening when youth told her mother that she could stab her in her sleep. The threat of being stabbed within the next few hours is sufficiently near at hand to be imminent. The trial court correctly held that youth attempted to put her mother in fear of imminent serious physical injury.³

Affirmed.

1 The dissent “takeM issue with lourl statement of facts.” 171 Or App at 696. It reasons that, in quoting mother’s testimony, we have “ignore!dl the fact that there is no evidence that youth had ever assaulted or harmed mother or that she had a reputation or character of acting violently toward people.” Id. As the dissent implicitly acknowledges, the record does not disclose one way or the other whether youth had been violent towards mother or anyone else in the past. The dissent thus appears to take the position that the absence of evidence in the record somehow contradicts mother’s testimony that when youth does not get her way, “she’s very violent, very angry, she slams, she bangs.” It may be that the dissent believes that additional evidence of youth’s violent behavior would be persuasive, but mother’s testimony is uncontradicted.

2 We accept youth’s concession. Stabbing is a serious physical injury. We also agree, on de novo review, that youth intended to put her mother in fear of being stabbed. Mother’s testimony that youth was “very, very angry” and that she would become “very violent, very angry” and slam things convinces us that youth’s words were in fact intended to put mother in fear that youth would carry out her threats.

3 The dissent would reverse the trial court on the basis of issues that youth has not raised. The dissent reasons that the statute cannot constitutionally be applied to youth’s statements. 171 Or App at 699-700, 701-02. The Oregon Supreme Court has already held that the menacing statute is facially constitutional. See State v. Garcias, 296 Or at 697 & n 8. Youth, at most, is left with an as-applied challenge, but youth has not asked us to hold that the statute is unconstitutional as applied to her. Indeed, she has raised no constitutional challenge on appeal. The issue that the dissent would reach is not properly before us. See State v. Wyatt, 331 Or 335, 15 P3d 22 (2000); Garcias, 296 Or at 698 n 9.

Building on its constitutional analysis, the dissent reasons that youth’s statements were not threats. 171 Or App at 696 (Armstrong, J., dissenting passim). It is worth noting that the statute does not prohibit threats as such, although evidence of threatened injury may be relevant to proving that a person has “attempted to place another person in fear of imminent serious physical injury.” See ORS 163.190. In any event, youth has not argued on appeal that her statements were not threats nor has she argued that they were not intended to put her mother in fear of serious physical harm. Finally, the dissent’s conclusion that youth’s statements were not threats “cannot be separated,” to use the dissent’s words, from its constitutional analysis. 171 Or App at 698. We imply no agreement with the dissent’s reasoning when we say that the constitutional issue upon which the dissent’s conclusion depends is not properly before us.