State v. Severson ( 2023 )

550 April 26, 2023 No. 217
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ELISHA DAWN SEVERSON,
Defendant-Appellant.
Marion County Circuit Court
20CR12073; A175640
Deanne L. Darling, Senior Judge.
Argued and submitted December 7, 2022.
Brett J. Allin, 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.
Jeff J. Payne, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
Cite as 325 Or App 550(2023) 551
MOONEY, J.
Defendant appeals her convictions imposed by judg-
ment after a jury trial for unlawful use of a weapon (UUW)
(Count 1) and menacing (Count 2). ORS 166.220;1 ORS
163.190.2 She assigns error to the trial court’s denial of her
motions for judgment of acquittal as to both counts, arguing
that the state presented insufficient evidence to prove either
charge. We conclude that the evidence was legally sufficient
to support the trial court’s denial. We affirm.
We review the denial of a motion for a judgment of
acquittal (MJOA) to determine “whether, viewing the evi-
dence 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. Cervantes, 319 Or 121,
125, 873 P2d 316 (1994), abrogated on other grounds by State
v. Mills, 354 Or 350, 312 P3d 515 (2013). We give the state the
benefit of reasonable inferences which “need not inevitably
follow from the established facts; rather, if the established
facts support multiple reasonable inferences, the jury may
decide which inference to draw.” State v. Miller, 196 Or App
354, 358, 103 P3d 112 (2004), rev den, 338 Or 488 (2005).
Defendant moved into A’s house with her four-year-
old son while she and A were involved in a romantic relation-
ship. That relationship ended and the events underlying the
criminal charges against defendant occurred one evening
as she was in the process of moving out of A’s home. While
speaking in the garage that evening, defendant accused A
of molesting her son and spraying him with bug spray. A
denied the allegations, and defendant became angry. A left
the garage to go to his bedroom. Defendant followed A into
his room to question him further, after which she went to
1
ORS 166.220 states, in part:
“(1) A person commits the crime of unlawful use of a weapon if the
person:
“(a) Attempts to use unlawfully against another, or carries or possesses
with intent to use unlawfully against another, any dangerous or deadly
weapon as defined in ORS 161.015.”
2
ORS 163.190(1) states:
“A person commits the crime of menacing if by word or conduct the person
intentionally attempts to place another person in fear of imminent serous
physical injury.”
552 State v. Severson
the front door of the house, opened it, and yelled that the
neighbors “live next door to molesters.” A neighbor reported
the disturbance to the police, who responded at 8:16 p.m.
and spoke with A, who climbed out through his bedroom
window to speak with them. The responding officer left
without making an arrest.
A reentered the house and defendant, still upset,
threatened to hurt A and his dog. A returned to his bed-
room with his dog and locked the door. A then heard bang-
ing noises coming from the kitchen, and he started an audio
recording on his phone. Defendant was speaking with her
son, assuring him that no one would hurt him and talking
to him about “Thor.”3 Based on defendant’s references to
Thor as reflected in the following exchange with her son,
A thought that the banging noises were from a hammer
and that defendant was threatening to harm him with the
hammer:
“[DEFENDANT]: * * * they won’t see the light of day, I
can promise that this time.
“[DEFENDANT’S SON]: Yeah.
“[DEFENDANT]: Physical violence is the only option
now—
“[DEFENDANT’S SON]: And you’re going to fucking
pay.
“[DEFENDANT]: Yeah, they’re going to fucking pay.
Be the last time they come near one of mine.
“* * * * *
“[DEFENDANT]: Okay. Like Thor.
“[DEFENDANT’S SON]: Yep—
“[DEFENDANT]: When I call for it, you bring it to me.
“[DEFENDANT’S SON]: Yep.
“[DEFENDANT]: But nobody’s going to do anything,
they’re a bunch of fucking pussies, that’s what [A and his
family] do best is some pussies.
3
“Thor: the Norse god of thunder, weather, and crops.” Webster’s Collegiate
Dictionary 1301 (11th ed 2003). We understand defendant’s and her son’s ref-
erences to Thor to be to the popularized, hammer-wielding superhero in The
Avengers (Marvel Studios 2012).
Cite as 325 Or App 550(2023) 553
“* * * * *
“[DEFENDANT’S SON]: And [A] doesn’t care about
anything.
“[DEFENDANT]: No.
“[DEFENDANT’S SON]: And his friends, he doesn’t
care about anything.
“[DEFENDANT]: Nope.
“[DEFENDANT’S SON]: Himself. But we’ll beat his
ass (unintelligible)—
“[DEFENDANT]: Yep, and I’m going to use it. I’m
going to use it, show him that mama’s bite is just as big as
my fucking bark * * *.
“* * * * *
“[DEFENDANT]: —because it’s going to be that calm,
it’s going to be that calm before the storm and I’m just
going to reach out and bludgeon them right in the fuck-
ing head when their eyes are closed, huh? Because that’s
how mama works, she’s good at being sneaking in the dark,
rather than fucking everybody else—
“* * * * *
“[DEFENDANT’S SON]: And nobody even cares about
me.
“[DEFENDANT]: Don’t, not my shelf, no, you can
hit anything else, but don’t hit our stuff, we don’t want to
break our stuff. You can break anything else. The house,
whatever.”
A called 9-1-1 and reported that defendant was hit-
ting his house with a hammer and threatening him with it.
The police returned and arrested defendant. There was no
damage done to the house itself, but the officers and A did
find a “relatively large cast-metal meat tenderizer” within
a few feet of A’s bedroom door near a garbage can that had
been damaged. A never saw defendant with the meat ten-
derizer, but he stated that he had not left it near his bed-
room door.
Defendant first assigns error to the trial court’s
denial of her MJOA as to the UUW charge because the
554 State v. Severson
state failed to prove that defendant intended to either use
a weapon to inflict injury or to threaten immediate harm or
injury. ORS 166.220 provides, in part, that:
“(1) A person commits the crime of unlawful use of a
weapon if the person:
“(a) Attempts to use unlawfully against another, or
carries or possesses with intent to use unlawfully against
another, any dangerous or deadly weapon as defined in
ORS 161.015.”
“Use” for purposes of the UUW statute includes the “employ-
ment of a weapon to threaten immediate harm or injury.”
State v. Ziska/Garza, 355 Or 799, 811, 334 P3d 964 (2014).
“ ‘Possess’ means to have physical possession or otherwise to
exercise dominion or control over property,” which includes
constructive possession. ORS 161.015(9). Under its “posses-
sion theory” of UUW, the state had to prove, beyond a rea-
sonable doubt, that defendant “possessed the [weapon] with
the intent either (1) to employ the [weapon] to inflict harm or
injury or (2) to employ the [weapon] to threaten immediate
harm or injury.” State v. McAuliffe, 276 Or App 259, 265, 366
P3d 1206, rev den, 359 Or 847 (2016).
Defendant argues that the state failed to present
evidence to allow a nonspeculative inference that defendant
intended to use the meat tenderizer to injure A or to threaten
him with immediate injury. That is so, according to defen-
dant, because there was no evidence presented that she per-
sonally possessed the tenderizer or attempted to get into the
same room as A, and because her statements about physical
force were “hyperbolic.” Defendant concedes that the state
presented “at least some evidence to allow a rational infer-
ence” that she constructively possessed the meat tenderizer
when the state offered the recorded conversation in which
she directed her son: “When I call for it, you bring it to me.”
She contends, though, that despite her constructive posses-
sion of the meat tenderizer, the state offered no evidence
that she had any intent to use it against A. She argues that
she took no steps to enter the same room as A or to other-
wise place him in the “zone of danger.” According to defen-
dant, unless some modicum of speculation is employed, the
evidence would permit an inference of nothing more than
mere “bluster” on her part.
Cite as 325 Or App 550(2023) 555
We do not agree with defendant’s assessment of the
evidence. When viewed in the light most favorable to the
state, as required by our standard of review, a reasonable
jury could conclude that defendant had constructive posses-
sion of the meat tenderizer through her son and that she
was exercising dominion and control over it when she made
these statements to her son within earshot of A:
• “[T]hey won’t see the light of day, I can promise that
this time.”
• “Physical violence is the only option now.”
• “[T]hey’re going to fucking pay.”
• “[O]ur bite is just as big as our bark.”
• “I’m going to use it, show him that mama’s bite is just
as big as my fucking bark.”
• “I’m just going to reach out and bludgeon them right
in the fucking head when their eyes are closed, huh?
Because that’s how mama works, she’s good at being
sneaking in the dark, rather than fucking everybody
else.”
Understood in the context of defendant’s references to “Thor,”
which A understood to be references to a hammer, the bang-
ing noises that A heard while defendant made those state-
ments, and defendant’s direction to her son to bring it to her
when she calls for it, a reasonable jury could conclude that
defendant had the necessary intent.
We have previously reviewed the denial of MJOAs
on the issue of intent in the context of menacing and UUW
convictions. On the question of intent for UUW, there are two
cases that are particularly helpful to us here. In McAuliffe,
we affirmed a UUW conviction where the evidence was that
the defendant had repeatedly called 9-1-1 about a plane fly-
ing low over his property, told the dispatcher that he was sit-
ting with a shotgun, admitted that he had serious thoughts
about shooting at the plane, and held up a shotgun shell to
the pilot as he flew by. 276 Or App at 260-61. That there
was also evidence that the defendant did not fire or aim the
shotgun at the plane did not change our determination that
the record was sufficient to support the requisite intent for
UUW. Id. at 266.
556 State v. Severson
In State v. Garibay, 307 Or App 722, 732, 478 P3d
1006 (2020), which arose from a gang-related shooting, we
concluded that the trial court erred when it denied an MJOA
on one of the UUW counts, and we reversed that conviction.
The evidence produced by the state in that case was that the
defendant had gotten out of his truck with a gun during a
fight between gang members and shot M in the foot. Garibay,
307 Or App at 725. We concluded that there was insufficient
evidence “to allow a reasonable inference that he [ ] intended
to use the gun against F[,]” and we reversed. Id. at 730. The
state failed to “prove that [the] defendant intended to use
a dangerous or deadly weapon to * * * threaten immediate
harm or injury to the specified victim.” Id. at 732. We distin-
guished Garibay from McAuliffe, because in McAuliffe
“the only person who the defendant could have intended to
use the shotgun against was the pilot, and the evidence—
including what the defendant said to the airport operations
manager, the 9-1-1 dispatcher, and the police officers—was
sufficient to allow an inference that he intended to use it,
either to harm the pilot or to threaten him.”
Id. at 730.
This case is more like McAuliffe than Garibay.
Defendant made repeated threatening statements directed
at A that were paired with references to a hammer and
banging noises. A meat tenderizer and damaged garbage
can were found near A’s bedroom door. A reasonable fact-
finder could infer from defendant’s behavior and statements
that she intended to threaten A with the meat tenderizer.
That a jury might reasonably have reached a different con-
clusion is beside the point. On appeal, “our task is not to
weigh the evidence, it is only to determine whether there
was legally sufficient evidence to support the challenged
conviction.” McAuliffe, 276 Or App at 266. The evidence here
was legally sufficient to support the UUW conviction.
Defendant also assigns error to the trial court’s
denial of her MJOA as to the menacing count. She argues
essentially that the state’s evidence establishes nothing
more than that she made a series of “empty threats,” and
“empty threats to inflict serious injury” are not sanctionable
as menacing. State v. C. S., 275 Or App 126, 130, 365 P3d
Cite as 325 Or App 550(2023) 557
535 (2015). “A person commits the crime of menacing if by
word or conduct the person intentionally attempts to place
another person in fear of imminent serious physical injury,”
and “the threatened harm must be imminent and serious.”
ORS 163.190(1); State v. Garcias, 296 Or 688, 699, 679 P2d
1354 (1984). “[T]he menacing statute does not reach commu-
nications protected either by the constitution or by common
law privileges,” rather, speech only constitutes menacing
when “the threatened injury is ‘near at hand,’ ‘impending,’
or ‘menacingly near.’ ” Garcias, 296 Or at 700; State ex rel
Juv. Dept. v. Dompeling, 171 Or App 692, 695-96, 17 P3d 535
(2000).
Three cases are particularly helpful to the ques-
tion of whether verbal threats or expressive conduct meet
the imminency requirement for menacing. In C. S., a juve-
nile delinquency case, we agreed that threats made by
the accused youth against other students did not qualify
as imminent, and we reversed jurisdiction. 275 Or App at
128. The youth had told classmates they were “ ‘going to
die’ ” and that he would kill them, he made a list of their
names and described how they would die, and he “would
draw his finger across his throat as he walked past them in
the hallways.” Id. at 128-29. We concluded that the youth’s
threats lacked imminence because, although they created
fear of future harm, there was nothing in the youth’s state-
ments or expressions to imply that the harm was imminent.
Id. at 133-34.
In Dompeling, another delinquency case, we
affirmed jurisdiction where there was evidence that the
accused youth, while upset with her mother, told her, “I could
stab you right now,” and “I thought about doing it while you
were in your sleep.” 171 Or App at 694. Use of the phrase
“right now” added a temporal connection and, given that it
was 8:00 p.m. when the youth threatened to stab her mother
“in her sleep,” the threats were “sufficiently near at hand to
be imminent.” Id. at 696.
Finally, we turn to our recent opinion in State v.
Hejazi, 323 Or App 752, 524 P3d 534 (2023). The defendant
in Hejazi had three encounters with R, a defense attorney,
at the Eugene Municipal Court. Id. at 755. In the first, the
558 State v. Severson
defendant asked R if he would speak with him about his
case. Id. R did not know the defendant, but he agreed to
speak with him after he finished speaking with his clients.
Id. The defendant told R that he was “going to skin [him]
alive.” Id. A week later, the defendant crossed the street
toward R near the courthouse, but when R ignored him, the
defendant told him “I could hit you right now” and then said,
“I’m going to kill you and your family.” Id. at 755-56. Finally,
inside the courthouse a few hours later, R saw the defendant
come into the courtroom and point at him before leaving.
Id. We determined, after comparing the facts of that case to
both C. S. and Dompeling, that the record was insufficient
to prove imminency. Id. at 758. The threats by the defen-
dant in Hejazi lacked any specific temporal indication, and
the “defendant’s physical actions did not create a situation
supporting an inference that the serious harm was immi-
nent” because the defendant walked quickly away from R
following his threat. Id. Also, when the defendant told R he
could hit him “right now,” it was before he threatened to kill
him, and was “not a threat of serious personal violence” as
in Dompeling, but was instead more like the threats made
by the youth in C. S. Id.
This case is most like Dompeling. Defendant’s state-
ments came on the heels of the conversation in which she
directly accused A of molesting her son and then shouted
that same accusation out the front door to the point that
a neighbor called the police. She spoke within earshot of
A’s room where she had just left him. Defendant said that
physical violence was her only option, that she would use
it, and that she would show him that her bite was as big as
her bark. She directed her son to bring the meat tenderizer
to her when she asked for it. All the while, A could hear a
loud banging that sounded like a hammer. Defendant said
that it would be the last time A would get near one of hers
and that she would “reach out and bludgeon” him when his
eyes were closed, because that is how she works best—in the
dark. A reasonable factfinder could infer from that evidence
that defendant was intentionally trying to place A in fear
of imminent serious physical injury. Her words amounted
to threats of imminent harm. Defendant’s reference to
bludgeoning A when his eyes were closed was made in the
Cite as 325 Or App 550(2023) 559
evening sometime between 8:16 p.m., when the police first
responded, and 9:00 p.m., when the police returned. That
added the necessary temporal component from which a jury
could infer that defendant intended to do so that night when
A went to sleep. As in Dompeling, we conclude that a threat
made in the evening about violence that will occur when
the person being threatened is asleep is “sufficiently near at
hand to be imminent.” 171 Or App at 696.
Defendant further argues that her conduct did not
make her threats imminent, because she was on the other
side of a locked door, and she did not attempt to open it.
But this case is not like Hejazi, where we concluded that the
defendant’s physical behavior did not support “an inference
that the serious harm was imminent” because the defendant
walked quickly away from R after making the threat. 323
Or App at 758. Here, defendant did not threaten a virtual
stranger on a public street followed by immediate retreat.
She threatened A in his home, within feet of his bedroom,
while directing her son to bang the meat tenderizer, imme-
diately after accusing A of molesting her son. She did not
retreat. Her behavior, paired with her statements, supports
a reasonable inference that the threats of harm were immi-
nent. And, again, the fact that a jury might reasonably have
reached a different conclusion is beside the point. Given the
entire record before it, a jury could conclude that the state
met its burden on each of the elements of the crime of men-
acing and, therefore, it was up to the jury to reach the ver-
dict it reached.
Affirmed.