State v. Rogers ( 2019 )

393
Argued and submitted September 23, reversed and remanded
December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
TRACY LYNN ROGERS,
Defendant-Appellant.
Harney County Circuit Court
17CR56209; A167425
457 P3d 363
Defendant was convicted of harassment, ORS 166.065(1)(c), for writing a
Facebook post in which she threatened to kill her supervisor at work. The post,
although posted only to defendant’s Facebook friends and not viewed by the
supervisor on Facebook, was ultimately forwarded to the supervisor by other
persons who had taken “screenshots” of the post and forwarded them by text
message. The state alleged that, in writing the post, defendant intentionally sub-
jected her supervisor to alarm by conveying an electronic threat to commit a fel-
ony involving her supervisor. Defendant assigns error to the trial court’s denial
of her motion for judgment of acquittal, arguing that the state failed to pres-
ent sufficient evidence of defendant’s intent to convey a threat to her supervisor.
Held: The trial court erred when it denied defendant’s motion. Because the state
failed to present legally sufficient evidence of defendant’s intent in writing the
Facebook post, the Court of Appeals concluded that no rational factfinder could
find that the state proved that defendant intended to subject her supervisor to
alarm by conveying a threat to commit a felony involving her supervisor’s person.
Reversed and remanded.
W. D. Cramer, Jr., Judge.
Nora Coon, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Philip Thoennes, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Keith L. Kutler, Assistant Attorney General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
394 State v. Rogers
SHORR, J.
Reversed and remanded.
Cite as 301 Or App 393 (2019) 395
SHORR, J.
Defendant appeals from a judgment of conviction
for harassment, ORS 166.065(1)(c), assigning error to the
trial court’s denial of her motion for judgment of acquittal.
Because the state failed to present legally sufficient evi-
dence that defendant acted with the requisite intent, we
conclude that the court erred in denying defendant’s motion.
Accordingly, we reverse and remand.
In reviewing the denial of a motion for judgment
of acquittal, “we view the facts and reasonable attendant
inferences in the light most favorable to the state.” State v.
Tilly, 269 Or App 665, 667, 346 P3d 567, rev den, 357 Or
640 (2015). We state the following facts in accordance with
that standard. Defendant worked at a Safeway store, as
did K, the assistant store director and defendant’s super-
visor. On July 30, 2017, defendant posted to her Facebook
account, viewable only by her Facebook friends. In the post,
she wrote, “That box cutter I’m gonna put to good use tomor-
row!!! Watch out [K]!” Thereafter, defendant made state-
ments in “comments” beneath the original post, including
“I will cut your throat!!,” “I’m gonna kill you!!,” “I’m going to
prison,” and “I will slice her throat [tomorrow].” Defendant
referred to K by name once, in the original post, but she
referred to K by her first name only.
That night, “numerous people [who] were concerned
about the context of the post” sent K “screenshots” of defen-
dant’s Facebook post via text messages. Because K did not
have a Facebook account or use social media, she did not
observe the posts directly through Facebook. After receiving
the screenshots, K called the police. The following morning,
Chief Delange of the Hines Police Department learned of
the post when screenshots were forwarded to him by a Hines
Police Department detective. Delange was “friends” with
defendant on Facebook. Because Delange was friends with
defendant, he was able to view the post directly through the
Facebook application on his cell phone. After viewing the
posts, Delange contacted defendant at the Safeway where
she and K worked. During Delange’s conversation with
defendant, she acknowledged that she had written the post,
396 State v. Rogers
but told Delange that, although she was “upset with her
boss,” she “wouldn’t actually kill [K].”
Ultimately, defendant was charged with harass-
ment under ORS 166.065(1), which provides, in part:
“A person commits the crime of harassment if the per-
son intentionally:
“* * * * *
“(c) Subjects another to alarm by conveying a tele-
phonic, electronic or written threat to inflict serious phys-
ical injury on that person or to commit a felony involving
the person or property of that person or any member of that
person’s family, which threat reasonably would be expected
to cause alarm.”
Defendant elected to be tried by the court. At the
close of the state’s case in chief, defendant moved for a judg-
ment of acquittal, arguing that the state had presented insuf-
ficient evidence that defendant had intentionally conveyed a
threat to K. The trial court denied defendant’s motion, find-
ing that the state had presented sufficient evidence to sup-
port a determination that defendant had conveyed an elec-
tronic threat to K, and that defendant did so intentionally.
The court explained that “the very nature of something like
a social networking website like Facebook is to communi-
cate with a large group of people” and “to communicate back
to the object of the communication.” According to the court,
the statute contemplated indirect forms of communication
because “everybody understands that if there’s a threat to
somebody, they’re going to communicate, ‘Hey, so and so has
made this threat to you.’ ” The court analogized to another
indirect form of communication, noting that, if defendant
had “told the threat to [K’s] husband,” then “certainly [defen-
dant would be] intending the threat to get to [K].” After the
trial, the court convicted defendant of harassment.
On appeal, defendant assigns error to the trial
court’s denial of her motion for judgment of acquittal. She
makes two arguments with respect to the court’s alleged
error. First, defendant argues that the state failed to pres-
ent sufficient evidence from which a factfinder could rea-
sonably conclude that defendant conveyed a threat to K.
Cite as 301 Or App 393 (2019) 397
In making that argument, defendant asks that we adopt a
narrow interpretation of “convey” within ORS 166.065(1)(c)
that excludes indirect communication between defendants
and victims. Second, defendant argues that the state did not
present sufficient evidence that defendant intentionally con-
veyed the threat to K or caused K alarm. Defendant does not
contend that the post itself did not constitute an “electronic
threat” under the statute, and we, therefore, do not address
that issue.
In response, the state asserts that, from the evi-
dence presented at trial, a reasonable trier of fact could con-
clude that defendant conveyed a threat of serious physical
injury to K, and that defendant did so intentionally. With
respect to the meaning of “convey” within ORS 166.065
(1)(c), the state argues that the plain meaning of that term
includes indirect communication through intermediaries.1
To determine whether a trial court erred in deny-
ing a motion for judgment of acquittal, we view “the evi-
dence in the light most favorable to the state to determine
whether a rational factfinder could have found the elements
of the crimes in question beyond a reasonable doubt.” State
v. Reed, 339 Or 239, 243, 118 P3d 791 (2005). In this case,
we must determine whether there was legally sufficient
evidence from which a rational factfinder could find that
defendant’s Facebook post conveyed the threat therein to K,
and, if so, whether there was legally sufficient evidence from
which that factfinder could find that defendant conveyed
that threat intentionally.
We begin our analysis by identifying the elements
of harassment in accordance with the facts of this case. In
the charging instrument, the state alleged that defendant
committed harassment by “intentionally subject[ing] [K] to
alarm by conveying an electronic threat to commit a felony
involving the person of [K] which threat could have reason-
ably been expected to cause alarm.” The state was required
to prove the following elements at trial beyond a reason-
able doubt: (1) defendant intended to subject K to alarm by
1
The state also argues that defendant failed to preserve her argument
regarding the meaning of “convey.” We disagree and conclude that defendant pre-
served her arguments at trial as required by ORAP 5.45(1).
398 State v. Rogers
conveying an electronic threat to commit a felony involving
K’s person; (2) defendant conveyed the threat; (3) K was actu-
ally alarmed by the threat; and (4) K’s alarm was objectively
reasonable. See State v. Moyle, 299 Or 691, 698, 705 P2d 740(1985) (describing the elements of former ORS 166.065(1)(d)
(1981), renumbered as ORS 166.065(1)(c) (1987)).
We need not address defendant’s first argument
regarding the meaning of “convey,” because, regardless of
whether defendant is correct that it requires direct commu-
nication between the defendant and the victim, we conclude
that the state presented insufficient evidence that defen-
dant intended to convey a threat to K, either directly or
indirectly.
“Intentionally” means that “a person acts with a
conscious objective to cause the result or to engage in the
conduct so described.” ORS 161.085(7). Accordingly, a jury
could convict defendant of harassment only if the state pre-
sented sufficient evidence from which a rational factfinder
could find that defendant, in writing the Facebook post,
acted with a conscious objective to convey the threatening
statement therein to K.
In establishing an element of a crime, “the state
may rely on circumstantial evidence and reasonable infer-
ences flowing from that evidence.” State v. Bivins, 191 Or
App 460, 466, 83 P3d 379 (2004). If the established facts
“support multiple reasonable inferences,” then “which infer-
ence to draw is for the jury to decide.” Id. at 467. But “[w]het-
her particular circumstantial evidence is sufficient to sup-
port a particular inference” is a “legal question for a court to
decide.” Id.In making that determination, the court must dis-
tinguish between permissible inferences that may be drawn
from circumstantial evidence and mere speculation. Id. at
467. Evidence is insufficient to support a particular inference
if it requires “too great an inferential leap” or “the stack-
ing of inferences to the point of speculation.” Id. at 468. The
question is “whether the factfinder reasonably could infer
that a particular fact flows from the other proven facts, not
whether the inference necessarily flows.” State v. Hedgpeth,
Cite as 301 Or App 393 (2019) 399
365 Or 724, 733, 452 P3d 948 (2019). The difference between
a reasonable inference and impermissible speculation “is
not always easy to describe with precision.” State v. Macnab,
222 Or App 332, 335, 194 P3d 164 (2008).
Bivins illustrates that distinction. There, the defen-
dant was convicted of assault, which was elevated to a fel-
ony offense based on the jury’s finding that the defendant’s
children witnessed the assault. Bivins, 191 Or App at 462.
At trial, the defendant moved for a judgment of acquittal on
the grounds that the state had presented insufficient evi-
dence that a minor child had witnessed the fight between
the defendant and his former girlfriend. Id. at 465. The
state presented no direct evidence of what the children per-
ceived and relied on circumstantial evidence to prove that a
child had witnessed the assault. The state’s theory was that
“(1) the children were in the house; (2) by being in the house,
they could have heard or seen defendant strike [the victim];
and therefore (3) the jury could infer that [the child] heard or
saw the assault with sufficient awareness to have witnessed
it.” Id. at 468. Although there was sufficient evidence from
which to draw the first two of those inferences, we explained
that the third logical inference required “several additional
intermediate inferences.” Id. at 469. Because the record did
not indicate whether the sound of the assault could be heard
above the noise of the argument or “what the children were
doing or what they actually saw and heard,” the “minimal
circumstantial evidence presented by the state” required
“too much stacking of inferences and, ultimately, too great
an inferential leap.” Id. at 469-70.
Courts are frequently required to make such a
distinction in cases where the state must prove a defen-
dant’s mental state, because a defendant’s subjective intent
is rarely proved by direct evidence. Rather, “jurors ordi-
narily infer intent from circumstantial evidence.” State v.
Hennagir, 246 Or App 456, 462, 266 P3d 128 (2011), rev den,
352 Or 33 (2012). Such circumstantial evidence generally
consists of “the acts of the defendant as they relate to the
action element of the offense.” State v. Martin, 243 Or App
528, 534, 260 P3d 197 (2011) (internal quotation marks
omitted). Whether a defendant’s act may form the basis for
400 State v. Rogers
an inference of that defendant’s mental state depends on the
facts and circumstances of a particular case, as illustrated
by the following cases.
In State v. Hendricks, 273 Or App 1, 18, 359 P3d
294 (2015), rev den, 358 Or 794 (2016), the defendant was
convicted of coercion, among other things, for repeatedly
punching the victim in the head while she attempted to
retrieve her study materials from her living room. In accor-
dance with the elements of coercion as alleged, the state was
required to prove that the defendant intended to compel the
victim to abstain from conduct in which she had a legal right
to engage. Id. At trial, the evidence demonstrated that the
defendant assaulted the victim, but there was “no evidence
probative of defendant’s specific intent, if any, in engaging
in that assaultive conduct.” Id. at 19. For example, there
was no evidence of what the defendant said to the victim,
“nor [was] there evidence of some expressive gesture or act”
apart from the assault, that bore on the defendant’s intent.
Id. As a result, we held that the evidence was insufficient to
establish that the defendant intended to compel the victim
to abstain from conduct in which she had a legal right to
engage. Id.
In State v. Nelson, 267 Or App 621, 625-26, 341
P3d 787 (2014), the defendant was charged with disorderly
conduct for “knowingly” creating a risk of “public inconve-
nience, annoyance and alarm” by “initiating and circulat-
ing a report of an impending catastrophe in a school.” The
defendant and the defendant’s friend each had accounts
with “Myspace,” a social media website. The friend’s account
was accessible to the public. The friend posted, on his own
page, that he wanted to carry out a school shooting at the
local high school. The defendant replied to the post in the
comments section stating that he wanted to participate.
Another person, who did not know the defendant, saw the
conversation on the friend’s public page and reported it to
police. Id. at 624-25. Because one element of that crime
was “the culpable mental state of knowingly,” the state was
required “to prove that, when defendant made the relevant
statements, he knew that he was creating a risk of public
inconvenience, annoyance and alarm.” Id. at 626 (internal
quotation marks and brackets omitted). We determined that
Cite as 301 Or App 393 (2019) 401
there was no evidence “that defendant knew that his con-
tribution to the conversation would ultimately move beyond
the conversation itself so as to cause the specified risks.”
Id. at 627. In fact, the evidence demonstrated that the third
party who reported the conversation did not know the defen-
dant and she did not indicate to the defendant that she took
the conversation seriously. Therefore, we concluded that “no
reasonable juror could find, on the evidence in the record
and inferences drawn from it, that defendant knew that [the
third party] would make [the] report.” Id.
Returning to the issue before us, the state had to
prove, among other things, that defendant intended to sub-
ject K to alarm by conveying an electronic threat to com-
mit a felony involving K’s person. Here, the state did not
present any direct evidence of defendant’s intent that K see
the threatening post and be alarmed as a result. In fact,
testimony that defendant was “upset with her boss” was
the only evidence of defendant’s reason for creating the post
at all. The state’s indirect evidence concerning defendant’s
intent to convey a threat to K consisted of testimony that
defendant wrote the Facebook post, that defendant was
“upset with her boss,” that more than one individual sent K
a screenshot of the post, and the post itself. The state argues
that, from that evidence, a factfinder could reasonably infer
that defendant acted with the conscious objective for K to
see or be informed of the threatening post, thereby creating
alarm.
We disagree. Although the posts and defendant’s
own comments to them are written as though directed to K,
that fact alone cannot support an inference of defendant’s
intent, because the probative significance of those state-
ments varies greatly depending on the context in which
they appear. If, for example, defendant wrote those same
statements in her personal diary, the statements would pro-
vide little support to the contention that defendant intended
for K to see the threat. Conversely, if defendant wrote those
statements in a Facebook post to which K had access as a
Facebook friend, the statements would provide significant
support for the inference that defendant intended K to see
the threat. Therefore, we must examine the context sur-
rounding the post.
402 State v. Rogers
On appeal, the state treats the post as one not
accessible to the general public and explains that defen-
dant “limited her posts only to persons designated as her
‘friends.’ ” Only one witness, Delange, testified to seeing the
post directly through Facebook. He was Facebook friends
with defendant and testified that “that is how” he observed
the message. Every other witness who saw the posts
observed them through screenshots received from other per-
sons. Regardless, to prove that it was defendant’s conscious
objective for K to perceive the threat, the state must have
presented some evidence from which to infer that defendant
either believed that K was a Facebook user and would see
the threat or that another Facebook user would communi-
cate the threat to her.
The state did not present any evidence that could sup-
port an inference that defendant believed K had a Facebook
account and would therefore see the threat. Certainly, the
state did not present evidence from which to infer defendant
believed that K, who does not have a Facebook account, was
her Facebook friend. Nor did the state present evidence that
the post was viewable by all Facebook users.
To conclude that defendant intended for another
Facebook user to send the threat to K, the inferences
required depends on whether the post was viewable by
defendant’s Facebook friends or the public. If the Facebook
post was viewable by defendant’s friends only, as is the
case here, a factfinder must be able to infer reasonably that
(1) one or more of the “numerous” people that sent screen-
shots of the post to K were friends with defendant on
Facebook, (2) defendant was aware that one or more of those
Facebook friends was a mutual acquaintance of K, and
(3) defendant desired for one or more of those Facebook
friends to communicate the threat to K.
Although the first of those inferences is reasonable,
the second and third require too much speculation based on
this scant record. There is no evidence from which to infer
defendant’s awareness that any of her Facebook friends were
mutual acquaintances of K, or that defendant desired for
one of those people to share the Facebook post with K. The
state did not present evidence of the number of defendant’s
Cite as 301 Or App 393 (2019) 403
Facebook friends, or exactly who sent the screenshots to K.
Only the identities of two of K’s Facebook friends are appar-
ent from the record, Delange and a friend of defendant who
commented on the post, but who was not otherwise involved
in the case. There was no evidence that either of those indi-
viduals had a mutual relationship with K. Put another way,
there was insufficient evidence to bridge the gap between
the post, which was viewable by a group to which K indis-
putably did not belong as a friend or member of Facebook,
and the inference of defendant’s conscious objective that K
see the post.
There was also no evidence that the Facebook post
was viewable by the general public and that, therefore,
defendant desired for one or more of those public Facebook
users who might know K to communicate the threat to K.
As in Nelson, which involved comments made within a public
account, there is little evidence in the record that defendant
knew—let alone intended—that her post and subsequent
comments “would ultimately move beyond the conversation
itself.” 267 Or App at 627. Evidence of the identities of inter-
mediaries might suffice, and the lack of that evidence high-
lights the evidentiary shortcomings in this case. The trial
court’s hypothetical, noted above, is illustrative of that prob-
lem. Under that hypothetical, in which defendant tells K’s
husband that she plans to kill or harm K, there would be
little doubt as to defendant’s intent for K to receive the mes-
sage. That functions as a strong example of intent to commu-
nicate a threat indirectly precisely because the intermedi-
ary is the addressee’s husband—a person who is very likely
to tell the addressee about the threat. In contrast, we know
nothing about the identities of the intermediaries here.
Because the state failed to present legally sufficient
evidence of defendant’s intent in writing the Facebook post,
we conclude that no rational factfinder could find that the
state proved that defendant intended to subject K to alarm
by conveying a threat to commit a felony involving K’s per-
son. Therefore, the trial court erred in denying defendant’s
motion for judgment of acquittal, and we reverse defendant’s
conviction for harassment.
Reversed and remanded.