State v. Wicks , 323 Or. App. 465 ( 2022 )

465
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted November 21, affirmed December 29, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
NORMAN DAVID WICKS, JR.,
Defendant-Appellant.
Columbia County Circuit Court
19CR77630, 19CR78114, 20CR00150;
A174437 (Control), A174438, A174439
Ted E. Grove, Judge.
Brett J. Allin, 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.
Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.
LAGESEN, C. J.
Affirmed.
466 State v. Wicks
LAGESEN, C. J.
Defendant appeals a judgment of conviction for one
count of menacing, ORS 163.190, and one count of stalking,
ORS 163.732. He assigns error to the trial court’s denial
of his motion for judgment of acquittal on both counts. On
appeal, defendant renews his argument as to the menacing
charge, contending that the state did not meet its burden
to prove all required elements. As to the charge of stalking,
defendant contends that the state did not provide sufficient
proof to meet the heightened standard for purely commu-
nicative contacts provided in State v. Rangel, 328 Or 294,
977 P2d 379 (1999). In the event that we find that argument
unpreserved, he asks us to review for plain error. We affirm.
We review the trial court’s denial of each motion for
judgment of acquittal for legal error, viewing the facts and
the reasonable inferences that can be drawn from the facts
in the light most favorable to the state. State v. Newkirk, 319
Or App 131, 133, 509 P3d 757, rev den, 370 Or 214 (2022).
Regarding the conviction for menacing, defendant
contends that it was based on “vague or empty” threats that
are, in his view, legally insufficient to satisfy ORS 163.190(1),
which provides that “[a] person commits the crime of menac-
ing if by word or conduct the person intentionally attempts
to place another person in fear of imminent serious phys-
ical injury.” In particular, he argues that the evidence is
insufficient to permit the inference that he was creating an
imminent threat of serious injury. He suggests further that,
on this record, it would violate his constitutional right to
free expression, protected under Article I, section 8, of the
Oregon Constitution, to hold him criminally liable. The state
counters that the charge was based on defendant’s words
and conduct together and that that evidence is enough for
a reasonable factfinder to conclude that all the elements of
menacing were met beyond a reasonable doubt.
We agree with the state. Defendant’s conduct was
captured on video and included driving aggressively near
the victim while shouting threats at her. That video evi-
dence, which was admitted at defendant’s trial, is legally
sufficient to allow a reasonable factfinder to find that defen-
dant, by word or conduct, “intentionally attempt[ed] to place
Nonprecedential Memo Op: 323 Or App 465 (2022) 467
another person in fear of imminent serious physical injury.”
ORS 163.190(1); cf. State v. Payne, 298 Or App 411, 428, 447
P3d 515 (2019) (concluding that if multiple aspects of a defen-
dant’s conduct can support a menacing charge, that charge
will be upheld so long as “he intended thereby to attempt
to place [the victim] in fear”). Because the evidence is suffi-
cient to satisfy all elements of menacing, defendant’s consti-
tutional right to free speech was not violated by the applica-
tion of the statute to his conduct. See State v. Garcias, 296
Or 688, 698, 679 P2d 1354 (1984).
Regarding the conviction for stalking, defendant
argues that the evidence was insufficient to meet the
heightened standard set out in Rangel for contacts involving
expression. Having reviewed the record, we conclude that
defendant’s Rangel challenge is not preserved, and that it is
not plain that the evidence, as a whole, fails to satisfy that
standard. See Ailes v. Portland Meadows, Inc., 312 Or 376,
381-82, 823 P2d 956 (1991).
Affirmed.