State v. Snodgrass ( 2023 )

234
Submitted December 20, 2022, affirmed April 12, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CONNOR HARRISON SNODGRASS,
Defendant-Appellant.
Lane County Circuit Court
21CR01817; A175753
528 P3d 1193
Defendant appeals a judgment of conviction for, among other charges, aggra-
vated harassment under ORS 166.070(1)(c), which criminalizes propelling saliva
at a police officer, where “the saliva comes into physical contact” with the officer.
He assigns error to the trial court’s denial of his motion for a judgment of acquit-
tal (MJOA) on that charge. He essentially argues that evidence that he spat on an
officer, where his spitting reached the officer’s pants but not the officer’s skin, was
insufficient to establish the undefined “physical contact” element for the purpose
of the related conviction. According to defendant, the term physical contact, as
used in ORS 166.070(1)(c), requires contact of saliva with an officer’s actual body,
meaning skin contact. Held: As used in ORS 166.070(1)(c), the term “physical
contact” could be construed to include contact of saliva where the saliva did not
reach the officer’s skin. Although neither the text nor the context of that statute
revealed the meaning of “physical contact” as so used, the statute’s legislative
history indicated that the legislature meant to criminalize spitting on an offi-
cer’s clothing, regardless of whether the spitting resulted in saliva touching the
officer’s body. Evidence that defendant propelled saliva at a police officer and that
the saliva landed on the officer’s pants was therefore sufficient to establish the
physical contact element of aggravated harassment. The trial court thus did not
err in denying defendant’s MJOA.
Affirmed.
Jay A. McAlpin, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid A. MacFarlane, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
Cite as 325 Or App 234 (2023) 235
ORTEGA, P. J.
Affirmed.
236 State v. Snodgrass
ORTEGA, P. J.
Defendant appeals a judgment of conviction for,
among other charges, aggravated harassment (Count 1),
arising from his conduct of spitting on a police officer’s pants.
On appeal, he assigns error to the denial of his motion for a
judgment of acquittal (MJOA) on that count. He argues that
evidence that his spit landed on the officer’s pants is insuf-
ficient to establish the “physical contact” element for the
purpose of a conviction under the applicable statute, ORS
166.070. More specifically, defendant disputes whether the
undefined term “physical contact” includes contact of saliva
with an officer’s uniform or is limited to contact with the
officer’s skin. The state argues in response that the legis-
lature intended to criminalize spitting on a police officer,
regardless of whether the saliva contacts the officer’s skin
or uniform. We agree with the state that the legislature so
intended, and accordingly conclude that the trial court did
not err in denying defendant’s MJOA, and therefore affirm
the judgment.
We review the denial of an MJOA for legal error,
including where the “challenge to the legal sufficiency of the
state’s evidence depends upon the meaning of the statute
defining the offense.” State v. Street, 317 Or App 1, 4, 505
P3d 425, rev den, 369 Or 705 (2022). “Then, based on the
proper construction of the statute, we view the evidence in
the light most favorable to the state to determine whether
a rational factfinder could have found the elements of the
offense beyond a reasonable doubt.” Id. (internal quotation
marks and citation omitted). With those standards in mind,
we set forth the relevant facts, which are undisputed.
Officers Jones and Palki went to a grocery store in
response to a report that defendant had taken a case of beer
without paying and was drinking the beer outside the store.
During the officers’ interaction with defendant, he spat at
them three times, and one of those times defendant’s saliva
landed on Jones’s pants. That conduct became the basis for
the state to indict defendant for aggravated harassment. At
trial, Jones testified that defendant spat at him and that
some saliva landed on his left pant leg, but that no saliva
Cite as 325 Or App 234 (2023) 237
contacted Jones’s skin, eyes, or mouth. Defendant did not
dispute that his saliva hit Jones.
At the close of evidence, defendant moved for a judg-
ment of acquittal, arguing that the evidence did not establish
that any saliva came into physical contact with Jones within
the meaning of ORS 166.070(1)(c). In defendant’s view, the
term “physical contact” in the statute requires that saliva
make contact with a person’s body, either through clothes
or through direct contact, as opposed to contact only with
clothing.
The trial court denied defendant’s motion. It con-
cluded that the term “physical contact” in ORS 166.070(1)(c)
addressed “the saliva and not the body of the subject” and
that “[t]he legislature would have written it differently if
they meant something other.” The court further concluded
that “physical contact” included “a limited extended area of
bodily integrity which would include clothing.”
In his appeal of the trial court’s ruling, defendant
maintains his argument that evidence that saliva hit Jones’s
pants but did not penetrate the clothing to reach Jones’s
body is insufficient to establish that his saliva came into
physical contact with Jones under ORS 166.070(1)(c). He
asserts that the term “physical contact” as used in the stat-
ute means contact with a person’s body, directly or through
clothing. The state contends that the legislature intended
the statute to prohibit spitting on a public safety officer,
regardless of whether the saliva contacts the officer’s skin
or their uniform.
To address the parties’ arguments, we must engage
in our usual mode of statutory construction, first consid-
ering the text and context of ORS 166.070(1)(c), and then
examining any legislative history to discern what the legis-
lature intended. State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009).
We thus begin by reviewing the text and context of
ORS 166.070(1)(c), which provides:
“(1) A person commits the crime of aggravated harass-
ment if the person, knowing that the other person is a:
238 State v. Snodgrass
“* * * * *
“(c) Public safety officer, intentionally propels saliva at
the public safety officer, and the saliva comes into physi-
cal contact with the public safety officer, while the public
safety officer is acting in the course of official duty or as a
result of the public safety officer’s official duties.”
The legislature has not defined the term “physi-
cal contact” in ORS 166.070(1)(c) or any related provision.
When the legislature has not defined a statutory term, but
the term includes “words of common usage,” we examine its
“plain, natural, and ordinary meaning” to determine what
that term may mean, which can be accomplished by refer-
ence to a contemporary dictionary. State v. Castillo, 313 Or
App 699, 705, 495 P3d 191 (2021) (internal quotation marks
omitted). If a term has more than one meaning, the con-
text of its use guides our determination of which of multiple
meanings the legislature intended. State v. Fries, 344 Or
541, 546, 185 P3d 453 (2008). A statute’s context “includes
other provisions of the same or related statutes, the pre-
existing statutory framework within which the statute was
enacted,” and prior decisions interpreting the relevant stat-
utory wording. Ogle v. Nooth, 355 Or 570, 584, 330 P3d 572
(2014).
Here, defendant relies on three main arguments. He
first argues that the only applicable dictionary definitions
for “physical” and “contact” suggest that physical contact, as
used in ORS 166.070(1)(c), means an actual meeting between
saliva and an officer’s skin, directly or through clothing.
See Webster’s Third New Int’l Dictionary 1706 (unabridged
ed 2002) (defining the term “physical” as, among other defi-
nitions, “of or relating to the body”); id. at 490 (defining
the term “contact” as, among other definitions, “union or
junction of body surfaces: a touching or meeting”). Second,
defendant contends that the absence of such a physical con-
tact requirement in ORS 166.070(1)(a) and (b)—which pun-
ish the act of propelling “blood, urine, semen, feces or other
dangerous substance” at staff members and at public safety
officers—indicates that the legislature used the term physi-
cal contact in ORS 166.070(1)(c) to distinguish two different
types of conduct. According to defendant, while sections (a)
and (b) of the statute address simply propelling dangerous
Cite as 325 Or App 234 (2023) 239
substances and risking contact with an officer’s clothing,
section (c) addresses propelling saliva that actually reaches
an officer’s body. Third, defendant relies on the definition of
harassment under the 1971 criminal code, as discussed in
two cases, to argue that saliva that connects with a person’s
clothing but not with the person’s body does not make phys-
ical contact with the person.1 See State v. Keller, 40 Or App
143, 145, 594 P2d 1250 (1979) (construing “offensive physi-
cal contact” for purposes of ORS 166.065(1)(a) (1971)); State
v. Sallinger, 11 Or App 592, 597-98, 504 P2d 1383 (1972)
(same).
We find defendant’s arguments unpersuasive. Neither
of defendant’s proposed dictionary definitions for the terms
“physical” and “contact,” nor any of the other multiple dic-
tionary definitions related to those terms, conclusively
explains whether physical contact includes contact with
clothing or only direct contact with the skin for the purpose
of ORS 166.070(1)(c). Also, contrary to defendant’s sugges-
tion, the absence of a physical contact requirement in ORS
166.070(1)(a) and (b) is not an indication of what is required
for “physical contact” in ORS 166.070(1)(c).
Moreover, the cases on which defendant relies do not
help. Although both Sallinger and Keller consider “offensive
physical contact” for the purpose of harassment to include
contact that relates to contacting the body directly—such as
striking, shoving, kicking, grabbing—neither case explains
the meaning of physical contact as requiring direct con-
tact with skin. As defendant himself recognized, in Keller
we clarified that our decision in Sallinger was not intended
to be a “comprehensive enumeration of the acts prohib-
ited” by the harassment statute. Keller, 40 Or App at 145.
Indeed, contrary to defendant’s argument that physical con-
tact requires contact with skin, Keller suggests that offen-
sive physical contact is not limited to flesh-to-flesh contact.
Ultimately, neither the text nor context of ORS 166.070(1)(c)
clarifies whether the legislature intended to criminalize
spitting on an officer’s clothing.
1
ORS 166.065(1)(a) (1971), amended by Or Laws 1987, ch 806, § 3, provided
that “[a] person commits the crime of harassment if, with intent to harass, annoy
or alarm another person, he * * * [s]ubjects another to offensive physical contact.”
240 State v. Snodgrass
We turn to the legislative history. Gaines, 346 Or at
172. Both parties rely on discussions during the Senate and
House Committee hearings to support their opposing argu-
ments. Defendant argues that, because legislators’ com-
ments indicate that the legislature enacted ORS 166.070(1)(c)
based on concerns regarding the health and safety of police
officers, his proposed interpretation of physical contact,
which requires actual body contact, is consistent with the
statute’s legislative history. In opposing that argument, the
state points to remarks by legislators suggesting that the
legislature also intended to forbid spitting on an officer’s
clothing.
As we explain below, we agree with the state that
the legislative history of ORS 166.070(1)(c) indicates that
“physical contact” is meant to require contact with the
body but includes clothing. The legislature added the phys-
ical contact provision to ORS 166.070(1)(c) through Senate
Bill (SB) 482 (2013) to criminalize spitting on a public
safety officer. See Or Laws 2013, ch 477, § 1 (enacting ORS
166.070(1)(c)). The prior version of ORS 166.070, which pun-
ished propelling certain “dangerous substances” at correc-
tions officers, including “saliva,” did not include public safety
officers and did not contain a physical contact requirement.
ORS 166.070 (2009), amended by Or Laws 2013, ch 477,
§ 1. As introduced, SB 482 also did not contain the term
physical contact, but simply provided that “[a] person com-
mits the crime of aggravated harassment [(a Class C fel-
ony)] if the person * * * propels saliva, blood, urine, semen
or feces at [a] public safety officer.” SB 482 (2013) (as intro-
duced). However, the legislature later amended the text of
SB 482 to include the physical contact provision. The dis-
cussions regarding that amendment provide the basis for
our conclusion that, contrary to defendant’s argument, spit-
ting saliva on an officer’s pants can constitute aggravated
harassment.
We begin by explaining the relevant parts of those
discussions, which occurred during Judiciary Committee
hearings in both houses. During the first relevant hearing
in the Senate, a representative from the American Civil
Liberties Union (ACLU), Becky Straus, stated:
Cite as 325 Or App 234 (2023) 241
“[I]n terms of the language of the bill, I’m a little wor-
ried about a broad sweep beyond the target harm here. * * *
[W]hat I’m hearing which is certainly important behavior
* * * particularly someone who’s carrying a disease, spit-
ting more likely in the face of an officer, so as such, trans-
mit that disease to the officer. I think that’s the harm that
we should get at. I’m worried that the bill right now sweeps
much more broadly than that. I think the current language
right now is propel at. I’m worried that someone even spit-
ting on the ground could be caught up in this. So, if there’s
anything we can do to talk about narrowing that.”
Audio Recording, Senate Committee on Judiciary, SB 482,
Mar 5, 2013, at 21:28 (statements of ALCU representative
Becky Straus), https://olis.oregonlegislature.gov (accessed
Mar 15, 2023).
The Senate Committee on Judiciary Chair, Senator
Prozanski, replied:
“I reviewed the statute again and as [Straus] stated
on the record, it does state basically that an individual is
guilty or would be guilty if they are propelling at the indi-
vidual. So, I’m gonna look at that term at versus on; I think
that’s something that we need to consider. * * * [I]t does
require the act * * * being intentional. * * * [R]ight now, for
an officer to be spat on, the charge would be harassment,
which is a Class B misdemeanor. For aggravated harass-
ment * * * to be a Class C felony, it has to be one of these
two categories, with those types of actions. If we modified
the language that’s currently there and made it where
that type of substance had to strike the individual, that
would be the aggravated. And then if a prosecutor wanted
to charge someone to say someone intentionally throws it
at them or spits at them but misses them, then it would be
an attempt. An attempt would drop it down one grade to a
Class A misdemeanor.”
Id. at 23:18 (comments of Sen Floyd Prozanski) (emphases
added).
At this point, Senator Kruse, comparing the pro-
posed change to SB 482 with ORS 166.070(1)(b), which pun-
ishes the act of propelling “blood, urine, semen or feces at
* * * public safety officer[s]” but does not require that act
242 State v. Snodgrass
to be intentional or that the substance strikes the officer,
stated:
“I would submit that these other bodily fluids—even
if they miss, that’s kind of different than spitting. * * * I
do think there’s a differentiation. So, I’m not sure that we
lower for these other things. [W]e just make sure that spit-
ting is kind of separated.”
Id. at 25:28 (statements of Sen Jeff Kruse). In response to
the comments above, the Senate Judiciary Committee, at
a later hearing, discussed two proposed amendments to SB
482: the -1 amendment, which included the physical con-
tact requirement, and the -2 amendment, which did not.2
The committee ultimately chose the -1 amendment. Prior to
making that decision, committee counsel Michael Schmidt
introduced the -1 amendment as follows:
“There is a dash one amendment, which makes it clear
that the legal conduct would * * * be, if you propelled saliva
it came into physical contact with the public safety officer.
So not just kind of flinging it at but actually landing on.”
Audio Recording, Senate Committee on Judiciary, SB 482,
Apr 9, 2013, at 2:10 (comments of Senate Committee on
Judiciary Counsel Michael Schmidt), https://olis.oregon-
legislature.gov (accessed Mar 15, 2023) (emphases added).
Addressing the substance of the amendment, a witness sup-
porting SB 482 asked, “[I]n regards to the dash one amend-
ment, * * * the [physical] contact, would that be skin con-
tact or clothing contact?” Id. at 3:35 (question by witness,
paramedic Greg Stoll). In response to Stoll’s question, Chair
Prozanski responded, “Contact is contact, whether you got
clothes on or you don’t have clothes on. You’d have clothes on,
I would think.” Id. at 3:43 (comment of Sen Floyd Prozanski).
At the first House Committee on Judiciary hear-
ing, counsel from the Oregon Criminal Defense Lawyers
2
The -1 amendment provided that a person would commit aggravated
harassment if the person “intentionally propels saliva at the public safety officer,
and the saliva comes into physical contact with the public safety officer.” SB 482
(2013), -1 amendments (Mar 8, 2013). The -2 amendment, which was not adopted,
provided that aggravated harassment would include conduct in which a person
propels saliva at an officer, “know[ing] or believe[ing] that the person has a dan-
gerous communicable disease.” SB 482 (2013), -2 amendments (Apr 1, 2013).
Cite as 325 Or App 234 (2023) 243
Association expressed the following concerns about to SB
482:
“[I]n 2009, * * * adding what is now subsection (b) [of
ORS 166.070], so making it unlawful for someone to know-
ingly propel blood, urine, semen, or feces at a public safety
officer out in the field, * * * not that there was consensus
[but] the end result was * * * to exempt saliva from that,
and it did come down to the question of, ‘Do we really want
to felonize spitting at someone?’ * * * I do point out that the
debate too in 2009 was really if you spit on an officer’s boot,
is it a felony? And, as this is written—this amendment * * *
says that they must intentionally propel saliva at the offi-
cer and come into physical contact with the officer, but it
doesn’t mandate that the contact be in an area that would
subject the officer to infection. * * * I don’t know yet that this
is still tight enough. I think it’s a serious question for the
committee—Is spitting something that should be a felony?”
Audio Recording, House Committee on Judiciary, SB 482,
May 6, 2013, at 56:40 (comments of Oregon Criminal Defense
Lawyers Association representative Gail Meyer), https://olis.
oregonlegislature.gov (accessed Mar 15, 2023) (emphases
added).
During the second House Committee on Judiciary
hearing on SB 482, Representative Brent Barton—voting
against the bill—stated:
“I think a Class C felony is a big deal. That is, in the-
ory, * * * punishable by more than a year in prison. * * *
[T]his bill just talks generally spitting on, and I feel like
it’s poorly defined. * * * [P]otentially, spitting on an officer’s
boots could land someone in jail for a year. * * * [W]hen
you have that framework, I’m concerned that it might lead
to potentially arbitrary or unbalanced application of it.
* * * [C]ertain political minorities and other kind of high-
tension social groups might end up bearing the burden of
this prosecution more than others. * * * [T]hat civil liberties
implication concerns me.”
Audio Recording, House Committee on Judiciary, SB 482,
Apr 29, 2013, at 7:47 (comments of Rep Brent Barton), https://
olis.oregonlegislature.gov (accessed Mar 15, 2023) (empha-
sis in original). During that same hearing, Representative
Andy Olson, voting in favor of SB 482, stated:
244 State v. Snodgrass
“I appreciate what Representative Barton was saying,
given the illustration of spitting on the boots as it would
apply toward this one and what the reaction would be then
on behalf of the officer. * * * I have been spat on a few times
in my career; not once has it has ever been on the boots; it
has always been toward the upper body toward the face,
and I think that’s what this bill is designed for * * *.”
Id. at 10:28 (comments Rep Andy Olson).
We conclude, based on this history and on the leg-
islature’s ultimate decision to pass SB 482 regardless of
concerns about whether it made it a felony to engage in
conduct such as spitting on an officer’s boots, that the leg-
islature intended ORS 166.070(1)(c) to include spitting on
an officer’s clothing. Although the concerns expressed by
Representative Barton, in voting against it, that SB 482
was “poorly defined,” and could lead to “arbitrary applica-
tion” strike us as valid, we conclude that the legislature
intended ORS 166.070(1)(c) to apply when saliva reaches an
officer’s clothes. As the discussions of Senate Committee on
the Judiciary demonstrate, the bill was intended to separate
the punishable and nonpunishable conduct by excluding only
conduct where the saliva “pass[ed] by” versus conduct where
the saliva “land[ed] on” the officer. Thus, we conclude that
“physical contact” in ORS 166.070(1)(c) includes the spitting
of saliva on an officer’s clothing, regardless of whether the
saliva touches the officer’s skin.
Having determined that ORS 166.070(1)(c) applies
to conduct where a defendant’s saliva reaches an officer’s
uniform, we must determine whether a rational factfinder
could have found beyond a reasonable doubt that defen-
dant’s conduct of spitting on Jones was sufficient to support
a conviction under ORS 166.070(1)(c). Street, 317 Or App 1.
Viewing the “evidence in the light most favorable to the
state” under Street, we conclude that a jury could have found
beyond a reasonable doubt that defendant propelled saliva
at Jones and that the saliva came into physical contact with
Jones. Considering that the other elements of the offense
are undisputed on appeal, we conclude that the trial court
did not err in denying defendant’s MJOA.
Affirmed.