State v. Leahy ( 2022 )

849
Argued and submitted September 9, 2021, affirmed April 6, appellant’s petition
for reconsideration filed April 20 allowed by opinion July 13, 2022
See 320 Or App 772, 513 P3d 625 (2022)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JESSE GRAHAM LEAHY,
Defendant-Appellant.
Jackson County Circuit Court
18CR05720; A172602
509 P3d 699
Lorenzo A. Mejia, Judge.
Mark Kimbrell, 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.
Susan G. Howe, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.*
PER CURIAM
Affirmed.
______________
* Lagesen, C. J., vice DeHoog, J. pro tempore.
850 State v. Leahy
PER CURIAM
Defendant telephoned the victim at work and she
told him not to call her. He nonetheless called her work
number again and, when the victim opted not to answer, left
a voicemail. He then called and texted her cellphone a num-
ber of times. The state charged defendant with telephonic
harassment, in violation of ORS 166.090(1), alleging that he
committed the offense “by causing [the victim’s] telephone to
ring, defendant knowing that defendant had been forbidden
from doing so by a person exercising lawful authority over
the receiving telephone.” Defendant exercised his right to
a jury trial and, at trial, moved for a judgment of acquit-
tal, asserting that there was insufficient evidence to sup-
port a finding that either of the two phones that defendant
called ever rang. The trial court denied the motion, and a
jury found defendant guilty as charged. Defendant appeals,
assigning error to the denial of his motion for judgment of
acquittal. We affirm.
We review the denial of a motion for judgment of
acquittal by viewing the facts and the reasonable inferences
that can be drawn from them in the light most favorable to
the state, and determining whether those facts and infer-
ences would allow a reasonable factfinder to find the ele-
ment or elements of the crime put at issue by the motion
proved beyond a reasonable doubt. State v. Shifflett, 285 Or
App 654, 656, 398 P3d 383 (2017).
At issue is whether the evidence is sufficient to sup-
port a finding that defendant caused the victim’s telephone
“to ring” within the meaning of ORS 166.090(1)(b). To be
sufficient, the evidence must permit a finding that defen-
dant caused the victim’s phone to “emit an audible sound”
after he had been directed not to call her. Shifflett, 285 Or
App at 665.
In this instance, there is no direct evidence that
defendant caused either of the victim’s phones to make an
audible sound when he called. While the victim was on
the stand, the prosecutor never asked the victim if defen-
dant’s calls caused the phones to make an audible sound.
Nonetheless, a rational factfinder, at a minimum, could
Cite as 318 Or App 849 (2022) 851
infer that defendant’s calls to the victim’s work caused the
work phone to emit an audible sound.
The victim testified that defendant called her work
phone a second time about an hour after he had called the
first time, when she had told him not to call her at work.
She testified further that, when defendant called again, “I
did not pick up the phone the second time. I let it go through
to voicemail which he left a voicemail.” Although the victim
did not testify specifically that she heard an audible sound
from the work phone when defendant called the second time,
it would not be unreasonable to infer from her testimony
that she “did not pick up the phone the second time” that
defendant’s second call caused the phone to emit an audible
sound, alerting the victim to the call as it came in, which
she then opted not to answer after seeing that it was defen-
dant. In other words, a reasonable factfinder could infer that
the victim had been alerted to the incoming call by an audi-
ble sound. For that reason, the trial court did not err when
it denied defendant’s motion for judgment of acquittal.
Affirmed.