State v. Anderson , 56 Or. App. 12 ( 1982 )

641 P.2d 40 (1982) 56 Or.App. 12

STATE of Oregon, Appellant,
v.
Ronald Anthony ANDERSON, Respondent.

No. CR 80-452; CA A21489.

Court of Appeals of Oregon.

Argued and Submitted November 30, 1981. Decided February 22, 1982.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued cause for appellant. With him on brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Kenneth A. Morrow, Eugene, argued cause for respondent. With him on brief was Morrow, McCrea & Divita, P.C., Eugene.

Before RICHARDSON, P.J., and THORNTON and VAN HOOMISSEN, JJ.

THORNTON, Judge.

The state appeals an order of the district court sustaining a demurrer to a complaint charging defendant with menacing. The trial judge ruled that the statute, ORS 163.190 is unconstitutionally vague and overbroad. We reverse and remand for trial.

The complaint alleges:

"The Defendant, on or about July 15, 1980, in the County of Benton and State of Oregon did unlawfully and intentionally attempt to place Carl Skirving in fear of imminent serious physical injury by brandishing a pistol at Carl Skirving while threatening to shoot him."

Menacing is defined by ORS 163.190(1), which provides:

"A person commits the crime of menacing if by word or conduct he intentionally attempts to place another person in fear of imminent serious physical injury."

In support of the trial court's ruling on the demurrer, defendant first argues the statute is void on its face because it "unduly restricts the exercise of free expression guaranteed by Article I, § 8 of the Oregon Constitution," citing State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980). In Spencer, speech itself was the direct subject of the disorderly conduct provision, ORS 166.025(1)(c). The Supreme Court found that statute unconstitutional because the terms of the statute prohibited protected speech. Here, the statute is not directed at speech and in that respect is like any other criminal statute defining a crime which may incidentally involve communication. See State v. Robertson, 54 Or. App. 630, 633, 635 P.2d 1057 (1981) (criminal coercion statute, ORS 163.275(1)(e), does not encroach on First Amendment rights nor is it unconstitutionally vague). The prohibited act under ORS 163.190 is "intentionally attempting to place a person in fear of imminent serious physical injury." As the statute indicates, this can be accomplished by "word or conduct." That a person can attempt to place another in fear of imminent serious physical injury through words is only incidental and does not directly implicate First Amendment nor Article I, § 8 rights.

In State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981), a case involving possession of a "billy" in violation of ORS 166.510(1), the court discussed constitutional overbreadth. The court noted that the legislature can make a law as "broad" and inclusive as it chooses, unless it reaches into a constitutionally protected area. As in State v. Robertson, supra, no First Amendment intrusion exists here, and no encroachment on any other constitutional right has been asserted. It follows that ORS 163.190 is not unconstitutionally overbroad.

Defendant also argues that the menacing statute is unconstitutionally vague and void on its face. Assuming this argument is properly before us in this case, we do not find the statute to be so elastic that persons of common intelligence must necessarily guess at its meaning, City of Portland v. White, 9 Or. App. 239, 242, 495 P.2d 778, rev. den. (1972), or that it impermissibly delegates basic policy matters to police officers, prosecutors, judge and juries for resolution on an ad hoc basis. State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969).

The statute employs words which are either defined elsewhere in the criminal code,^[1] or are in common usage. See State v. Corpuz, 49 Or. App. 811, 621 P.2d 604 (1980). Cf. City of Portland v. Anderson, 40 Or. App. 779, 596 P.2d 603 rev. den. 287 Or. 507 (1979) (ordinance in question did not define words nor were they of common usage). The material elements of the offense of menacing are (1) intentionally (2) attempting (3) by word or conduct (4) to place another person in fear of imminent serious physical injury. State v. Cummings, 33 Or. App. 265, 268, 576 P.2d 36 (1978). The victim's subjective state of mind is not a defined element of the crime; rather it is only necessary that a reasonable person would have been placed in the requisite state of fear. State v. Lockwood, 43 Or. App. 639, 642, 603 P.2d 1231 (1979).

Menacing covers any situation where the actor attempts to place another person in fear of imminent serious bodily harm and where serious injury is neither intended nor inflicted. Criminal Law Revision Committee, Proposed Criminal Code, Final Draft and Report, § 95, at 96 (1970). The language used in ORS 163.190 is not of the "dragnet" or "catchall" variety as disapproved in State v. Sanderson, 33 Or. App. 173, 178, 575 P.2d 1025 (1978). The statute provides an adequate basis to distinguish between anti-social conduct which was intended to be prohibited and socially tolerable conduct which could not reasonably have been intended to be subject to criminal sanction. We find, therefore, that ORS 163.190 is not vague. Reversed and remanded for trial.

NOTES

[1] For example, "intentionally" is defined in ORS 161.085(7); "serious physical injury" is defined in ORS 161.015(7).