State v. Hibbard

JOSEPH, C. J.,

dissenting.

The majority is wrong for several reasons, only one of which I need specify.

ORS 166.090(l)(a) proscribes causing another’s telephone to ring without communicative purpose and with the intent to harass or annoy the recipient of the call. Because the trial judge convicted defendant, it follows that he found no communicative purpose in his telephone calls. See Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). The statute does not define “communicative purpose.” The conversations that defendant had with the 9-1-1 operator provide the only evidence of his intent when he caused the phone to ring. Because the conversations clearly demonstrate a communicative purpose,¹ defendant must have placed the calls with the intent to communicate. That he apparently intended also to harass or annoy the operator is irrelevant in this case.

I dissent.

1 We cannot inquire into the validity or worth of the communication. Any communicative purpose necessarily takes defendant’s conduct outside the statute.