State v. Johnson

340

Submitted February 2, affirmed September 27, 2023

STATE OF OREGON,

Plaintiff-Respondent,

v.

KRISTOFER MICHAEL JOHNSON,

Defendant-Appellant.

Yamhill County Circuit Court

18CR80923, 18CR02723;

A175405 (Control), A175406

536 P3d 1029

Defendant challenges his convictions for stalking, ORS 163.732, and tele-

phonic harassment, ORS 166.090. Defendant argues that the trial court erred by

denying his motion for judgment of acquittal because his contacts with two indi-

viduals were constitutionally protected expressive communications that do not

meet the standard established in State v. Rangel, 328 Or 294, 977 P2d 379 (1999).

Specifically, he argues that the state presented insufficient evidence to prove that

the threats were imminent or caused subjective fear. Held: The trial court did not

err. The record and factual context of the parties’ relationship permitted a rea-

sonable factfinder to find that defendant’s contacts satisfied the Rangel standard.

The Court of Appeals also rejected defendant’s unpreserved telephonic harass-

ment arguments.

Affirmed.

Ladd J. Wiles, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Matthew Blythe, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Carson L. Whitehead, Assistant

Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

SHORR, P. J.

Affirmed.

Cite as 328 Or App 340 (2023) 341

SHORR, P. J.

In this consolidated criminal appeal, defendant

challenges his convictions for stalking, ORS 163.732, and

telephonic harassment, ORS 166.090, and a resulting proba-

tion revocation judgment. He raises 10 assignments of error,

contending that the trial court erred in denying his motion

for judgment of acquittal (MJOA) because his contacts with

two individuals were constitutionally protected expressive

communications that do not meet the standard established

in State v. Rangel, 328 Or 294, 977 P2d 379 (1999). He also

advances constitutional and evidentiary challenges to his

telephonic harassment convictions. As explained below, we

conclude that the contacts were not protected expressions

under Article I, section 8, of the Oregon Constitution and

that the state’s evidence was sufficient to satisfy the Rangel

standard. We also reject defendant’s unpreserved telephonic

harassment arguments because they either do not demon-

strate that the trial court committed plain error or we do

not exercise our discretion to consider them in these circum-

stances. Accordingly, we affirm.

“We review the denial of an MJOA to determine

whether, after viewing the facts and all reasonable infer-

ences in the light most favorable to the state, a rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.” State v. Murphy, 306 Or App

535, 536, 475 P3d 100 (2020), rev den, 367 Or 559 (2021)

(internal quotation marks omitted). We describe the facts in

accordance with that standard. Id.

Defendant and J were in a relationship for two

years. During their relationship, J introduced defendant to

her next-door neighbor, M. Defendant and M’s brief friend-

ship ended when defendant sent M a text message accusing

him of having an affair with J and threatening to take M’s

prosthetic leg off and beat him with it. After confronting

defendant in person, M asked the police to stop defendant

from contacting him. Although defendant stopped messag-

ing M for a short time, he eventually resumed messaging

and threatened to beat M up. M’s wife also saw defendant

sitting on his bicycle outside of their home at different times

of day.

342 State v. Johnson

J and defendant ended their relationship in January

2018, and J tried to sever communication with defendant in

September. Although she blocked his phone number, defen-

dant continued to call and email her thousands of times,

filling her voicemail box on a nightly basis. Defendant also

flew his drone over J’s and M’s homes to surveil them with

it. After defendant accessed J’s cell phone and her Facebook

accounts without permission and used the information to

contact her friends, she reported defendant’s conduct to the

police. Although a police officer told defendant that he would

be subject to arrest if he contacted J, defendant continued to

contact her.

A few weeks later, defendant left J a series of mes-

sages describing images of J’s home that he had seen with

his drone. The messages referenced her police interview,

accused J and M of getting him thrown in jail, and blamed

J for destroying his life. Defendant also said that J “should

have to suffer like [he had] suffered for the last three

years.” After contacting the police again, J secretly moved

to a different residence within the town. After she moved,

defendant left her messages saying that he was at her (now-

former) residence and asking why she did not answer at the

door.

On November 27, defendant left J the following

voice messages: “[M], you’re dead. You just died together.

Goodbye,” and “Stay away from [M]. [M] is dead. This is to

keep you and the kids away from [M]. [M] is dead.” On the

same date, defendant also left M six voice messages over a

90-minute period that each said M was “dead” or would die.

The messages included:

• “Well, you’re just going to like to die. You’re going to feel

that. I would like to know what it feels like when your

blood is fucking gushing out of your chest. * * * Hey, [M],

you’re dead. Goodbye. * * * You’re going to die. Because

you wouldn’t tell me the truth.”

• “Guess what, [M], you die. You’re dead. You are gone.

You know what, I’m awake now. [M], you’re dead. You’re

gone. You’re goodbye. It won’t be by me. It doesn’t have

to be. Watch your back * * * You’re dead. You’re gone.

Goodbye.”

Cite as 328 Or App 340 (2023) 343

• “[H]ey [M] how does it feel to be on your wife’s—well I

guess to be your soon ex-wife phone plan? * * * [M], how

does it feel to be dead? You’re dead.”

• “But you’re not even going to see it coming. Because the

work—the order’s been put in. The work had better be

done. Not by me because you’re a punk. * * * In fact this

is one of your old boys from Nevada. He’s going to do it.

Mother fucker. Bye-bye.”

M called the police and said that defendant’s reference to

M’s wife’s cell phone plan—which he had never discussed

with defendant—“disturb[ed] [him] even more.”

The state charged defendant with two counts of

stalking that were based on the November 27 voice mes-

sages to both J and M and six counts of telephonic harass-

ment. Because defendant waived a jury trial, the case was

tried to the court. At trial, the state presented evidence of

the foregoing facts. Significantly, J also testified that defen-

dant had previously punched her in the face and threw a

two-liter bottle of soda through her car window. She also

testified that defendant often referenced her children in his

messages and had texted her 12-year-old son.

M testified that he was “pissed” after he received

the voicemails because defendant had “threatened [his] life”

and that it “took a while” for him to calm down. M testi-

fied that he had told defendant that he previously lived in

Nevada and believed that defendant was capable of carrying

out the threats based on their prior dealings. M also testi-

fied that he “didn’t want some crazy dude coming over to

[his] house trying to kill [him],” that he was “more in fear

for [his] kids,” and that he would do whatever he needed to

protect his family.

Defendant moved for judgment of acquittal on all

counts, arguing that the evidence was insufficient to prove

that M feared for his own safety or that defendant’s threats

to J were imminent because he did not know where she lived

on November 27. The trial court denied the MJOA, conclud-

ing that the evidence was sufficient to establish the elements

of each offense. Following the bench trial, the court found

defendant guilty on all counts and this appeal followed.

344 State v. Johnson

In his first four assignments of error, defendant

advances a combined argument and contends that the trial

court erred in both denying his motions for judgment of

acquittal and finding defendant guilty, because the evidence

was insufficient to support his convictions for stalking J

and M. Defendant was charged with two counts of stalking

under ORS 163.732, which provides, in part:

“(1) A person commits the crime of stalking if:

“(a) The person knowingly alarms or coerces another

person or a member of that person’s immediate family or

household by engaging in repeated and unwanted contact

with the other person;

“(b) It is objectively reasonable for a person in the vic-

tim’s situation to have been alarmed or coerced by the con-

tact; and

“(c) The repeated and unwanted contact causes the

victim reasonable apprehension regarding the personal

safety of the victim or a member of the victim’s immediate

family or household.”

Alarm means “to cause apprehension or fear resulting from

the perception of danger.” ORS 163.730(1). As relevant here,

“contact” includes “[s]peaking with the other person by any

means,” and “repeated” means two or more times. ORS

163.730(3)(f), (7).

When contacts are based on expressive communi-

cation—such as speech or writing—they “must consist of

a threat that convincingly expresses to the addressee the

intention that it will be carried out, and that the actor has

the ability to do so” in order to comply with Article I, sec-

tion 8, of the Oregon Constitution.1 Rangel, 328 Or at 306

(emphasis in original). In other words, “a contact involving

expression cannot underlie a stalking conviction unless

the expressive contact was a threat that ‘instills in the

addressee a fear of imminent and serious personal violence

from the speaker, is unequivocal, and is objectively likely to

be followed by unlawful acts.’ ” S. L. L. v. MacDonald, 267

Or App 628, 630, 340 P3d 773 (2014) (quoting Rangel, 328

1

Article I, section 8, provides, in part, that “[n]o law shall be passed restrain-

ing the free expression of opinion, or restricting the right to speak * * * on any

subject whatever[.]”

Cite as 328 Or App 340 (2023) 345

Or at 303).2 However, “ ‘hyperbole, rhetorical excesses, and

impotent expressions of anger or frustration’ ” do not consti-

tute threats under Rangel. Rangel, 328 Or at 303 (quoting

State v. Moyle, 299 Or 691, 705, 705 P2d 740 (1985)).

We begin with defendant’s arguments concerning

his conviction for stalking J (Count 3). Defendant argues

that the evidence was insufficient to prove that his threats

were sufficiently imminent under Rangel because defendant

did not know where J lived. The state responds that the evi-

dence was sufficient for a rational juror to determine that

the threats were imminent because defendant’s threats to

kill J were not limited to her home and because defendant’s

conduct showed that he had the persistence to locate her. We

agree with the state.

As discussed above, a threat must cause a fear of

“imminent and serious personal violence” to satisfy Rangel.

Rangel, 328 Or at 303. However, we have explained that an

imminent threat need not convey a risk of immediate harm.

S. L. L., 267 Or App at 633. Rather, an imminent threat is

“ready to take place” or “near at hand.” Id.; State ex rel Juv.

Dept. v. Dompeling, 171 Or App 692, 695, 17 P3d 535 (2000)

(explaining that imminent means “near at hand, impending,

or menacingly near” (internal quotation marks omitted)).

When determining whether a communication con-

stitutes a threat under Rangel, we consider the contacts

“under the totality of the circumstances.” Murphy, 306

Or App at 541-42.

“[T]he factual context of the parties’ relationship is pro-

bative evidence in a stalking case. That is because ‘con-

tacts that might appear innocuous in isolation often take

on a different character when viewed either in combination

or against the backdrop of one party’s assaultive behavior

towards the other,’ something that bears on the reasonable-

ness of the victim’s response to the defendant’s conduct.”

State v. Martin, 315 Or App 689, 691, 501 P3d 554 (2021)

(quoting Boyd v. Essin, 170 Or App 509, 518, 12 P3d 1003

(2000), rev den, 331 Or 674 (2001) (emphasis in Martin)).

2

The Rangel standard applies to both the criminal and civil stalking stat-

utes. S. L. L., 267 Or App at 630.

346 State v. Johnson

For example, in S. L. L, we evaluated the “contex-

tual factors” of the parties’ relationship and concluded that

the respondent’s telephonic threat to “fuck [the petitioner]

up” constituted an imminent threat. S. L. L., 267 Or App at

633. In that case, the petitioner obtained a stalking protec-

tive order against the respondent after their divorce. Id. at

629. After considering the respondent’s previous domestic

violence against the petitioner, his willingness to break the

law, and his prior threat that he would send his “skinhead

friends” to “take care of [her]” if she reported his conduct, we

concluded that the respondent threatened imminent serious

physical harm. Id. at 629, 633.

In contrast, in State v. Hejazi, 323 Or App 752, 758,

524 P3d 534 (2023), we concluded that the defendant’s threat

that he would kill an attorney and his family before walking

away did not create an inference that serious harm was immi-

nent. In that case, the defendant and the attorney did not have

a prior relationship and we concluded that neither the defen-

dant’s words nor his conduct in that encounter—approaching

the attorney outside the courthouse then walking away—

supported an inference that serious harm was imminent. Id.; see

also State v. Severson, 325 Or App 550, 559, 529 P3d 302 (2023)

(explaining that the Hejazi defendant “threaten[ed] a virtual

stranger on a public street followed by immediate retreat”).

Defendant contends that this case is similar to

Goodness v. Beckham, 224 Or App 565, 198 P3d 980 (2008), a

case in which we concluded that the respondent’s emails did

not constitute imminent threats under Rangel. In that case,

the respondent sent the petitioner a series of emails over the

course of a year calling her derogatory names and stating

that he would get his son back and that she would “pay.”

Id. at 569. After explaining that the emails did not unequiv-

ocally threaten violence and appeared to be hyperbole, we

concluded that there was no imminent threat because the

respondent lived in a different state and “apparently did not

know petitioner’s address.” Id. at 578. Although the respon-

dent had shown up at the petitioner’s home the year before,

we determined that there was “no evidence that respondent

intended to follow up the email statements with imminent

unlawful acts.” Id.

Cite as 328 Or App 340 (2023) 347

This case is distinguishable from Goodness and

Hejazi in several respects. First, the Goodness messages did

not unequivocally threaten violence. In contrast, defendant’s

messages stated that J would die with M and that M was

already dead. Second, although the Goodness respondent

had gone to the petitioner’s home the prior year and lived

in a different state, defendant and J lived in the same town

and defendant had recently tried to contact J at her previ-

ous home. Finally, we observe that the Hejazi defendant and

the attorney were practically strangers and that the facts

in that case did not indicate that they had any relationship

aside from the three encounters at issue. In contrast, defen-

dant and J had been in a two-year relationship that, signifi-

cant to our conclusion, included physical violence and obses-

sive conduct.

The evidence in the record also demonstrates that

defendant was willing to use extensive and illegal means

to find information about J. Defendant’s attempts to locate

and follow J were extreme. Before J moved, defendant flew

his drone over her home to surveil her and confronted her

about what he thought he saw. Defendant also hacked J’s

cell phone and Facebook accounts and continued to call

and send her messages despite warnings that he could be

arrested if he did not stop. Because defendant’s conduct sup-

ports the inference that he would continue to go to great

lengths to locate her, we conclude that defendant’s voice

messages threatened serious physical harm that was “near

at hand.”

In sum, in light of the backdrop of defendant’s past

physical violence against J and then his later persistent

tracking of her after their relationship ended, defendant’s

threats to kill J were sufficiently imminent to meet the

Rangel standard; that is, there was evidence that they caused

a “fear of imminent and serious personal violence from the

speaker, [were] unequivocal, and [were] objectively likely to

be followed by unlawful acts.” Rangel, 328 Or at 303. The

trial court did not err in denying the motion for judgment of

acquittal and finding defendant guilty of stalking J.

We now turn to defendant’s arguments concerning

his conviction for stalking M (Count 1). Defendant contends

348 State v. Johnson

that the trial court erred in denying his motion for judg-

ment of acquittal because there was no evidence that his

messages, as a factual matter, caused M to experience sub-

jective fear and, consequently, do not satisfy Rangel. The

state responds that the evidence was sufficient to show that

M feared personal violence because his testimony conveyed

that he was anxious and worried about defendant following

through with the threats. We agree with the state.

As discussed above, a qualifying threat under

Rangel must “instill[ ] in the addressee a fear of imminent

and serious personal violence from the speaker.” Rangel,

328 Or at 303. Importantly, a witness is not required to use

“magic words” to convey his subjective fear. See Boyd, 170

Or App at 517-18 (inferring from the petitioner’s testimony,

the parties’ previous contacts, and the respondent’s “history

of assaultive behavior towards petitioner” that the petitioner

was “in fact alarmed”). Rather, we have concluded that a

petitioner’s testimony that he believed that the respondent

would follow through on a threat and that he felt “rattled”

and hunted, coupled with prior requests for police protec-

tion, were sufficient to permit an inference that the peti-

tioner subjectively feared imminent and serious personal

violence. M. D. O. v. Desantis, 302 Or App 751, 763, 461 P3d

1066 (2020).

Defendant argues that M’s testimony is similar to

the attorney’s testimony in Hejazi. In that case, the attorney

testified that even though he was “a little concerned” when

the defendant crossed the street and approached him, he

was not “super apprehensive.” Hejazi, 323 Or App at 755. In

concluding that the evidence was insufficient to show that

the defendant’s nonexpressive conduct alarmed the attorney,

we explained that his testimony “undercuts any conclusion

that the nonexpressive conduct caused sufficient alarm.”

Id. at 762.

We disagree with defendant’s assessment of the evi-

dence and conclude that M’s testimony is distinguishable

from the attorney’s testimony in Hejazi. Defendant argues

that M denied being in fear for his own safety. M said that

he “didn’t want some crazy dude coming over to [his] house

trying to kill [him],” that he was “more in fear for [his] kids,”

Cite as 328 Or App 340 (2023) 349

and that he would do whatever was needed to protect them.

However, the fact that M stated that he was “more” in fear

for his kids does not undercut the evidence that he was, him-

self, subjectively fearful. M also testified that defendant’s

prior conduct made him believe that defendant would carry

out the threats.

We consider defendant’s prior conduct as relevant

context for M’s subjective fear. See Martin, 315 Or App at

691 (“[T]he details of the relationship between two parties

can shed light on whether a defendant knew that particu-

lar conduct would alarm the victim, on what the victim’s sit-

uation was, and on whether apprehension by the victim is

reasonable under the circumstances.”). In addition to the one

instance where defendant and M had a direct confrontation,

the evidence shows that defendant flew his drone over M’s

home several times and sat on his bicycle outside of M’s home

at different times of day. The record also contains evidence

that M had previously contacted the police about defendant’s

messages. In light of the foregoing, we conclude that M’s tes-

timony and the evidence in the record—viewed in the light

most favorable to the state—permit a reasonable factfinder to

find that defendant’s voicemails caused M to fear imminent

and serious personal violence. The trial court did not err.

In his fifth through ninth assignments of error,

defendant argues that the trial court erred by entering judg-

ments of conviction for telephonic harassment on Counts 2,

4, 5, 6, and 8, because ORS 166.090(1)(c) is facially overbroad

and not capable of judicial narrowing. Although defendant

acknowledges that his argument is not preserved, he asks

us to exercise our discretion to reverse the error.

Plain-error review is a two-step process. Ailes v.

Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956

(1991). First, we must determine if the error is plain. State

v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (A plain

error is “an error of law, obvious and not reasonably in dis-

pute, and apparent on the record without requiring the

court to choose among competing inferences.”). Second, if we

conclude that a claimed error was plain error, then we must

determine whether to exercise our discretion to review it.

Id. at 630.

350 State v. Johnson

Under ORS 166.090(1)(c), a caller commits tele-

phonic harassment when the caller intentionally harasses

or annoys another person by “sending to, or leaving at, the

other person’s telephone a text message, voice mail or any

other message, knowing that the caller has been forbidden

from so doing.” Despite defendant’s assertion that the stat-

ute clearly “regulates protected expressive conduct and is

not limited to threats of imminent, serious physical injury,”

we conclude that the legal points on which defendant relies

are not obvious and decline to address them. See State v.

White, 202 Or App 1, 5, 121 P3d 3 (2005), aff’d, 341 Or 624,

147 P3d 313 (2006) (“We do not believe it would serve the

policies underlying the general rule of requiring preserva-

tion to review defendant’s assignment on a plain error basis,

given the nature of his assertion that his conduct was con-

stitutionally protected.”).

Finally, in his tenth assignment of error, defendant

argues that the trial court erred by entering a judgment

of conviction for telephonic harassment on Count 7, ORS

166.090(1)(b), because the record lacked evidence that he

caused J’s phone to ring. Although defendant acknowledges

that the argument is unpreserved, he argues that there is

no reasonable dispute that an audible ring is an element of

the offense.

The state contends that defendant invited the error

by acknowledging “this is telephonic harassment” in his

closing argument and then arguing that he did not know

that he was forbidden from calling J. In any event, the state

asks us to decline to exercise our discretion to review the

error, because the state could have sought additional evi-

dence had defendant raised the issue in a motion for judg-

ment of acquittal. We agree with the state’s final point.

As mentioned above, we begin by examining

whether the claimed error was plain. Vanornum, 354 Or

at 629. ORS 166.090(1)(b) provides, in relevant part, that

a person commits telephonic harassment by intentionally

harassing or annoying another person and “causing such

other person’s telephone to ring, knowing that the caller has

been forbidden from so doing.” Although the statute unam-

biguously requires a caller to cause the other person’s phone

Cite as 328 Or App 340 (2023) 351

to ring, the record lacks evidence that would permit an infer-

ence that J’s phone rang on the day in question. See State v.

Shifflett, 285 Or App 654, 665, 398 P3d 383 (2017) (explain-

ing that ORS 166.090(1)(b) requires that a caller cause the

other person’s telephone to “emit an audible sound”). Thus,

we conclude that the error was plain.

Despite that conclusion, we decline to exercise our

discretion to review the error. At the second step of the

analysis, we must consider “the important policies behind

the preservation rule—e.g., procedural fairness to the par-

ties and the trial court, judicial economy, and full devel-

opment of the record” before exercising our discretion to

review a plain error. State v. Parkins, 346 Or 333, 340, 211

P3d 262 (2009). As relevant here, preservation “ensures

fairness to an opposing party, by permitting the opposing

party to respond to a contention and by otherwise not tak-

ing the opposing party by surprise.” Peeples v. Lampert, 345

Or 209, 219, 191 P3d 637 (2008). Had defendant raised the

error at trial, the state could have elicited additional testi-

mony concerning defendant’s calls and whether they caused

J’s phone to ring. Because defendant failed to preserve the

issue and the policies behind the preservation requirement

were undermined, we decline to exercise our discretion to

review the error.

Affirmed.