State v. Wilcox

STATE_V_WILCOX.92-355; 160 Vt. 271; 628 A.2d 924

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-355


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Kevin Wilcox                                 April Term, 1993


 Robert Grussing III, J.

 Christopher C. Moll, Windham County Deputy State's Attorney, Brattleboro,
   fo plaintiff-appellee

 Sam Kono, Public Defender, Brattleboro, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Defendant appeals from a jury conviction of disturbing the
 peace by use of the telephone, in violation of 13 V.S.A. { 1027(a).  He
 argues that the court erred by instructing the jury that the intent required
 under the statute should be measured at the time the threat was made rather
 than at the time the call was placed.  Relying on the same statutory
 argument, defendant also contends that the court erred by denying his motion
 for judgment of acquittal based on insufficiency of the evidence.  We
 reverse.
        The alleged victim received a call from defendant, who apparently
 wished to complain to her husband, a town selectman, about perceived
 injustices he had suffered at the hands of the town.  The caller identified
 himself, and the wife recognized his voice from several previous calls.
 Despite the wife's repeated attempts to convince defendant that she could
 not help him, the phone call lasted approximately twenty minutes.  The wife
 finally hung up when defendant stated something to the effect, "How would
 you like to be shot?"  Defendant was charged under { 1027(a)(ii), which
 criminalizes telephoning another and threatening "to inflict injury or
 physical harm to the person" if done with the "intent to terrify,
 intimidate, threaten, harass or annoy."  The information stated that
 defendant was "a person who with intent to intimidate telephoned another . .
 . and threatened to inflict physical harm."
      After the State rested at trial, defendant moved for judgment of
 acquittal on the ground that the State had failed to prove that he had the
 requisite intent at the time the call was placed.  In denying defendant's
 motion, the court ruled that intent should be measured at the time the
 threat was made.  Defendant then rested.  He renewed his argument prior to
 the court's charge, but the court again rejected his interpretation of the
 statute and gave an instruction on intent in accordance with its earlier
 ruling.  After some deliberation, the jury foreman indicated that the jury
 was having difficulty reconciling the court's instruction on intent with the
 statutory language.  The court then stated that, as a matter of law, "intent
 must be measured at the time the words were spoken, not at the time the
 telephone call was made or immediately prior to it."  The jury returned a
 guilty verdict shortly thereafter.
      Section 1027(a) of Title 13 was added in 1967 in response to concern
 over increased use of the telephone as a vehicle to harass persons.  Hearing
 on H-42 Before the House Judiciary Committee, January 18, 1967, microfilm
 no. F-671, at 1-2 (statement of representative of telephone company that
 requested bill).  Similarly worded statutes exist in many other
 jurisdictions, see Annotation, Validity, Construction, and Application of
 State Criminal Statute Forbidding Use of Telephone to Annoy or Harass, 95
 A.L.R.3d 411 (1979) [hereinafter Use of Telephone to Annoy or Harass],
 including Arizona, whose telephone harassment statute served as a model for
 { 1027.  Hearing on H-42, supra, at 4-5 (statements of deputy attorney
 general and telephone company's attorney).
      All of the jurisdictions that have addressed this issue, including
 Arizona, (FN1) have concluded that specific intent under these statutes is
 measured at the time the call is placed.  See, e.g., Gormley v. Director,
 Conn. State Dep't of Probation, 632 F.2d 938, 941-42 (2d Cir. 1980)
 (interpreting similarly worded Connecticut statute); State v. Hagen, 558 P.2d 750, 753 (Ariz. Ct. App. 1976); State v. Gattis, 730 P.2d 497, 502
 (N.M. Ct. App. 1986).  The reason for the consensus on this point is clear.
 The statutes were drafted to respond to a concern that they might
 unconstitutionally infringe upon protected speech.  See, e.g., Walker v.
 Dillard, 523 F.2d 3, 4-5 (4th Cir. 1975) (Virginia telephone harassment
 statute determined to be facially overbroad because it regulated speech
 rather than conduct).  Indeed, the language of the telephone harassment
 statutes, as well as the courts' interpretations of that statutory language,
 are intended to make the statutes impervious to overbreadth challenges
 grounded on the First Amendment.  See People v. Klick, 362 N.E.2d 329, 331
 (Ill. 1977) (legislature has attempted to avoid infringing on protected
 speech by making the call itself the criminal act); Use of the Telephone to
 Annoy or Harass, supra, at 415-16.
      Thus, the courts have responded to overbreadth challenges by holding
 that the statutes proscribe conduct rather than speech.  As the Arizona
 Court of Appeals stated:
           By specifying the intent with which the call must be
         made and the nature of the language prohibited, the
         statute clearly demonstrates that the prohibited
         activities find no protection under the First Amendment.
         . . .

           We cannot conceive that the State is abridging
         anyone's First Amendment freedom by prohibiting
         telephone calls . . . that threaten physical harm,
         provided such calls are made with the intent specified
         in the statute.
 Hagen, 558 P.2d  at 753 (emphasis in original).  The reasoning of other
 courts has been the same.  See Gormley, 632 F.2d  at 941-42 ("Clearly the
 Connecticut statute regulates conduct, not mere speech.  What is proscribed
 is the making of a telephone call, with the requisite intent and in the
 specified manner."); Gattis, 730 P.2d  at 502 (by focusing on intent at time
 call is made, New Mexico statute proscribes conduct rather than speech).
      The State argues that such a holding would frustrate the purpose of the
 statute because it would be impossible to prove a caller's intent at a time
 before the actual threat.  We disagree.  Intent is usually inferred from
 circumstances rather than shown by direct proof.  Caldwell v. State, 337 A.2d 476, 484 (Md. Ct. Spec. App. 1975) (construing telephone harassment
 statute).   The intent to make a threatening phone call can be inferred from
 the actions, conduct or words of the defendant.  People v. Cooper, 336 N.E.2d 247, 249 (Ill. App. Ct. 1975); Gattis, 730 P.2d  at 503; see Lusch v.
 State, 356 A.2d 277, 283 (Md. Ct. Spec. App. 1976) (circumstances
 surrounding repeated calls to public official were sufficient for jury to
 conclude that calls were made with intent to harass).
      The overriding objective of statutory construction is to declare the
 intent of the Legislature.  State v. Yudichak, 147 Vt. 418, 420, 519 A.2d 1150, 1151 (1986).  Where the meaning of a statute is plain on its face, the
 statute must be enforced according to its express terms.  Heisse v. State,
 143 Vt. 87, 89, 460 A.2d 444, 445 (1983); see Yudichak, 147 at 420, 519 A.2d 
 at 1151 ("We presume that the plain, ordinary meaning of statutory language
 is intended.").  Section 1027(a) makes it unlawful for a "person who, with
 intent to terrify, intimidate, threaten, harass or annoy, telephones another
 and . . . threatens . . . harm."  Thus, the plain meaning of the statutory
 language, like the statute's legislative history, indicates that intent
 should be measured at the time the person telephones.  Accordingly, we hold
 that the intent element of { 1027(a) is measured at the time the telephone
 call is made.  In light of our holding, the court's instruction on intent
 was erroneous, and the conviction must be reversed.
      Because defendant also objected to the court's denial of his motion for
 judgment of acquittal, we must determine whether the matter should be
 remanded for a new trial.  The standard we employ is whether, when viewed
 most favorably to the State, the evidence is sufficient to convince a
 reasonable trier of fact that all the elements of the crime are satisfied
 and the defendant is guilty beyond a reasonable doubt.  State v. Elkins,
 155 Vt. 9, 17-18, 580 A.2d 1200, 1204 (1990).  At the outset in this
 determination, we reject defendant's contention that the statement -- "How
 would you like to be shot?" -- is not covered by the statute because it was
 an equivocal question rather than a threat to inflict physical harm.  The
 jury could conclude that the statement constituted a threat.
      The more difficult question is whether the evidence on intent was
 sufficient to withstand the motion for judgment of acquittal.  Although it
 is a close question, we conclude that a reasonable jury could not have
 determined that defendant made the call with the intent to intimidate.  The
 wife testified that defendant had made several prior calls, but there was no
 testimony regarding the number or nature of those calls other than that they
 involved complaints.  The first thing defendant did when the wife answered
 the instant call was to identify himself and ask to speak to her husband.
 The wife testified that when she informed defendant that her husband was not
 home, defendant called her a liar.  Despite this comment by defendant early
 on in the conversation, the wife's testimony indicated that defendant was
 initially civil, but that the tenor of the call changed as their discussion
 continued.  According to the wife, defendant became more and more angry as
 he complained about the various ways the town had harassed him.  Finally, at
 the end of twenty minutes, defendant made the threatening comment.  The wife
 did not recall the general context in which the comment was made or what
 she said immediately prior to the comment.  The State concedes in its brief
 that the call was made "apparently for a legitimate purpose."
      The fact that defendant identified himself, that he wished to speak to
 someone other than the person he eventually threatened, or that he had a
 legitimate purpose for making the call is not determinative of whether he
 placed the call with an intent to intimidate.  The threat need not be
 anonymous and there need not be any particular targeted victim.  Further,
 the fact that defendant called with a legitimate purpose in mind does not
 foreclose the possibility that there was also an unlawful intent behind the
 call.  Unlike some statutes in other jurisdictions, our statute does not
 require that the call be made "solely" to harass or threaten another.
 Compare State v. Badiner, 412 N.W.2d 810, 811 (Minn. Ct. App. 1987) (though
 the defendant's stated purpose in making numerous calls was to stop noise in
 apartment above him, court affirmed telephone harassment convictions because
 Minnesota statute does not require calls be made "solely" to harass) with
 State v. Patterson, 534 S.W.2d 847, 851-52 (Mo. Ct. App. 1976) (state failed
 to show that purpose of repeated complaining calls to city clerk was "solely
 to harass," as required by statute).
      When we consider these facts coupled with the wife's testimony that
 the tenor of the call grew increasingly hostile as it continued and that the
 threatening statement was not made until the end of the call, we conclude
 that a reasonable jury could not have found that defendant made the call
 with an intent to threaten. (FN2)
      Reversed.
                                FOR THE COURT

                                _____________________________________________
                                Associate Justice



FN1.    Because the cited Arizona case was decided after Vermont enacted 13
 V.S.A. { 1027, there is no presumption that the Legislature adopted the
 construction of the Arizona statute provided by that case.  See Hartnett v.
 Union Mut. Fire Ins. Co., 153 Vt. 152, 154-55, 569 A.2d 486, 487 (1989);
 State v. Szarkowitz, 460 N.W.2d 819, 823-24 (Wis. Ct. App. 1990).
 Nonetheless, the case is persuasive.  See State v. Francis, 151 Vt. 296,
 307-08, 561 A.2d 392, 398-99 (1989) (adopting 1979 holding of Massachusetts
 court interpreting statute which served as model for Vermont statute enacted
 in 1973).

FN2.    Because the information charged that defendant telephoned another
 with an intent "to intimidate," we need not consider whether the evidence
 was sufficient, as a matter of law, for a jury to find that defendant made
 the phone call with an intent to "harass or annoy."  13 V.S.A. { 1027(a).