State v. Willy

963 P.2d 739, 155 Or. App. 279, 1998 Ore. App. LEXIS 1262
CourtCourt of Appeals of Oregon
DecidedJuly 22, 1998
Docket9603281CR; CA A96785; 9603283CR; CA A96786; 9603282CR; CA A96787
StatusPublished
Cited by5 cases

This text of 963 P.2d 739 (State v. Willy) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Willy, 963 P.2d 739, 155 Or. App. 279, 1998 Ore. App. LEXIS 1262 (Or. Ct. App. 1998).

Opinion

LANDAU, P. J.

Defendants appeal judgments of conviction for disorderly conduct. ORS 166.025. They assign error to the trial court’s denial of their motion for judgment of acquittal, based on the state’s failure to prove that their conduct actually disrupted more than two people. We affirm.

We state the facts in the light most favorable to the state and review those facts to determine whether a rational trier of fact could have found defendants guilty beyond a reasonable doubt. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den 514 US 1005 (1995).

On November 30, 1996, the three defendants took four rifles, one shotgun, four handguns, and 360 rounds of ammunition to private property owned by defendant Willy’s family. Defendants spent the evening and early morning hours shooting the guns, firing at least 125 rounds of ammunition. Melinda and Charles Radford, who live across the road and 800 feet away from where defendants were shooting, were disturbed by the loud gunfire, and they heard bullets pass through trees near their house. Melinda Radford was frightened, and neither Melinda nor Charles could sleep. Charles Radford called 9-1-1, but officers did not respond until the next morning when he called again to report that the shooting had not stopped. James Bursell, who lived approximately two miles away from where defendants were shooting, also heard the gunfire, but testified that he was not particularly alarmed or annoyed by it. Michael Moncardini had been annoyed by gunfire late at night on the Willy property on previous occasions. He had talked to defendant Willy about it and asked him to stop and had called 9-1-1. On November 30, however, Moncardini was away from home and did not hear the gunfire.

Defendants were charged with disorderly conduct. At the close of the state’s case, they moved for judgments of acquittal on the basis of insufficiency of the evidence. Defendants argued that the state failed to prove that their conduct actually annoyed or alarmed more than two people, as required by decisions of this court construing the disorderly conduct statute. The court denied the motion.

[283]*283On appeal, defendants argue that the trial court’s decision cannot be reconciled with three decisions from this court—State v. Clark, 39 Or App 63, 591 P2d 752, rev den 286 Or 303 (1979); State v. Stubblefield, 42 Or App 201, 600 P2d 469 (1979); and State v. Gilbert, 48 Or App 419, 617 P2d 288 (1980)—that hold that evidence of actual inconvenience, annoyance or alarm to a substantial group of people is required to prove disorderly conduct. The state argues that our decisions in Clark, Stubblefield and Gilbert are incorrect and that, under our more recent decision in State v. Hund, 76 Or App 89, 708 P2d 621 (1985), rev den 300 Or 477 (1986), no such proof is required.

ORS 166.025 provides, in pertinent part:

“(1) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:
^
“(b) Makes unreasonable noise[.]”

Whether that statute requires proof that defendants actually caused inconvenience, annoyance or alarm to the public is a question of statutory construction. In accordance with the interpretive methodology required by PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), we construe the statute first by reference to the text in its context and then, if necessary, by reference to legislative history and other interpretive aids.

The text of the statute does not, by its terms, require proof of actual public inconvenience, annoyance or alarm to any particular number of persons. It requires proof that defendants either intended to cause one of those conditions or recklessly created a risk of inconvenience, annoyance or alarm to the public, and it requires proof that defendants made unreasonable noise. Nothing in the language of the statute lends support to defendants’ contention that there must be proof that defendants actually caused public inconvenience, annoyance or alarm. In candor, however, we must acknowledge that our decisions are not altogether consistent on the point. We turn, then, to those cases.

[284]*284In Clark, the defendant challenged ORS 166.025 on vagueness grounds. We began by observing that the statute was derived from New York Penal Law section 240.20. We then referred to a canon of construction that “[i]n borrowing a statute from another state, the legislature is assumed to adopt the then existing case law interpretation of that statute in the state of origin[.]” Clark, 39 Or App at 65. We cited three decisions of various New York trial courts, Seymour v. Seymour, 56 Misc 2d 546, 289 NY S2d 515 (1968); People v. Coleman, 47 Mise 2d 355, 262 NY S2d 508 (1965); and People v. Broadbent, 20 Misc 2d 547, 192 NY S2d 889 (1959), for the proposition that the disorderly conduct statute of that state required proof that the defendant actually caused public inconvenience, annoyance or alarm. We then stated:

“The New York cases narrow the meaning of the statute to this extent: A defendant’s act, no matter how reprehensible to any particular person, must disrupt a group of persons or a portion of the community at large and we accept that construction.”

Clark, 39 Or App at 66. With that narrowed construction, we concluded that the statute posed no vagueness problem; we did not address whether the statute would have been unconstitutionally vague without the narrowing construction. Id at 423.

In Stubblefield, the defendant was charged with reckless endangering. The complaint specifically charged him with unlawfully creating a substantial risk of serious physical injury to two persons. At trial, he unsuccessfully contended that he was entitled to a jury instruction on disorderly conduct as a lesser-included offense. We affirmed. We began by citing Clark for its holding that ORS 166.025(1) requires that the defendant “ ‘must disrupt a group of persons or a portion of the community at large.’ ” Stubblefield, 42 Or App at 204 (quoting Clark, 39 Or App at 66). Focusing on the “group of persons” language, we then held that, because the complaint charged the defendant with putting at risk only two persons, his conduct “was not the type of ‘public’ risk” required under Clark. Id. at 205.

Finally, in Gilbert, the defendant challenged the sufficiency of the evidence of disorderly conduct on the ground [285]*285that the state had proved that only two persons had been inconvenienced, annoyed or alarmed by his conduct, although the defendant’s conduct occurred on a public sidewalk. We reversed, citing Clark and Stubblefield,

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Cite This Page — Counsel Stack

Bluebook (online)
963 P.2d 739, 155 Or. App. 279, 1998 Ore. App. LEXIS 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-willy-orctapp-1998.