State v. Hall

DURHAM, J.,

dissenting.

Without question, defendant committed serious criminal conduct when he entered the restaurant, told the cashier to put the restaurant’s money into his bag, and fled. The legal question before the court is whether the evidence was sufficient to support the charge of robbery in the third degree. The parties disagree about whether the evidence would permit a jury to find beyond a reasonable doubt that, in the course of committing theft, defendant “threatened] the immediate use of physical force upon another person” within the meaning of ORS 164.395(1).1 The task of statutory interpretation is particularly important here because the statutory requirement of proof that the perpetrator “use[d] or threaten[ed] the immediate use of physical force upon another person” while committing theft is common to all statutes that define the degrees of robbery. See ORS 164.405(1); ORS 164.415(1).

In view of the importance of a proper legal analysis of that question, the opinion offered by the majority is a disappointment. Two critical methodological mistakes, identified below, lead the majority into legal error. Because the majority’s errors concern methodology, and because the majority opinion does not clarify the point, the reader is left to guess whether this case exhibits an analysis that affects only this case or, instead, represents a change in the way that the court goes about resolving statutory interpretation and sufficiency of evidence problems. In either case, the majority’s rationale is incorrect.

The majority’s first error occurs in its attempt to interpret the word “threaten.” The majority properly quotes the following dictionary definition of the verb “threaten”:

*576“1: to utter threats against: promise punishment, reprisal, or other distress to * * * 2 * * *: to charge under pain of punishment: WARN * * * 3 : to promise as a threat: hold out by way of menace or warning * * * 4a : to give signs of the approach of (something evil or unpleasant): indicate as impending : PORTEND * * * b : to hang over as a threat: MENACE * * * 5 : to announce as intended or possible * * * ”

Webster’s Third New Int’l Dictionary, 2382 (unabridged ed 1993).

From that definition, the majority draws the conclusion that the act of threatening another can be explicit or implicit. I agree with that conclusion. For example, if defendant had displayed a clenched fist to Ahyek, that would satisfy the requirement of the robbery statute that he “threaten” to use force on another person immediately, even if he made no explicit statement that he would strike her if she failed to comply with his demands.

Having observed that the act of threatening may be explicit or implicit, the majority ceases its analysis of the definition of the term “threaten.” The majority turns, instead, to the definition of the term “threat,” finds further support for its already-stated conclusion that a threat may be explicit or implicit, and concludes that an “implicit” threat is “something that by its nature or relation to another announces that a person’s welfare is in danger.” 327 Or at 573. That analysis is flawed.

The term set forth in ORS 164.395(1) is the verb “threaten,” not the noun “threat.” A verb expresses action. Every usage in the dictionary for the verb “threaten” states that that term describes communicative action, that is,

“to utter threats * * * [to] promise punishment * * * to charge under pain of punishment: WARN * * * [to] hold out by way of menace or warning * * * to give signs of the approach of (something evil or unpleasant) : indicate as impending : PORTEND * * * to hang over as a threat : MENACE * * * to announce as intended or possible.”

Webster’s at 2382 (emphasis added). The emphasized portions of the dictionary definition deserve analysis, but the *577majority ignores them. Those portions of the definition demonstrate that the statutory term “threaten” requires proof of communicative action by defendant that, by word or conduct, utters, warns, promises, portends, or menaces the immediate use of physical force upon another person.

The majority’s attempt to analyze the noun “threat” in this context is misleading. The word “threat” does not appear in the statute. The majority’s effort improperly draws the court’s attention away from the statutory term that the court must interpret.

Ultimately, the majority adopts definitional reasoning that can only be described as circular. First, it defines “ ‘implicit’ threat” as “something” that announces a threatening message. The noun “threat” is a “something,” but saying so does not advance the legal interpretation of the verb “threaten.” Second, the majority says that an “implicit” threat is one that arises from something that “by its nature or relation to another announces that a person’s welfare is in danger "Hall, 327 Or at 573 (emphasis added). The majority does not quote the illustrations that accompany the portion of the definition of “threat” on which it bases that statement. The full definition states:

“2 : something that by its very nature or relation to another threatens the welfare of the latter <the crumbling cliff was a constant [threat] to the village below> «economic depressions constitute a major [threat] to party hegemony— C.A.M. Ewing>.”

Webster’s at 2382. Those illustrations demonstrate that the usage of “threat” on which the majority relies has nothing to do with defining threatening conduct by a person and furnishes no assistance in identifying the distinction, on which the majority places heavy reliance, between an explicit and an implicit announcement of a threat. The majority’s attempt to analyze the definition of “threat” leaves it no closer to an explanation of why defendant’s behavior meets any of the dictionary definitions of “threaten.”

Moreover, in creating its paraphrased definition of an “implicit” threat, the majority replaces the dictionary’s verb “threaten” with the verb “announce.” Those terms are *578synonyms. Taken together, they illustrate my point. The statute requires some form of communicative behavior that conveys the actor’s intention immediately to use physical force. In my view, any word or action that announces the required message, either explicitly or implicitly, would suffice to support a conviction. Although the majority’s definition of an implicit threat expressly requires conduct that announces the message described in the statute, the majority fails to apply its own definition. The majority never identifies the word or act by defendant that announced his intention to use force immediately during the episode. The majority’s approach simply dodges defendant’s argument and necessarily will mislead or confuse judges and lawyers who must apply the majority’s definition in the future.

There is, however, a more serious problem beneath the surface of the majority’s attempt to analyze statutory text. Ordinarily, when it considers dictionary definitions of statutory terms, the court evaluates all relevant definitions and endeavors to draw meaning from all of them. The premise for that exercise is that the definitions—all of them—may disclose the plain, natural, and ordinary meaning of the statutory term in question. If the court can discern a statutory term’s plain meaning, and nothing in the statute’s context creates a plausible doubt about whether the legislature intended that meaning, the court will adopt that plain meaning as the correct interpretation of the statutory term. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (in analyzing statutory text, words of common usage should be given their plain, natural, and ordinary meaning; if the legislature’s intent is clear from an analysis of text and context, further inquiry is unnecessary).

Without explanation, the majority adopts a different approach here. It conducts no analysis of the meaning conveyed by each of the dictionary definitions of “threaten.” As noted, those definitions uniformly require communicative action, that is, some act that, in this context, conveys the threat of the immediate use of physical force on another person. Instead, the majority selects a single definition of a different term, “threat,” i.e., “something that by its very nature or relation to another threatens the welfare of the latter.” Aside from substituting the word “threaten” with the word *579“announce” in its definition of an “implicit” threat, the majority never returns to the long list of other definitions of “threaten” that all require some form of communicative action to convey the threat. Instead, the majority treats its alteration of one definition of the noun “threat” as the plain meaning of the verb “threaten.” That is not how this court determines the plain meaning of a key term in a statute.

The majority’s approach indicates, incorrectly, that this court will determine a statutory term’s plain meaning by examining only one dictionary usage even though other usages listed in the dictionary are relevant and more completely and accurately describe the term’s plain meaning. The majority never explains why it declines to consider and analyze the complete definition of the statutory term “threaten.” In short, the majority ceases the task of statutory interpretation long before that work is done.

One example illustrates my point. In State v. Chakerian, 325 Or 370, 938 P2d 756 (1997), the court interpreted the phrase “tumultuous and violent conduct” in ORS 166.015. The court quoted and analyzed all relevant dictionary definitions for the terms “tumultuous,” “violent,” and “conduct.” Chakerian, 325 Or at 377-78. The court concluded that the definitions conveyed common and well-understood meanings, and that the statutory context confirmed that the legislature intended to adopt those meanings. Id. at 379-80. Only after conducting that complete analysis did the court conclude that the statute’s meaning was clear. Id. at 380.

The majority’s mistake in statutory interpretation leads to the second methodological error concerning the assessment of substantial evidence to support the verdict. The majority correctly concludes that “[w]hether a person implicitly threatens another in the course of an encounter depends on the reasonable inferences that the factfinder can draw from that encounter.” Hall, 327 Or at 573. That test requires an evaluation of defendant’s communicative actions in the restaurant, such as his orders and gestures to Ahyek. In my view, none of those actions explicitly or implicitly communicated, or even referred to, any plan or intention by *580defendant to use force on Ahyek, either immediately or at any other time.

The majority points instead to facts that describe the atmosphere of the crime, including the time of day and defendant’s manner of dress. I agree that a person’s clothing can convey information about the wearer in a variety of circumstances (e.g., a gang affiliation), but nothing in the record about defendant’s clothing, when considered alone or in the context of defendant’s communicative actions and the time of day, conveyed the specific threat that ORS 164.395 requires.

The majority ultimately concludes that its speculative guesses about the potential for violence from defendant’s crime constitute evidence that defendant did threaten to use force during his crime. I am aware of no precedent that approves the assessment of substantial evidence of threatening conduct in that manner, and the majority cites none.

The statutory requirement that defendant “threaten” the immediate use of physical force calls for an evaluation of evidence in the record about what defendant did to determine whether he conveyed the required threat. That requirement does not authorize the court to fabricate hypothetical scenarios about what defendant might have done if the victim had not complied with his directives. To state the obvious, the record contains no evidence about other possible reactions by either defendant or Ahyek because those reactions never happened. The majority’s claim that it is drawing “reasonable inferences” about defendant’s conduct cannot supply the missing link between the act that the statute requires (“threatens”) and the evidence in this case. The rationale offered by the majority to support its result fails to withstand legal analysis. The Court of Appeals captured my point precisely:

“* :¡; * ^ j^g very ieast, however, an ‘implied threat’ must mean something more than the circumstantial potential for violence that exists in every personal theft. Otherwise, ‘threatens the immediate use of physical force upon another person’ would, as a practical matter, be read out of the statute. Accord ORS 174.010 (in construing a statute, a court shall not ‘insert what has been omitted, or [ ]omit what has been inserted’).
*581«‡ $ ‡ ‡ ‡
“It cannot be gainsaid that here, as in every personal theft, there was a generic potential for violence. That circumstantial potential is not, however, sufficient, without more, to establish the statutorily prescribed threat of the ‘immediate use of physical force upon another person.’ ”

State v. Hall, 149 Or App 358, 366-67, 942 P2d 882 (1997) (footnote omitted).

For the reasons stated above, I conclude that the Court of Appeals did not err in deciding that the state failed to submit evidence from which a jury could find, beyond a reasonable doubt, that defendant had threatened anyone with the immediate use of physical force. Ahyek reasonably could be frightened by defendant’s criminal behavior and by the atmosphere surrounding the incident. However, I am compelled to agree with the Court of Appeals that that understandable fear does not serve as a substitute for proof that defendant threatened her with the immediate use of physical force as required by ORS 164.395(1).

I dissent.

The question here concerns the meaning of one element of the robbery statute, ORS 164.395(1). The question is not whether Oregon’s law should treat defendant’s conduct as “robbery” rather than “theft,” as those terms commonly might be understood. The legislature possesses broad authority to include a host of criminal activities, including defendant’s conduct here, within a statutory definition of robbery if it so desires.