State v. Norgard

*192RIGGS, J. pro tempore.

Defendant appeals from his conviction for telephonic harassment, ORS 166.090, assigning error to the trial court’s denial of his motion for judgment of acquittal. We affirm.

The facts are not in dispute. Although the victim repeatedly had forbidden defendant from telephoning her, defendant persisted in doing so and in writing her letters. The incident that led to this prosecution occurred months after the victim first told defendant to stop calling her. Defendant telephoned the victim’s home and left a message on her answering machine, stating that he had posted her photograph on the internet and that the photograph had received numerous “hits.” The victim listened to the message in its entirety and was highly upset by it. Defendant was charged with the crime of telephonic harassment under ORS i66.090a.xb).1

The question in this appeal is whether the state has established that defendant caused the victim to “answer” her telephone within the meaning of the statute. Defendant argues that the state has failed to prove that the victim answered the telephone, because defendant’s call was recorded by the victim’s answering machine, and the victim heard the harassing message through that machine after defendant had hung up. The state responds that the victim answered defendant’s telephone call despite her use of an answering machine.

We agree with the state that defendant caused the victim to answer the harassing call. The victim attached a machine to her telephone that completed the connection between her telephone and defendant’s, played a recording of her voice to defendant, amplified defendant’s voice into the victim’s house and recorded any message defendant left. *193When the victim pushed a button on the machine, she heard the message played back. Replaying a message recorded on an answering machine may be a delayed answer, but it is an answer nonetheless.The fact that the victim was not holding her telephone to her ear at the moment that defendant was speaking does not lessen the harm she suffered and should not be the deciding factor in this case. Indeed, it is likely that the people the legislature most intended to benefit when it enacted ORS 166.090(l)(b) — victims of chronic, continuous telephone harassment — are also the people most likely to screen their calls through an answering machine or similar device. Defendant’s proposed reading puts those victims beyond the reach of this statute, unless they are willing to withstand direct telephone connections with their harassers.

Our holding is consistent with our only previous case addressing the meaning of “answer” under ORS 166.090-(l)(b). In State v. Lopez, 151 Or App 138, 949 P2d 1237 (1997), rev den 326 Or 465 (1998), the victim, after recognizing the defendant’s telephone number on her caller identification box, either let the telephone ring until the defendant hung up or had her husband answer the telephone for her. In reasoning that the state had failed to establish that the defendant had caused the victim to answer the telephone, we concluded, after discussing the meaning of “answer” under the interpretive framework of PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993):

“We decline to adopt the ‘agency theory’ promoted by the state. If the victim is not subjected to the message or voice of the harasser, regardless of whether a harm occurs, the victim cannot be considered to have answered the telephone. Thus, as the facts indicate here, the victim’s husband answered the telephone for her during the time charged in the crime or she recognized the number on her caller identification box and refused to answer. The trial court erred in concluding that the jury could find that the victim answered the telephone as required by ORS 166.090(l)(b).” Lopez, 151 Or App at 141 (emphasis added).

Central to our holding in Lopez was the fact that the victim was “not subjected to the message or voice of the harasser.” Id. Here, by contrast, the connection was completed, defendant projected his voice and unwanted message *194into the victim’s home, and the victim was subjected to that voice and was harmed by it. Lopez stands for the proposition that a victim must be subjected to a harasser’s voice and message to have “answered” a harassing call under ORS 166.090(l)(b). Because that occurred in this case, Lopez supports our holding that the victim answered defendant’s harassing telephone call.

Defendant’s proposed reading of the statute would require us to conclude that, where defendant did the act proscribed by ORS 166.090(l)(b), and the victim suffered the harm that the statute was intended to address, no prosecution under the statute is possible. We are unwilling to read the statute to produce that result.

Affirmed.

ORS 166.090(l)(b) provides:

“(1) A telephone caller commits the crime of telephonic harassment if the caller intentionally harasses or annoys another person:
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“(b) By causing such other person’s telephone to ring and causing such other person to answer it, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone.”