State v. Johnson

340 September 27, 2023 No. 505

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
KRISTOFER MICHAEL JOHNSON,
Defendant-Appellant.
Yamhill County Circuit Court
18CR80923, 18CR02723;
A175405 (Control), A175406

Ladd J. Wiles, Judge.
Submitted February 2, 2023.
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.