STATE v. HAMBRICK (2026)

This is a criminal appeal in which defendant appeals from a judgment of conviction for stalking pursuant to ORS 163.732 (Count 1); menacing pursuant to ORS 163.190 (Count 2); and attempted coercion pursuant to ORS 163.275, ORS 161.405 (Count 3). Defendant raises two assignments of error, arguing that the trial court erred by denying his motions for judgment of acquittal (MJOA) on the stalking and menacing charges. Defendant argues that the communications at issue were equivocal and protected free speech under State v. Rangel, 328 Or 294, 306, 977 P2d 379 (1999). For the reasons explained below, we conclude that the trial court did not err in denying defendant's motions because a reasonable trier of fact could have found, based on the context, that at least two of defendant's communications with the victim were repeated and unwanted contacts under ORS 163.732(1) (stalking) and that defendant intentionally placed the victim in fear of imminent serious physical injury under ORS 163.190(1) (menacing). Accordingly, we affirm.

I. FACTS

As we will discuss in greater detail below, the circumstances surrounding defendant's communications in June and July 2022 are highly relevant to our analysis. We will thus discuss the brief history of the parties’ interactions.

The victim, D, lives in Hillsboro with her husband and children. D was born and raised in Texas and is the daughter of a famous cardiologist.¹ In November 2021, D received a letter signed with the name “Danny” and a thumb drive from defendant, a person she did not know and with whom she had never communicated, in which he explained in a “confusing” manner that he knew D's father. D did not feel threatened and simply discarded the letter and the thumb drive.

On May 7, 2022, D received another letter, also from “Danny.” D did not feel threatened by the second letter—it was rambling and incoherent but did not contain threats. The letter referred to a timeframe of “2 months,” but D did not know what, if anything, that meant. D kept the letter because she thought it was “strange” and “unsettling,” but she did not think there was any “reason to call anyone” to report it.

On May 23, 2022, D received a third letter, again signed “Danny,” from defendant dated May 22, 2022, which contained the following:

“You want to be a baby boo, I want that also, I want this in a way that makes you feel confident, sexy, attractive, [and] way way more imaginative than your Mother. There is tape under my desk [and] your father told me, and do not think this image in my head didn't have anything to do with this. We are in a unique situation. If you want to dress up really really slutty, * * * Wear something sluttier than your Mother, from the car to my door that makes you feel confident, ask me to show you the patent material for your father and then ask me to do that which you've wanted me to do most, knowing about the ring [and] Harry [and] June, kind of take the initial shine off. But you can wear my Arsenal jersey on the sofa if you do, and that makes me remember the time you said ‘It was me,’ and we both were furious about that.

“How does a woman feel comfortable? When she is getting fucked like silly and it isn't till she's raped in some cultures. I have never liked that word as it means anger to me, I will allow you to force me to do whatever makes you feel like my [D's first name], even if that means I let you go nuts sometimes. That is love.”

The letter also suggested that defendant had a vague, but hostile, relationship with both of D's parents. D felt the letter was “very perverse to read * * * and disturbing.”

On June 9, 2022, D received a FedEx delivery that required her signature. She signed for the large envelope before realizing it was from defendant. When she saw it was from defendant, she asked the delivery driver to take it back.

On June 20, a bouquet of roses arrived at D's home with an unsigned note that said, “Would you accept a rose?” D believed that the roses were from defendant; she checked the FedEx website and learned that the rejected envelope had been returned to defendant that day. D felt “increasingly worried and uncomfortable” because the letters were getting more frequent, and she had now received a package. A couple of days later, D received a fourth letter from defendant dated June 23, 2022, which stated, among other things:

“Lady [D],

“I have thought about it. Prayed about it. May, my puppy was spayed Tuesday and we really have two options. Marion [and] Katrin's way, I get mad, you get sad, or prisoner exchange. You saw my night shirt I sleep in. I got them for free. In prisoner exchange, it is simple, He works for me—not to exceed the time she works for you. I need one of your girls, to shut my sister's mother in law up. If I can get a beautiful Korean girl on a table near Clemson South Carolina before the end of this week, I die happy. If she is dead, like Katrin, my mom gets to ask herself for a little while how you and I walked in one day and sat a Korean girl on a table, and will tape that S, so so funny.

“* * * * *

“I want this before the end of this month. I want July to be a happy month July for you. * * * [G]et a sitter for the girls, or bring them, your call, I want this before next week.”

As will be discussed in more detail below, D believed that that letter indicated that defendant was either in Oregon or going to travel to Oregon shortly, and she believed that it was threatening in nature.

On June 29, D received a call from a 737 area code, which is a Texas area code. She blocked the number. On July 2, D unblocked the number because she suspected that “Danny” was going to travel to Oregon, and she wanted to know if he did. Beginning at 12 a.m. on July 3, and “throughout the night,” D received several text messages, missed calls, and a voicemail. Those contacts were from a woman named Claudia who claimed to be defendant's girlfriend. D found the messages “alarming.” But she explained that “[t]here wasn't really anything specifically threatening to [her]” and she wondered if it was all a prank.

On July 3, 2022, D called the police nonemergency line. D shared the letters and other information and communications with the officers as they communicated with her throughout that day. At 9:30 that evening, D received a voicemail from “Dan” explaining that he was in Oregon, that he had just been released from jail, and that he was going to look for a hotel. D called the police again.

An hour later, D received a second voicemail from “Dan” in which he said he was stuck at the Fairfield Inn in room 315 because his car had been impounded. He warned D that he had “significant training as an assassin” and said that if D did not show up in person to his hotel in the next 24 to 48 hours he was going to go after D's loved ones.

D called 9-1-1 to report that defendant had threatened her. D called the police following the two voicemails because she was “alarmed” that the caller had travelled all the way to Oregon, and she feared for her safety. Hillsboro Officers Johnson and Koral investigated. They confirmed that a person named Daniel Hambrick lived in Texas. Johnson ran a criminal history check and learned that defendant had been arrested and released in Oregon on July 2, 2022, on an unrelated matter. Johnson then checked the Fairfield Inn in The Dalles and learned that a guest with defendant's name was staying there. Hillsboro police then asked The Dalles police to send someone to the Fairfield Inn to speak to defendant. Officer Kramer of The Dalles police met defendant at the hotel. Defendant explained to Officer Kramer that he was in Oregon traveling to Hillsboro to meet D because she was supposed to marry him. Kramer and defendant talked for approximately 30 minutes and touched on many random topics. Afterwards, Kramer did not believe that defendant was a threat to D. Kramer did not arrest defendant because he did not believe that he had probable cause that defendant had committed a crime.

When he learned that The Dalles police had not arrested defendant, Koral drove to The Dalles and contacted defendant. Defendant told Koral that he was in Oregon to “be with [D].” Koral arrested defendant.

Defendant was charged with stalking, menacing, and attempted coercion. He waived his right to a jury trial and was tried to the court. At trial, at the completion of the state's case, defendant moved for a judgment of acquittal on both the stalking and menacing counts. Defendant argued that his communications with D did not satisfy Rangel's requirements because neither communication constituted an unequivocal threat to D. The trial court denied the motions, stating that while the communications alone would not be sufficient, combined with defendant's behavior, the evidence was sufficient.

The court found defendant guilty as charged and sentenced defendant to 180 days in jail and 36 months of probation. Defendant appealed, challenging the trial court's denial of his MJOAs for stalking and menacing.

II. ANALYSIS

In reviewing the denial of an MJOA, we consider whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the state. State v. Rader, 348 Or 81, 91, 228 P3d 552 (2010).

A. The Stalking Charge

In his first assignment of error, defendant contends that the trial court erred by denying his MJOA on Count 1, stalking. Specifically, defendant argues that the letters, package, bouquet of flowers, and unsigned note that he sent to D did not constitute “true threats” and, therefore, the state failed to meet its burden of proving the crime of stalking.

Under ORS 163.732(1), a person commits the crime of stalking if:

“(a) The person knowingly alarms or coerces another person * * * by engaging in repeated and unwanted contact with the other person;

“(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; 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.”

ORS 163.730(1) defines “alarm” as “to cause apprehension or fear resulting from the perception of danger.” “Contact” includes but is not limited to “[s]ending or making written or electronic communications in any form to the other person,” as well as several other enumerated forms of expressive and non-expressive conduct. ORS 163.730(3).

The parties agree that when contacts are considered expressive communication—such as the speech or writing in this case—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, section 8, of the Oregon Constitution.² 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 Or at 303). However, “hyperbole, rhetorical excesses, and impotent expressions of anger or frustration” do not constitute threats under Rangel. Rangel, 328 Or at 303 (internal quotation marks omitted).

Equally important for our analysis is that we must view the communications “cumulatively,” being mindful that what “might appear benign when viewed in isolation can take on a different character when viewed either in combination with or against the backdrop of one party's aggressive behavior toward the other.” C. P. v. Mittelbach, 304 Or App 569, 577, 468 P3d 496 (2020) (internal quotation marks omitted).

1. The June 23, 2022 Letter

With that analysis in mind, we conclude that the June 23, 2022 letter qualified as a “contact” under ORS 163.732 because that letter instilled in D “a fear of imminent and serious personal violence” that was “objectively likely to be followed by unlawful acts.” See Rangel, 328 Or at 303. Defendant remonstrates that “the letter contained no true threats, i.e., no objective and unequivocal threat to inflict physical violence,” and that D “was not in apprehension of an imminent threat of physical violence.” But defendant's argument lacks accuracy and context. To begin, defendant inaccurately argues that the June 23 letter did not contain a temporal statement from which D could infer that any threat was “imminent.” That argument ignores that the letter stated that defendant had expectations that had to be fulfilled by the end of the week, and that he had planned for July to be “something special” for D, which was days away when she received the letter.

Regarding the nature of the threat, the context and escalation of the statements undermines defendant's arguments. First, D testified that she first received a letter from defendant in November 2021, and that she did not know who defendant was. According to D, she discarded the letter thinking it was a “scam” and the letter had not “seem[ed] threatening at that time.” Approximately six months later, D received a second letter from defendant which included personal information about D's family that D believed defendant “could have gotten * * * from anywhere, from reading about [D's family].” The letter also included the phrase “Your Danny is a bit slow sometimes, still have 2 months.” D explained that she did not know what that phrase meant at the time. D found that second letter to be “unsettling,” and she kept it “just in case there's more[.]” Thus, defendant's prior contacts, before the June 23 letter, provided an already disturbing context, including: obsessive behavior including gathering information about her family and location; discussing romantic and sexual relations despite being strangers and without her having provided any consent, and suggesting that he would engage in sexual relations with D against her will; and, finally, a vague deadline stated in a threatening manner: “[You] still have 2 months.”

Recalling the specifics of the June 23 letter, it stated:

“I have thought about it. Prayed about it. May, my puppy, was spayed Tuesday and we really have two options. Marion [and] Katrin's way, I get mad, you get sad, or prisoner exchange. You saw my night shirt I sleep in. I got them for free. In prisoner exchange, it is simple, he works for me, not to exceed the time she works for you.

“I need one of your girls, to shut my sister's mother in law up. If I can set a beautiful Korean girl on a table in near Clemson South Carolina before the end of this week, I die happy. If she is dead, like Katrin, my mom gets to ask herself for a little while how you and I walked in one day and sat a Korean girl on a table, and will tape that S, so so funny.

* * * * *

“I want all of this before the end of this month. I want July to be a happy July for you. * * * Get a sitter for the girls, or bring them, your call, I want this before next week.”

D stated that that letter to her “fe[lt] like there's some harmful intention.” D explained that her husband “is Korean,” and that her daughters “look Korean.” D was “very much on alert to receive this,” and although she did not know if defendant was “actually going to take action,” she “was a lot more alerted and worried about it.” When asked what she meant by “alerted,” D said that “it looks like [defendant] knows my—he knows—he seems to know more about me, about my family * * * the impression from this letter, whatever he has in mind is harmful. And why would he talk about my family like this?” When asked what she meant by “like this,” D clarified: “Like about having one of my daughters on the table that would make his, I think, his mother-in-law happy to see her like that.”

D also testified that defendant's reference in the letter to “I want this before next week” “added to [her] stress,” in light of defendant's earlier letters and packages he had sent to her home:

“And so, yes, I'm thinking, okay, yeah, July is coming up, I want this before next week. So that—it says ‘coming up.’ And then in his previous letter, he talked about in two months’ time. So there seems to be some sort of plan or some plan of his that if he really wanted to carry something out that it would happen in July. Right.”

That evidence is sufficient to permit a reasonable trier of fact to find that, in the totality of the circumstances, defendant's fourth letter to D constituted a “threat” that instilled in D “a fear of imminent and serious personal violence” that was “objectively likely to be followed by unlawful acts.” Rangel, 328 Or at 303; see also State v. Murphy, 306 Or App 535, 541-42, 475 P3d 100 (2020), rev. den., 367 Or 559 (2021) (contacts must be considered under the totality of the circumstances). We reject defendant's argument that the vagueness of defendant's message should lead us to conclude that the evidence was insufficient, as the vagueness itself, combined with the other content of defendant's messages, caused D to reasonably have a higher level of apprehension because of her inability to prepare for whatever defendant had planned.

Further, a reasonable trier of fact could have found that the threat was “imminent.” As we have previously explained, an imminent threat need not convey a risk of immediate harm. S. L. L., 267 Or App at 633. Instead, an imminent threat is “ready to take place” or “near at hand.” Id.; see also State 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)). And like other aspects of whether a statement is threatening, imminence is examined in the totality of the circumstances. See S. L. L., 267 Or App at 633; A.Z. v. Lange, 336 Or App 652, 657, 562 P3d 647 (2024) (concluding that evidence that the respondent lived in California and would need to travel to Oregon in order to carry out his threats did not, on that record, preclude the threat from giving rise to a fear of imminent harm that was objectively likely to be followed by unlawful acts). Defendant argues, and the dissent agrees, that our decision in State v. C. S., 275 Or App 126, 134, 365 P3d 535 (2015) requires us to find that the threats here were not imminent. 352 Or App at 324 (Shorr, P.J., dissenting). But we disagree that the context of C. S. is analogous. C. S. involved a minor child who did not demonstrate any independent capability to carry out the threats they were making to others, regardless of the specificity of the timing in the threats. C. S., 275 Or App at 134. Here, the context includes multiple references, beginning in May 2022, that defendant expected D to either consent to a relationship with him by July, or he would cause her or her family physical harm. Defendant's reference to wanting something “before next week” was certainly imminent, particularly because it was vague and yet very near in time, which is far more concerning for someone who is considering how to protect themselves and other family members.

Defendant's statements in the fourth letter also sufficed to permit a reasonable trier of fact to find that the victim had a reasonable apprehension or fear for the safety of her family. As noted, the text of the stalking statute requires proof that the victim has “reasonable apprehension” regarding personal safety or the safety of a family member as a result of the unlawful contacts. ORS 163.732(1)(c). For expressive contacts, Rangel requires the contact to “instill[ ] in the addressee a fear of imminent and serious personal violence.” 328 Or at 303. Rangel derived that requirement, in part, from the statutory definition of “alarm,” which “means to cause apprehension or fear resulting from the perception of danger.” ORS 163.730(1); see also Delgado v. Souders, 334 Or 122, 150, 46 P3d 729 (2002) (“In the context of communicative contacts, the term ‘alarm’ in * * * ORS 163.730(1) refers to causing apprehension or fear of personal violence.” (discussing Rangel; footnote omitted)).

D's testimony sufficed to permit a reasonable trier of fact to find that she was concerned, alarmed, and worried about defendant's threat. D testified that after receiving the fourth letter she was “very much on alert to receive this.” D testified that she believed that defendant had a plan to come to Oregon, or was in Oregon already, and that something was going to happen by the end of the week. Coupled with her testimony that she believed that defendant's plan was harmful, the evidence sufficed to prove that D was alarmed.

2. Defendant's voicemail

Defendant's second voicemail to D on July 3 also could have reasonably constituted a “threat” under Rangel. In that recording, defendant told D:

“I have rallied—this is [defendant]. This is for [D]. I need you to talk to me in person. I'm at the Fairfield nearest the correction facility. The room is number 315, three one five. Come alone, and I'll be fine, or else I'm going to begin engaging my Great Uncle Harry's assassin, and you don't want that to happen. I have significant training as an assassin.

“So unless you want me to start going after somebody or multiple people that you love, I would recommend that you basically show up in person in the next 24 to 48 hours. I have to be here until my car gets out of impound. Thank you. Bye.”

D described herself as “extremely alarmed,” after hearing that voicemail. She stated, “I didn't know how close he was. He said he was in Oregon. I thought, well, either way, if I don't do something, then I'm also putting other people in danger.” D called 9-1-1. When asked why she was concerned about putting other people in danger, D explained that “[defendant's] claiming to be a trained assassin, * * * and he—he's threatening, like, my direct loved ones. So one or more people he would harm.”

When asked if she was fearful for her “personal safety” or the safety of her family members, D answered: “Yes.” D was concerned that defendant could arrive at her home because he had her address, and “he's saying he's in Oregon. I didn't know at that time exactly where the Fairfield Inn was, but I didn't know how close he was.”

From that evidence, a reasonable trier of fact could have found that defendant's second voicemail constituted a “threat” that instilled in D a fear of imminent and serious personal violence that was objectively likely to be followed by unlawful acts if D failed to comply with defendant's demand. Defendant expressly told D that if she did not come “talk to me in person” within “24 to 48 hours” he would “start going after somebody or multiple people that you love;” that he would “be engaging my Great Uncle Harry's assassin,” and that he had “significant training as an assassin.”

Defendant contends that the second voicemail did not constitute a threat under Rangel because any harm was not “imminent.” Defendant does not appear to argue that his “24 to 48 hour” timeline was too long to be “imminent” under ORS 163.732. Instead, defendant argues that “the addressee must believe that the speaker had the ability to imminently carry out the threatened harm,” and D could not have had that belief here because “[d]efendant explained that his vehicle had been impounded and that he had to stay where he was until he retrieved it.” We disagree. A reasonable trier of fact could have found that defendant's threat did instill in D a fear of imminent serious physical violence because defendant's “24 to 48 hour” ultimatum may have been tied to when he could retrieve his car and leave the Fairfield Inn. As noted, in the second voicemail defendant told the victim: “I have to be here until my car gets out of impound. Thank you. Bye.” (Emphasis added.) Read in context, a reasonable factfinder could have found that defendant was demanding that D meet him at the Fairfield Inn before defendant could retrieve his car from impound; that is, in “the next 24 to 48 hours.” In the totality of the circumstances, defendant's threat to “start going after somebody or multiple people” that the victim loved was sufficiently “ready to take place” or “near at hand” to constitute an “imminent” threat. See S. L. L., 267 Or App at 633. Further, defendant had already demonstrated through his conduct that he was extremely eager to complete his plan, even though he had already been arrested in Oregon and had lost the use of his vehicle. Defendant had left his home state, was arrested under circumstances irrelevant to this appeal, was released without access to his vehicle, and still sought to find a hotel to execute the plan he had for D. In that context, it was reasonable for D to believe that defendant was determined to make physical contact with her, regardless of the roadblocks he might encounter.

Accordingly, because a reasonable factfinder could find that defendant engaged in at least two qualifying “contacts” under ORS 163.732, the trial court correctly denied defendant's MJOA on the stalking charge.

B. The Menacing Charge

Finally, we briefly address defendant's second assignment of error. Defendant argues that he was entitled to a judgment of acquittal on the menacing charge because “the statement was not credible to threaten serious injury,” and “because the threatened conduct was not imminent.”

Defendant was charged with one count of menacing based on the second voicemail he left for the victim on July 3, 2022. ORS 163.190(1) provides that “[a] person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” Here, a reasonable trier of fact could have found that defendant's second voicemail placed D in fear of imminent serious physical injury, because, as was discussed in detail above, a reasonable trier of fact could have found that defendant was imminently threatening D, and D's loved ones, with assassination, i.e., “serious physical injury.”

Defendant argues that his statement was merely “the kind of vague hyperbolic threat that does not sufficiently identify the nature of the threatened injury.” We disagree, and conclude that such a term is, in fact, highly specific. As D explained, she understood the term “assassin” to mean someone that kills people, and that is consistent with the ordinary meaning of the term, which Webster's defines as “one that murders either for hire or from fanatic adherence to a cause.” Webster's Third New Int'l Dictionary 130 (unabridged ed. 2002). Thus, it is not unreasonable to conclude that defendant—by claiming training as an assassin and threatening to “go after” D's loved ones—was threatening to kill those people, and, thus, was threatening them with “serious physical injury” as within the meaning of ORS 163.190(1). Further, we strain to imagine what alternative meaning of the word “assassin” defendant was communicating to D besides his ability to either cause serious physical injury or death to her or one of her loved ones. There is no reasonable circumstance that a stranger would say to another stranger—unsolicited—that they are a trained assassin unless they want to communicate that they have the ability to kill someone. To the extent that the statement was vague, in this context the vagueness would weigh against defendant, as it would only lead to a reasonable person imagining multiple ways defendant could have meant to cause death or injury. We do not read Rangel to protect clear threats of imminent violence if the declarant happens to obfuscate the exact nature of the harm they intend to inflict.

Defendant also argues that he was entitled to a judgment of acquittal on the menacing charge because he gave the victim “24 to 48 hours” to comply with his demand and, thus, any threat to the victim's loved ones was not “imminent” under ORS 163.190(1). Compare Dompeling, 171 Or App at 695-96 (threat that the youth would stab victim in her sleep, a vague but close at hand time, was sufficiently imminent even though youth did not have a knife when they made the statement), with C. S., 275 Or App at 133 (concluding that repeated, vague threats to several students by youth to inflict harm in the unspecified future were not imminent). We disagree. This case is like Dompeling, where a vague threat that the youth “thought about doing it while [victim] was in [her] sleep” was tied to a particular, yet also vague, time period that we considered imminent: in the victim's sleep, whenever that would occur. Dompeling, 171 Or App at 694. The threats here are also tied to a very specific, yet also vague, time period: 24-48 hours. Again, the vagueness here weighs against defendant because D could not know whether she and her family were in danger at the 24-hour mark or whether defendant would choose to “give her more time.” When a deadline is given that would trigger violence, such as the one here, that was palpably close in time considering how much defendant knew about D's family members and how difficult it would be for D to react in a way that could protect them, a reasonable trier of fact could readily find that defendant's threat was imminent. Defendant's demand that D “show up in person in the next 24 to 48 hours” unless she wanted him to “start going after somebody or multiple people that you love” was not vague or speculative. That threat, coupled with defendant's escalating behavior that had already led him to a decision to leave Texas and travel to Oregon to be closer to D and her family, was sufficiently “ready to take place” or “near at hand” to constitute an “imminent” threat. The trial court correctly denied defendant's MJOA.

Affirmed.

I write separately because I disagree in part with the majority's analysis, at least as it is applied under our current case law, regarding whether at least one of defendant's threats to D met the standard to be an imminent threat to support a stalking conviction under ORS 163.732(1). Because I would conclude that defendant's threats in his June 23, 2024, letter (also referred to as the “fourth letter” in the trial court) did not meet the standard for an “imminent” threat, I would conclude that the state did not present sufficient evidence to prove at least one of the two unwanted contacts required to prove stalking under ORS 163.732(1). Therefore, the trial court erred in denying the motion for judgment of acquittal on that charge. However, I agree with the majority that defendant's July 3, 2022, voicemail to D included an imminent threat and was sufficient to support the menacing conviction under ORS 163.190(1).¹ The trial court did not err in denying an acquittal on that charge. As a result, I respectfully dissent in part and concur in part.

I begin with my agreement with the majority's analysis. First, I agree that the threat to support both the stalking and menacing convictions in this case, which involves speech, must convey an “imminent” threat of serious physical injury. I do not repeat all of the majority's analysis here. I further agree that, under our case law, an imminent threat is one that is “near at hand, impending, or menacingly near.” State ex rel Juv. Dept. v. Dompeling, 171 Or App 692, 695, 17 P3d 535 (2000) (internal quotation marks omitted). I also agree that we consider the statements in the totality of the circumstances. S. L. L. v MacDonald, 267 Or App 628, 633, 340 P3d 773 (2014).

Even with the benefit of those general standards, determining what is an imminent threat of serious harm can be a difficult task. The threats that come before the trial courts and us are often made by people who are acting out in moments of rage with people close to them or are made by strangers who may have mental illness. They may convey passing feelings of anger and frustration, incoherent but violent ramblings, or true threats of impending violence. How to distinguish among them is often quite difficult. In addition, because verbal threats are expressive in nature, we must be particularly careful. The guarantees of the right to free speech in Article I, Section 8, of the Oregon Constitution prohibit, subject to historical exceptions inapplicable here, the legislature from criminalizing the content of speech, although permit criminalizing “the pursuit or accomplishment of forbidden results” from that speech. State v. Rangel, 328 Or 294, 302, 977 P2d 379 (1999) (quoting State v. Robertson, 293 Or 402, 416-17, 649 P2d 569 (1982)); see also State v. C. S., 275 Or App 126, 130, 365 P3d 535 (2015) (noting that obviously empty threats of serious injury are not so harmful as to deserve criminal sanction).

We do have some further guidance from precedent on this issue, and this is where I depart from the majority. In C. S., we concluded that a threat by a middle school youth to harm another child within increasingly narrow time frames, which ultimately included a threat to do harm within three days, was not “near at hand,” “impending,” or “menacingly near.” 275 Or App at 133. The majority ignores the specific time frames discussed in that case.

I do not read C. S. to require that we always take the threat entirely at face value and, as noted, we consider the totality of the circumstances. It should go without saying that a child's threats and taunts at a middle school are made in a completely different context than threats by adults, and their sincerity may be treated differently. Still, C. S. and our other case law do consider the text and actual time frames conveyed in the threat and their surrounding context. If the threat to attack someone in three days in C. S. was not imminent, it is hard to conclude that the threat in the June 23 letter to harm D's children “before the end of this week” or before “the end of this month” is imminent. See also id. (stating that the vague threats are insufficient because the “possibility of unspecified future harm * * * is not the equivalent of ‘imminent’ harm.”).

Significant to this case and the totality of the circumstances, the implicit threat in the fourth letter was delivered by mail from Texas to Oregon (and bizarrely and implicitly threatened to harm D's children in South Carolina). D understood that defendant's letters came from Texas. At that point at least, there was no indication that defendant was in Oregon or had any plan to come to Oregon.² That fact further supports the conclusion that the threat was not imminent. We have treated threats from other states differently depending on the particular circumstances. In V. G. G. v. Beckham, 224 Or App 565, 578, 198 P3d 980 (2008), we concluded that an email threat sent by the accused stalker from California to Oregon was not imminent where the accused lived in California, apparently did not know the protected person's Oregon address, and there was no evidence of a plan to come to Oregon—although the respondent had visited Oregon in the past. By contrast, in A. Z. v. Lange, 336 Or App 652, 657, 562 P3d 647 (2024), we held that a threat from someone who lived in California was imminent where the respondent knew the Oregon victim's address and intimate details about their whereabouts, indicated that he was not in California, had planned to return to the area, and had resided for a time with the victim's mother. This case falls a bit in between but, as in V. G. G., there is no evidence that defendant at the time that he sent the fourth letter had any plan to come to Oregon. In sum, I conclude that the fourth letter did not convey an imminent threat and could not be the basis for a second contact necessary to prove the stalking charge under ORS 163.732(1).

I agree, however, that the implicit threat conveyed in the July 3 voicemail to harm D if she did not visit him “in the next 24 to 48 hours” was sufficiently imminent to support the menacing charge under ORS 163.190(1). As above, the context of the threat and the totality of the circumstances matter. By that point, defendant was conveying his progressively looming threats from nearby in Oregon. He had travelled thousands of miles from Texas to Oregon in an attempt to meet D, which supports the inference that defendant had an intent to follow through on his obsession and past threats. There was sufficient evidence of imminence at that point. The trial court did not err in denying the motion for judgment of acquittal on the menacing charge.

I respectfully dissent in part and concur in part.

FOOTNOTES

1.   The family frequently received letters from strangers due to D's father's lifesaving medical work.

2.   Article I, section 8, provides, in part, that “[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak * * * on any subject whatever[.]”

1.   Defendant does not challenge his conviction for attempted coercion, ORS 163.275 (Count 3).

2.   I disagree with the majority's factual statement that D testified that, at the time she received the fourth letter, she “believed defendant had a plan to come to Oregon or was in Oregon already.” 352 Or App at 318-19. Indeed, although D had a feeling defendant might come to Oregon, she testified that she did not contact police at that point because “I didn't feel like I was in danger” and “I didn't even know, really, is it—this is a real person? Is this a prank?” D did not understand that defendant was in Oregon until she received the voicemail from him on July 3.

PAGÁN, J.

Shorr, P. J., dissenting.