2012 VT 7


State v. Wyrocki (2010-326)
 
2012 VT 7
 
[Filed 26-Jan-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2012 VT 7

 

No. 2010-326

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Addison Unit,


 


Criminal Division


 


 


Jennifer A. Wyrocki


October Term, 2011


 


 


 


 


Cortland
  Corsones, J.


 

William H. Sorrell, Attorney General, and Evan Meenan, Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender
General, Anna Saxman, Deputy Defender General, 
  Rebecca Turner, Appellate Defender, and Alex Foote, Law Clerk (On the Brief),
  Montpelier, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
BURGESS, J.  Defendant appeals her conviction for disturbing
the peace by telephone in violation of 13 V.S.A. § 1027(a)(iii). 
The State charged defendant with making repeated and anonymous terrifying,
intimidating, threatening, harassing, or annoying telephone calls. 
Defendant first argues that the trial court incorrectly found that the calls
were “anonymous” as required by § 1027.  She also argues that, as applied
to this case, § 1027 violates the First Amendment to the United States
Constitution because it criminalizes protected speech.  Lastly, she argues
that § 1027 is unconstitutionally overbroad and vague.  We agree that
defendant’s calls were not anonymous within the meaning of the statute and
therefore reverse. 
¶ 2.            
On August 22, 2009, Roxanne Emilo received two
telephone calls in succession on her cell phone while at work.  The first
came at about 3:20 in the afternoon. Though Ms. Emilo’s
cell phone has caller identification (caller ID), she could not view the
caller’s phone number because it registered on her caller ID as
“withheld.”  Upon answering the call, however, Ms. Emilo
at once identified the caller as defendant because she recognized her
voice.  Ms. Emilo knew defendant’s voice because
defendant was her son’s girlfriend and they had spoken many times before. 
Ms. Emilo’s son had been living with defendant for
more than six years, during which time defendant and Ms. Emilo
had visited each other’s houses and talked over the phone.  At trial, Ms. Emilo testified that she was “absolutely” sure that
defendant was the caller.  
¶ 3.            
After Ms. Emilo answered, defendant unleashed
a series of profanity-laced insults at her.  Screaming, she said to Ms. Emilo, “I hope you’re happy,” “You fucking bitch,” “He’s
going to die in jail,” and “I hope you die.”  Upset, Ms. Emilo ended the call.  Two minutes later, Ms. Emilo received a second call, during which she again
immediately recognized defendant as the caller.  This time defendant said,
“I hope you run your car into a tree and fucking die.”  
¶ 4.            
Unknown to Ms. Emilo, her son had been removed
from defendant’s apartment earlier that day and taken to jail.  This
apparently resulted from Ms. Emilo’s report to the
Vermont Housing Authority that her son was living with defendant in violation
of defendant’s housing agreement.  Although Ms. Emilo
was unaware of her son’s arrest, she had long disapproved of his relationship
with defendant, with whom he shared substance abuse problems.  
¶ 5.            
Based on the foregoing evidence, defendant was convicted after a bench
trial.  The statute at issue, 13 V.S.A. § 1027(a), penalizes, in pertinent
part: 
[a]
person who, with intent to terrify, intimidate, threaten, harass or annoy,
makes contact by means of a telephonic or other electronic communication with
another and . . . disturbs, or attempts to disturb,
by repeated anonymous telephone calls . . ., whether or not conversation
ensues, the peace, quiet or right of privacy of any person at the place where
the communication . . . [is] received. 
 
(emphasis
added).  Before the verdict, defendant moved for a judgment of acquittal
on three grounds: that her conduct was protected by the First Amendment, and
that the two phone calls within two minutes were neither “repeated” nor
“anonymous” under § 1027.  The trial court denied defendant’s motion,
reasoning that § 1027 does not run afoul of the First Amendment because it
punishes conduct, “not the actual words spoken by the accused.”  It also
ruled that making two phone calls meets the section’s definition of “repeated.” 
Finally, the court concluded that defendant’s calls were anonymous as required
by § 1027.  Using Black’s Law Dictionary, it defined “anonymous” as
“not named or identified,” and reasoned that defendant’s calls satisfied this
definition because she did not identify herself and “called from a phone that
prevented Ms. Emilo from seeing her phone
number.”  Defendant appealed her conviction. 
¶ 6.            
On appeal, defendant renews two of the three arguments made in her
motion for judgment of acquittal and adds two others.  She first argues
that the trial court erred in finding that her calls were “anonymous” because
Ms. Emilo knew that defendant was the person calling
her.  Defendant next argues that § 1027 violates the First Amendment as
applied to this case because, though “distasteful or vulgar,” her calls did not
contain obscene language, fighting words, or threats, and were therefore
protected speech.  She also argues that the statute is unconstitutionally
overbroad because it necessarily punishes, and will thus discourage individuals
from engaging in, protected speech.  Finally, defendant claims that the
statute is unconstitutionally vague.  Because this appeal turns on
defendant’s first argument, we need not decide her other claims.
¶ 7.            
The meaning of “anonymous” under § 1027 is one of first impression, and
we review the trial court’s interpretation de novo.  See Vt. Alliance
of Nonprofit Orgs. v. City of Burlington, 2004 VT
57, ¶ 5, 177 Vt. 47, 857 A.2d 305 (stating that statutory interpretation is
question of law warranting de novo review).  Enacted in 1967, § 1027
became law well before caller ID became commonplace in American telephones and
has not been amended substantively since.  1967, No. 171, § 1; see also
1999, No. 124 (Adj. Sess.), § 2 (making slight changes to § 1027); James
Barron, Thing; Caller ID, N.Y. Times, May 3, 1992, § 9, at 11 (noting
that New Jersey was first state to approve caller ID in 1987).  Vermont’s
prohibition on anonymous disturbing calls was in place for years before there
was any conventional way for a caller’s identity to be known short of the now
somewhat quaint necessity of having to blindly pick up the receiver to answer a
telephone.  The absence, or even masking of caller ID, therefore, is of no
moment to our reading of § 1027.  
¶ 8.            
Consider the dueling definitions of “anonymous” offered on appeal. 
The State, echoing the trial court, argues that a call is “anonymous” under
§1027 when “a defendant [takes] steps to conceal his or her identity,” a
definition also drawn from Black’s Law Dictionary.  Black’s Law Dictionary
100 (8th ed. 2000).  To the State, this means that defendant’s calls were
anonymous “because she failed to identify herself and she called from a phone
that prevented her victim from seeing who was calling.”  Defendant
contends that no call is anonymous if the person receiving the call identifies
the caller.  She does not dispute the use of Black’s Law Dictionary to
define “anonymous,” but disagrees with viewing anonymity from the caller’s
perspective only.  Defendant maintains the calls were not anonymous
because Ms. Emilo immediately recognized her as the
caller.  We agree with defendant’s application of the definition.
¶ 9.            
This construction is consistent with the common understanding of what
“anonymous” means.  Again, Black’s Law Dictionary defines “anonymous” as
“not named or identified.”  Black’s Law Dictionary 100 (8th ed.
2000).  Webster’s defines it as “having or giving no name” or “of unknown
or unnamed origin.”  Webster’s New Collegiate Dictionary 46 (1981). 
Another dictionary defines anonymous as “[h]aving an
unknown or unacknowledged name” or “having an unknown or withheld authorship or
agency.”  The American Heritage Dictionary of the
English Language 54 (New College 1979).  
¶ 10.         The
State, in part, posits that the trial court properly relied upon Black’s Law
Dictionary to define “anonymous,” as opposed to another dictionary
definition.  As shown by these three exemplary definitions, however, there
is little, if any, significant variation as to the commonly accepted meaning of
the term.   The real issue is not between definitions, but whether
the trial court’s focus on anonymity from the caller’s viewpoint, and not the
listener’s, comports with the meaning of the Legislature.  Under all of
these definitions, a telephone caller’s anonymity depends in part on the
listener’s non-recognition of the person engaging in the call, since at the
instant of recognition the caller’s name or identity, or both, are known. 
Under any definition, a call cannot be anonymous when its author is known to
the listener.  It is therefore a necessary condition of § 1027
anonymity that the person taking the call does not know the sender.[1]  
¶ 11.         Because
the trial court’s findings and Ms. Emilo’s testimony
leave no doubt that she knew defendant was the caller, we hold that defendant’s
calls were not anonymous within the meaning of § 1027.[2]  If the conduct charged against
defendant had occurred after enactment of § 1027, but during the twenty
years before the dawn of caller ID, it is beyond cavil that it would be no
offense under § 1027(a).  The invention of caller ID did not turn what was
no violation of the statute in 1967 into a crime today.   
¶ 12.         Reaching
this result, we also reject the State’s argument that defining “anonymous” as
“anonymous in fact” leads to an absurd result.  The State contends that §
1027 could hardly be enforced if its violation depended upon victims not
recognizing a caller’s voice.  First, if correct, the State’s argument is
still no reason to apply the statute contrary to its plain meaning at the time
of passage.  Second, it is not inherently absurd to read a criminal
statute in a way that limits the range of possible offenders.  See State
v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989) (“Penal statutes .
. . are to be strictly construed in a manner favorable to the accused.”).
 Moreover, as defendant impliedly argues in her brief, it is not patently
unreasonable that the Legislature would criminalize terroristic, intimidating,
threatening, harassing, or annoying telephone calls from unknown, rather than
known actors, since such messages can reasonably be viewed as more vexing,
disturbing, or sinister when communicated anonymously.  In contrast,
defendant’s identity was not unknown, her telephonic communication was not
anonymous, and § 1027 does not criminalize the conduct alleged in this
case.  
Reversed.

 


 
 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]  This construction leaves open whether
calling repeatedly and hanging up before the listener can identify a caller
could support a conviction under the act.    
 


[2] 
As noted in the State’s brief, other courts have applied the definition of “anonymous”
as urged by the State.  See McKillop
v. State, 857 P.2d 358, 362 (Alaska Ct. App. 1993) (defining “anonymous” in
terms of whether defendant withheld his name).  On the other hand,
defendant also offers cases in support of her proposed definition. 
Concurring in Florida v. J.L., 529 U.S. 266 (2000), for example, Justice
Kennedy—speaking about the use of anonymous tips to support a Fourth Amendment
stop—explained that a call following multiple previous calls by “an unnamed
caller with a voice that sounds the same each time . . . ought not be treated
automatically” like an anonymous tip.  Id. at 275 (Kennedy, J.,
concurring).  Again, regardless of arguable differences in definitions, we
read the statute to apply to communications anonymous in fact to the
listener.  
 
 



