S056267, Opinion — State v. Berg

569
Argued and submitted January 14, decision of Court of Appeals and judgment of
circuit court affirmed July 30, 2009
STATE OF OREGON,
Respondent on Review,
v.
JON NORMAN BERG,
Petitioner on Review.
(CC 05C42989; CA A129341; SC S056267)
213P3d1249
CJS, Obstructing Justice or Governmental Administration § 33.
En Banc
On review from the Court of Appeals.*
Bronson 	D. 	James, 	Deputy 	Public 	Defender, 	Salem,
argued the cause for petitioner on review. The brief was filed
by Eric Johansen, Senior Deputy Public Defender, and Peter
Gartlan, Chief Defender, Office of Public Defense Services.
Pamela J. Walsh, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
* Appeal from Marion County Circuit Court, Joseph Guimond, Judge. 220 Or
App 442, 186 P3d 325 (2008).

570 	State v. Berg
GILLETTE, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

Cite as 346 Or 569 (2009) 	571
GILLETI'E, J.
This case is a companion to State v. Bailey, 346 Or
551, 213 P3d 1240 (2009), decided this date. As does the
defendant 	in Bailey, 	defendant 	in this 	case challenges
his 	conviction 	for 	"tampering 	with 	a 	witness," 	ORS
162.285(1)(a), on the theory that that statute applies only
when an official proceeding is pending at the time of the tam-
pering conduct-a circumstance that the state did not and
could not prove in this case. Today, in Bailey, we reject that
interpretation of ORS 162.285(1)(a). In that case, we hold
that the state can prove a violation of the statute by showing
that the defendant believed that the person in question
might be called as a witness in a potential future official pro-
ceeding and knowingly attempted to induce him or her either
to testify falsely or unlawfully withhold testimony. Bailey,
346 Or at 564. Accordingly, all that remains in this case is to
determine whether the evidence presented at trial was suffi-
cient to establish those elements. We conclude that it was
and, therefore, affirm.
Defendant was charged with tampering with a wit-
ness and stalking, ORS 163. 732, based on allegations that he
had 	repeatedly 	trespassed 	on 	his 	neighbors' 	property,
engaged in aggressive and offensive conduct toward them,
and threatened one of them with various consequences if she
"showed up in court." At trial, the state presented the testi-
mony of the neighbors (a woman and her mother), and two
local police officers. Collectively, their testimony established
that, on numerous occasions between September 2004 and
March 2005, defendant's neighbors had called the police to
report trespassing and other offensive conduct by defendant.
At least initially, those calls to the police often did not result
in any action and, on September 26, 2004, the neighbors filed
stalking and criminal trespass complaints against defen-
dant. Defendant was arrested, but the stalking complaint
was dismissed a few days later for lack of evidence. After
that, one of the neighbors began to keep track of the comings
and goings at defendant's home, writing down license plate
numbers and taking photographs of his visitors, in an effort
to ''build a case" against defendant.

The neighbor specifically testified about threats that
defendant and a friend had made to her on January 25, 2005.
She testified that, on that day, a friend of defendant's, who
was otherwise unknown to her, approached her and told her
that he was going to court with defendant on the seventh of
February and that he was going to tell the judge that the
neighbor had been on defendant's property the night before.
The man told her that "he would make sure that I didn't show
up to court, and ifhe couldn't take care of me, then he would
have his friend * * * come down and take care of me." Later
that same day, the neighbor saw the same man with defen-
dant on defendant's front porch, and, immediately thereafter,
as she was walking to her mailbox, the man approached her
and made the same threat that he had made before-that "he
would take care of me so that I would not show up to court."
The neighbor then testified that, as she headed back from her
mailbox, defendant approached her himself and told her that
"either he or his friend would make sure that I never made it
to court to testify against him," that he would break in to her
house and rape her and beat her, and that "he would have
somebody take care of the brake lines on my car, cut them;
that one way or another I was not going to make it to court to
testify." Although the reported threats all mentioned antici-
pated testimony in court, there is no evidence in the record of
any judicial proceeding against defendant at the time of the
threats. However, the record does contain some mention of
defendant's arraignment on a criminal trespass charge on
February 10, 2005, a parole violation proceeding against him
on April 26, 2005, and the successful initiation of a second
stalking complaint against defendant on March 29, 2005.
Indisputably, a reasonable factfinder could infer
from the foregoing evidence that defendant believed that the
neighbor might be called as a witness in a "court"-in an "offi-
cial proceeding"1-and that his threats against the neighbor,
whether he made them personally or through an intermedi-
ary, were calculated to induce her to disregard or otherwise
1 ORS 162.225(2) defines the phrase "official proceeding" as follows:
" 'Official proceeding' means a proceeding before any judicial, legislative or
administrative body or officer, wherein sworn statements are received, and
includes any referee, hearing examiner, commissioner, notary or other person
taking sworn statements in connection with such proceedings."

Cite as 346 Or 569 (2009) 	573
refuse to comply with any such call-that is, to unlawfully
withhold testimony. Although there is no evidence in the rec-
ord that any official proceeding against defendant actually
existed at the time of the threats, our decision today in Bailey
establishes that no such evidence is required. In short, the
evidence was sufficient to support a conviction for tampering
with a 	witness under ORS 	162.285(1)(a). The Court of
Appeals was correct in so holding. State v. Berg, 220 Or App
442, 186 P3d 325 (2008).
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.