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Thomas v. Maryland12/6/1993
ng in nature. Shirlene Thomas testified that the defendant made approximately 30 calls to her home during the last part of April, 1991. In some of these phone calls, but not all, the defendant threatened to kill Shirlene or her family. The calls ceased when Shirlene had a "block" put on her telephone.
Based on these phone calls, the defendant was convicted and sentenced to six months incarceration for unlawful use of a telephone. He contests that conviction, though, arguing that
the calls he made from the jail were collect calls which were accepted by his wife, thereby negating the unwanted nature of the calls required by the telephone misuse statute.
The telephone misuse statute has been interpreted to require: repeated phone calls; the defendant's specific intent to annoy, harass, embarrass, torment or abuse the person who received the calls; and the criminal agency of the defendant. Caldwell v. State, 26 Md. App. 94, 107, 337 A.2d 476 (1975); see also von Lusch v. State, 39 Md. App. 517, 525, 387 A.2d 306, cert. denied, 283 Md. 740 (1978) (statute is aimed at a pattern of repeated calls, rather than individual calls as distinct offenses).
The record in this case contains evidence sufficient to satisfy each of those requirements. It shows that in late April, Mrs. Thomas, after receiving advice from a local shelter about the defendant's attempts to contact her, filed charges against him for making harassing phone calls. According to Mrs. Thomas's statement, the defendant called her on April 24 and threatened to kill her and anyone in her house. This was apparently the third call of this nature. On April 27, the defendant called from the Denton jail and stated that he "was getting out on bail and that he was going to kill anyone in the house when he got out." He also stated that he knew how to get into her house any time he desired. There were five calls like this one.
We reject the defendant's contention that his wife's acceptance of his collect phone calls from jail contradicts some implied requirement in the statute that the phone calls be "unwanted." We refuse to infer from the language of the
statute that the legislature intended to require a recipient to terminate a phone call at the point she identifies the caller as someone who might harass her. Although the harassment is undoubtedly unwanted, it is conceivable that the recipient might want to receive a phone call from the would be harasser.
This case provides an example of such a situation. Despite the abuse she suffered at his hands, it is possible that Mrs. Thomas needed, or wanted, to talk to her husband while he was incarcerated. She placed a certain amount of trust in him by accepting his phone calls. Unfortunately, he abused that trust by harassing her. He should not be able to escape the consequences of his criminal behavior by arguing that she consented to the harassment by accepting the calls. Mr. Thomas made many phone calls to his wife while he was in jail, and fortunately, not all of them were threatening. The law should not force her to assume that every phone call from her husband would be harassing.
The telephone misuse statute contains no express requirement that the recipient reject the calls, and no inference to that effect is warranted. Rather, the statute places the onus of the crime on the intent of the caller. Caldwell, supra, 26 Md. App. at 107-08, 337 A.2d 476. The trial court reasonably concluded that the defendant intended to harass his wife, and that conclusion will not be disturbed.
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