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Jim Porter: Cranky ice cream customer charged with making obscene calls

Jim Porter
Special to the Sun

TRUCKEE/TAHOE, Calif. and#8212; Just how far can you go calling a businessand#8217;s customer service line, giving them a piece of your mind? At what point do your complaints and#8220;laced with references to bovine excrement, body parts and other vulgarities derived from sexually-related terms,and#8221; as described by the court, become a crime?

Cold Stone Creamery

In the fall of 2008, David Thomas Powers made frequent telephone calls, leaving messages on Cold Stone Creameryand#8217;s customer service line. The guy is a complete nut job. He told all sorts of stories, like he frequented the store 400 times in a year. His basic theme was that he was being and#8220;ripped offand#8221; when they packaged his favorite pumpkin flavored ice cream in a take-home container.

As the court wrote, Powers had a penchant for the and#8220;Fand#8221; word. He constantly described how the customers threatened him and the police department did nothing and and#8220;thinks itand#8217;s cute.and#8221; He noted he was a former world heavyweight boxing champion and if someone upset him he would and#8220;wage war on his face.and#8221; Powers frequently complained about not getting all of the ice cream and#8220;fixinand#8217;sand#8221; he paid for and incompetent employees not giving him the correct number of brownies. I am leaving out all of the good stuff as he definitely enjoyed the and#8220;Fand#8221; word and everything that goes with it.

Criminal threats

Cold Stone didnand#8217;t call David Thomas Powers back, though they did send him some free ice cream coupons when he first started calling. The company called the police department. Powers was charged with a felony count of making criminal threats against an employee and misdemeanor counts of making annoying and obscene calls.

The trial court found our ice cream aficionado incompetent for trial. He was committed to a state hospital for treatment. After his competency was restored, the charges were brought against him in court. I am always amazed how a brief stay in a mental hospital restores oneand#8217;s sanity. I should try it.

The trial court convicted David Thomas Powers of making annoying and threatening calls and using obscene language with an intent to harass or annoy.

Penal Code 653

Hereand#8217;s the specific Penal Code: and#8220;Every person who, with an intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about (what the heh?) the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor.and#8221; That code could use some well placed commas.

The courts have defined and#8220;obsceneand#8221; in the code as language that is and#8220;offensive to oneand#8217;s feelings, or to prevailing notions of modesty or decency; lewd.and#8221;

Did Powers cross that line?

Vulgar text messages

The Court of Appeal analyzed two other threatening-message cases. One was People v. C.C., which we wrote about a couple of years ago. In that case a young, frustrated teenager used vulgarities and sexually related terms to express his feelings to his ex-girlfriend. The Court concluded the words were inappropriate but common parlance in the teen world, and while upsetting and insulting, they were not obscene.

In the Hernandez case the court went the other way, finding that messages left with the manager of an apartment complex saying she was and#8220;in deep troubleand#8221; and and#8220;she would pay,and#8221; plus calling her a variety of truly vulgar names, was indeed obscene and threatening and a crime.

Thin skin

The Court of Appeal found the People v. C.C. case a perfect fit for David Thomas Powers. His rants did not threaten anyone, and while obnoxious they were not lewd and obscene. As the Court wrote: and#8220;An employee who listens to consumer complaints should have a thick skin.and#8221; David Thomas Powers should be happy he is not in prison where they do not serve pumpkin ice cream. He should consider a class in civility.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s web site http://www.portersimon.com.


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