Defendant appeals his conviction for harassment by telephonic threat. ORS 166.065(1)(d).1 Trial was to the court. He claims error in the denial of his motion for acquittal. The evidence is sufficient to support findings that he committed all the statutory elements of the offense. He argues that State v. Moyle, 299 Or 691, 705 P2d 740 (1985), requires the state to prove, in addition, that he took some step to carry out his threat. Defendant misunderstands Moyle. The Supreme Court held that, to justify a conviction under ORS 166.065(1) (d), the threat must be genuine and must pose an objective risk of a breach of the peace. 299 Or at 704-705. The determination of whether a threat is genuine and poses an objective risk must necessarily be made on the facts as of the time of the threat. A failure by the defendant to act on the threat may suggest that it was not genuine, but the failure does not compel that conclusion. There is evidence that defendant had previously damaged the victim’s property, that defendant had a gun and that he said, “I’ve got a gun and I’m going to kill you.” The trial court could infer from that evidence that the threat was genuine and that it imposed an objective risk of breach of the peace. That is sufficient to support the conviction.
Affirmed.