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Court Reverses Decision on Cold Stone Creamery Caller

The State of California Court of Appeals has reversed a decision by the trial court in the case People v. Powers. The original decision in January 2009 charged David Thomas Powers with one felony count of criminal threats against a Cold Stone Creamery employee along with several misdemeanor charges of making annoying calls to an employee. The court, at first, found Powers incompetent for trial at the time and ordered him to be committed to a state hospital. Following treatment, the court dropped the felony charges against Powers and the case was continued in a trial court, whereupon Powers testified on his own behalf. The trial court found Powers guilty of four misdemeanors.

In the fall of 2008, David Thomas Powers left recorded messages after calling Cold Stone Creamery regarding his complaints and discontent with the service and other customers in the store. Powers claimed that he was being “ripped off” and continued to use profanity throughout the several messages he left after he also claimed he “didn’t know what else to do." The messages contained what Cold Stone Creamery deemed as threatening comments such as, “[if] I ever have a problem with them …I’ll take my fist and beat their faces in.” The company never returned any of Powers calls and instead made a complaint to the police.

The trial court found Powers guilty and placed him on probation, ordering him to serve jail time and to pay fines. However, the State of California Court of Appeals has recently reversed the charges. In the opinion handed down by Judge Yegan, he began with stating, “An employee who listens to consumer complaints should have a thick skin." The court found that there was no substantial evidence that the threats were made directly to the recipient of the call or that Powers used any obscene language in a lewd manner. Furthermore, the court found that the calls were not private and therefore did not target anyone specifically. As a result, the court did not find these messages intrusive or in direct violation of privacy. Although the messages may have been annoying, the court affirmed, the vulgarities used by Mr. Powers could not be described as obscene, nor did they cross the line.

The case is: People v. Powers, 2nd Dis, Division 6, March 2, 2011; B218687

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