Appeal from Circuit Court, Multnomah County. Richard J. Burke, Judge. No. C-72-08-2393.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Foley, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant was indicted for: Count I, the crime of assault in the second degree (on Officer Potter) (ORS 163.175); Count II, riot (ORS 166.015); and Count III, assault in the third degree (on Officer Guinn) (ORS 163.165). After entering a plea of not guilty, defendant was found guilty of all three counts by a jury and he appeals from a judgment of conviction.
The facts giving rise to the charges against defendant were essentially as follows:
On July 30, 1972, Officer Potter of the Portland Police Department received a radio call and went to Columbia Park in north Portland. Upon his arrival
at Columbia Park he contacted a concessionaire and was informed by her that money had been stolen from her cashbox. After the concessionaire pointed out the suspect to Officer Potter, Officer Potter walked over to the suspect and told the suspect that he was under arrest. After a short discussion, the suspect submitted peacefully to the arrest and started to walk to the patrol car with Officer Potter.
Around the bandstand in the park there was a large, diffuse group of people listening to music. There was also a large party of families, that appeared to be a church group, further to the north at the picnic tables in the park. As Officer Potter attempted to complete his arrest, a crowd gathered around the officer and the suspect and members of the crowd started pulling at the suspect and tried to pull him away from the officer. There was a substantial amount of pushing and shoving by the crowd and an individual who was wearing a red jumpsuit, Michael Vance, reached over the top of another individual and hit Officer Potter in the face, shattering his glasses and driving the eyepiece into his nose.
At the same time another officer, Officer Guinn, observed defendant come from behind Officer Potter, jump upon his back, and hit him in the head with his fist. Officer Guinn immediately grabbed the defendant around the neck and pulled him away from Officer Potter and at this time defendant hit Officer Guinn in the jaw with his fist.
Officer Potter jumped to his feet and started to chase the individual who had assaulted him, at which time he remembers being hit on the back of the head by an unknown assailant, and he went down for the second time. Then, "the lights just went ...