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State v. Olive

Court of Appeals of Oregon

October 23, 2013

STATE OF OREGON, Plaintiff-Respondent,
HERBERT HOOVER OLIVE, JR., aka Herbert Oliver, Defendant-Appellant.

Argued and submitted on July 31, 2012.

Multnomah County Circuit Court 091254415 Henry Kantor, Judge.

Neil Francis Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Michael A. Casper, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.


In this criminal case, defendant appeals a judgment convicting him of resisting arrest, ORS 162.315, and interfering with a peace officer, ORS 162.247. With respect to his resisting arrest conviction, defendant contends that, contrary to our holding in State v. Toelaer, 70 Or.App. 164, 688 P.2d 124 (1984), ORS 162.315 requires a person to know that he or she is being arrested. He argues that, in light of the trial court's finding that defendant did not know that he was being arrested, the court erred in convicting him of resisting arrest. We agree. Accordingly, we overrule Toelaer, reverse defendant's conviction for resisting arrest, and otherwise affirm.

Defendant was charged with resisting arrest after he was involved in an altercation with several Portland police officers. The case was tried to the court. The state presented, inter alia, testimony from one officer that, during the altercation, he told defendant that he was under arrest. In closing argument, the prosecutor argued that the officer's statement, along with testimony by defendant, proved that defendant knew that he was under arrest. In response, defense counsel contended that, when defendant resisted the officers, he did not know that he was under arrest and that, as a result, he lacked the necessary intent to resist arrest.

In rebuttal, the prosecutor contended that, under Toelaer, a person can commit the crime of resisting arrest even if the person does not know that he or she is under arrest. Alternatively, the prosecutor reiterated his argument that defendant knew that he was under arrest. The trial court found that defendant did not know that he was under arrest but concluded that that knowledge was not necessary, stating, "I agree with [defense counsel] that the state did not prove beyond a reasonable doubt that the defendant knew he was under arrest, but I agree with [the prosecutor], they don't have to. It's not an element of the crime." The court convicted defendant.

Defendant appeals, contending that the court committed the equivalent of instructional error by concluding that knowledge of the arrest is not an element of the crime of resisting arrest. In a separate assignment of error, defendant argues that, for the same reason, the court erred in entering the judgment convicting him of resisting arrest.[1]

We review a trial court's construction of a statute for errors of law. State v. Wilson, 240 Or.App. 475, 486, 248 P.3d 10 (2011); see also State v. Andrews, 174 Or.App. 354, 359, 27 P.3d 137 (2001), abrogated in part on other grounds by State v. Rutley, 202 Or.App. 639, 123 P.3d 334 (2005), aff'd in part and rev'd in part, 343 Or 368, 171 P.3d 361 (2007) (no formal findings by the trial court are required for review of a claim of legal error in a bench trial; instead, "'what matters is only that an appellate court can perform its function on the issue whether the [case] was decided on the right legal premises'" (quoting State v. Hull, 286 Or 511, 517, 595 P.2d 1240 (1979)) (brackets in Andrews).

Defendant argues that, under ORS 161.095(2), as construed in our opinion in State v. Rainoldi, 236 Or.App. 129, 235 P.3d 710 (2010) (Rainoldi I), the circumstance that the officer is making an arrest is a "material element of the offense that necessarily requires a culpable mental state." ORS 161.095(2). He contends that the Supreme Court's reversal of our holding in that case, State v. Rainoldi, 351 Or 486, 268 P.3d 568 (2011) (Rainoldi II)--which took place after defendant filed his brief but before oral argument in this case--rested on our analysis of ORS 161.105 rather than our analysis of ORS 161.095(2); consequently, he asserts, despite the reversal, our analysis of ORS 161.095(2) in light of its legislative history applies in this case. Under Rainoldi I, defendant contends, Toelaer is plainly wrong because its analysis was based on the false premise that, where the statute defining a crime does not specify a culpable mental state for a particular element, no culpable mental state is required for that element.

"[W]e do not lightly overrule our own statutory interpretations. Ordinarily, we regard them as binding precedent unless they are plainly wrong." Aguilar v. Washington County, 201 Or.App. 640, 648, 120 P.3d 514 (2005), rev den, 340 Or 34 (2006). As the Supreme Court recently reiterated, however, although the stability and predictability that result from stare decisis "'are important values in the law, '"

"[a]t the same time, this court has an obligation to reach what we regard as a correct interpretation of statutes and rules. Indeed, we are so obliged whether or not the correct interpretation has even been advanced by the parties. See Stull v. Hoke, 326 Or 72, 77, 948 P.2d 722 (1997). Particularly when we 'failed to apply our usual framework for decision or adequately ...

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