Argued and Submitted: August 28, 2013.
Marion County Circuit Court. 10C47950. John B. Wilson, Judge.
Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jennifer S. Lloyd, Attorney-in-Charge.
Before Duncan, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.[*]
[261 Or.App. 819] GARRETT, J.
Defendant appeals from a judgment of conviction entered following a jury trial. The jury convicted defendant on misdemeanor charges of second-degree disorderly conduct, ORS 166.025, and resisting arrest, ORS 162.315. On appeal, defendant argues that the trial court improperly instructed the jury on her defense of self-defense and that she was prejudiced by the erroneous instruction. Because we agree that the instruction was erroneous and could have confused the jury on an issue crucial to the defense, we reverse and remand.
The parties do not dispute the relevant facts. On September 30, 2010, defendant attended a hearing in her son's criminal case. Near the conclusion of the hearing, defendant caused a disturbance from the gallery. The judge instructed defendant not to leave the courtroom. Defendant rose from her seat and began moving toward the door. A deputy sheriff present in the courtroom directed defendant to obey the judge's instruction, but defendant continued toward the door. The deputy then grabbed defendant by the wrist and, with the assistance of another deputy, forced defendant into a sitting position on a bench. The officers then pinned defendant's upper body to the bench. While still restrained, defendant tried to stand up. Two deputies then brought defendant to the ground. She suffered abrasions on her forehead, brow, and cheek.
Defendant was charged with one count each of disorderly conduct in the second degree, resisting arrest, and contempt of court. The disorderly conduct and resisting arrest charges were tried to a jury. At trial, defendant argued that she had acted in self-defense. Following a conference with the parties on jury instructions and after closing arguments, the trial court instructed the jury, in relevant part, as follows:
" I instruct you that a peace officer is justified in using physical force on a person being arrested when and to the extent the officer reasonably believes it necessary to take the person into custody unless the officer knows the arrest [261 Or.App. 820] is unlawful. The defense of self-defense has been raised and I instruct you that a person is justified in using physical force on a peace
officer to defend herself from what she reasonably believes to be the use or imminent use of excessive, unlawful physical force. In defending, a person may use only that degree of force which she reasonably believes necessary under the circumstances. With regard to self-defense, the burden is on the State to prove beyond a reasonable doubt that the defense does not apply."
Defendant timely objected to that instruction. Citing State v. Oliphant, 347 Ore. 175, 218 P.3d 1281 (2009), defendant argued that the instruction was erroneous and prejudicial to the extent that it directed the jury to consider the peace officers' state of ...