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State v. McClure

Supreme Court of Oregon, En Banc

July 10, 2014

STATE OF OREGON, Respondent on Review,
v.
CURTIS DWAYNE McCLURE, Petitioner on Review

Argued and Submitted March 11, 2014

 On review from the Court of Appeals, No.CC 090850307; CA A143705. [*]

Jedediah Peterson, Deputy Public Defender, Salem, argued the case and filed the brief for the petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.

Jona Maukonen, Assistant Attorney General, Salem, argued the case and filed the brief for the respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

OPINION

[355 Or. 705]  WALTERS, J.

In this criminal case, defendant was convicted of resisting arrest for violating the terms of his parole. We conclude, as did the trial court and the Court of Appeals, that an arrest for a parole violation qualifies as an arrest for purposes of ORS 162.315--the resisting arrest statute--and affirm.

Because the jury found defendant guilty, we present the facts in the light most favorable to the state. State v. Lewis, 352 Or. 626, 628, 290 P.3d 288 (2012). In 2009, defendant was walking in Portland's Old Town when two officers stopped him, engaged him in conversation, and asked for his name. Defendant complied, asked if he was free to leave, and, after receiving a positive response, did so. One officer followed defendant at a distance while the other officer conducted a warrant check, which revealed an outstanding warrant for defendant's arrest for a parole violation.[1] The officers then intercepted defendant, informed him that there was a warrant for his arrest, and began to restrain defendant. Defendant tightened his arms, grasped at one officer's fingers, and, yelling and screaming, held onto a utility pole. The officers attempted a " hair hold take down," and one officer struck defendant in the torso in an attempt to force defendant to the ground. The officers also repeatedly instructed defendant to " stop resisting." Notwithstanding the officers' actions and instructions, it was only with the assistance of private security officers that the officers

Page 1261

were able to force defendant to the ground and handcuff him.

Defendant was charged with resisting arrest under ORS 162.315, which provides, in part:

" (1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.
[355 Or. 706] " (2) As used in this section:
" (a) " Arrest' has the meaning given that term in ORS 133.005 and includes, but is not limited to, the ...

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