Argued and submitted February 19, 2014
Lane County Circuit Court. 211119536. R. Curtis Conover, Judge.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Edmonds, Senior Judge.
[265 Or.App. 124] Defendant's appeal requires that we determine whether he offered evidence to support a jury instruction on self-defense in response to a charge of resisting arrest. At trial, he was convicted on misdemeanor charges of driving under the influence of intoxicants (DUII), ORS 813.010, recklessly endangering another person, ORS 163.195, interfering with a peace officer, ORS 162.247, and resisting arrest, ORS 162.315. On appeal, he assigns error to the trial court's denial of his requested Uniform Criminal Jury Instruction (UCrJI) 1227. We reject, without further discussion, his other assignments of error. " We review a trial court's refusal to give a requested instruction for errors of law in light of the facts that are most favorable to defendant." State v. Sullivan, 253 Or.App. 103, 104, 288 P.3d 1004 (2012), rev den, 354 Or. 814, 325 P.3d 33 (2014) (quoting State v. Greeley, 220 Or.App. 19, 21, 184 P.3d 1191 (2008)). We reverse and remand his conviction for resisting arrest and otherwise affirm.
A statute and a uniform instruction frame our issue. Under ORS 162.315(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." Employing those terms, the state charged that defendant " did unlawfully and intentionally resist Guy Pease, a person known to the defendant to be a peace officer, in making an arrest[.]" Defendant gave a pretrial notice of intent to assert self-defense and, at trial, submitted a request for UCrJI 1227. That instruction reads:
" [ Defendant's name ] has raised the defense of self-defense to the charge of resisting arrest.
" If [ defendant's name ] reasonably believed that the officer[s] arresting [him / her] [was / were] using more physical force than was necessary to make the arrest, then [ defendant's name ] was entitled to use physical force in self-defense. In defending, [ defendant's name ] was entitled to use only that degree of physical force that [he / she] reasonably believed to be necessary to defend [himself / herself] against what [he / she] believed to be the excessive force.
" The burden of proof is on the state to prove beyond a reasonable doubt that this defense does not apply."
[265 Or.App. 125] (Brackets and italics in original.) To be given, the instruction required the trial court, and now requires this court, to determine whether the facts in evidence, construed in
the light most favorable to defendant, could show that he believes, and a reasonable person in his position would have believed, that the officer used more force than necessary to effect the arrest. State v. Oliphant, 347 Or. 175, 194, 218 P.3d 1281 (2009).
In light of that standard, we juxtapose defendant's evidence against a backdrop of evidence from the state's witnesses. Defendant suffers from long-term work-related injuries, including damaged rotator cuffs in both of his shoulders and 38 percent hearing loss in both ears. On September 8, 2011, defendant drove to the Lane County Jail to pick up his wife, who had been arrested the previous day. Defendant arrived at the jail with two of his young children. After waiting for some time outside, defendant entered the jail reception area. A deputy working at the reception desk noticed that defendant " was a little loud, wasn't walking too straight, and appeared to be impaired in some way." A sergeant escorted defendant outside because he had begun to cause a disturbance. Deputy Pease was dispatched and told that defendant was potentially an intoxicated driver. Pease met defendant outside the jail. After investigating, Pease placed defendant under arrest for DUII and handcuffed defendant with his hands behind his back. While Pease searched defendant, defendant's wife emerged from the jail. Pease recalled that defendant yelled at his wife and would not get into the patrol car. Defendant recalled that he was shouting in an ...