Submitted July 29, 2013
Jackson County Circuit Court. 112702MI. Lorenzo A. Mejia, Judge.
Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[265 Or.App. 357] ORTEGA, P. J.
Defendant was convicted of interfering with a peace officer, ORS 162.247, resisting arrest, ORS 162.315, and other crimes, but challenges only his conviction for interfering with a peace officer. He assigns error to the trial court's denial of his motion for judgment of acquittal, in which he argued that, because he was not violent or did not physically resist when he refused to obey lawful orders by police officers, the jury could find only that he was engaging in passive resistance, conduct that is not a violation of the offense of interfering with a peace officer. The state remonstrates that defendant's actions--which it characterizes as " active steps" to avoid cooperation with the police investigation--did not constitute passive resistance. We conclude that there was sufficient evidence for a jury to find that defendant was not engaged in passive resistance and that the elements of the crime of interfering with a peace officer had been proven. Accordingly, we affirm.
" Our standard for reviewing the denial of the motion for judgment of acquittal is whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt." State v. Paragon, 195 Or.App. 265, 267, 97 P.3d 691 (2004). The facts, viewed in the light most favorable to the state, are as follows.
Responding to a dispatch about a report of a hit-and-run accident, Officer Schilder arrived at defendant's [265 Or.App. 358] residence. Schilder walked up defendant's driveway, where he found defendant standing with his back to him, next to a Jeep whose doors and top had been removed. Defendant did not turn around when Schilder asked him, " Hey, can I talk to you?" When Schilder asked again, " Hey, can I talk to you? I need to talk to you real quick man," defendant was holding a door to the Jeep and appeared to be trying to put the door back on.
Schilder, alarmed that defendant was not responding to his questions, moved closer to defendant and raised his voice to get his attention. Defendant turned to face Schilder and said--in a manner that Schilder described as hostile and aggressive--" Can't you see I'm trying to put the door on my Jeep?" Schilder noticed that defendant's eyes were " bloodshot, red" and that defendant had a " lost look" when he spoke to him. Based on that observation, the fact that defendant did not appear to hear his commands or respond to them, and that the officer found defendant's statement " bizarre" about trying to put his Jeep door back on, Schilder suspected defendant of having driven under the influence of intoxicants.
Defendant moved around the Jeep, grabbed the Jeep's top, and said something about wanting to put the top on. Schilder, believing that defendant had committed a
crime and wanting to conduct an investigation, told defendant, " Hey, I need to talk to you. We need to talk." Defendant continued to hold the Jeep top, and Schilder ordered him to stop. Defendant did not stop but instead talked back to Schilder aggressively and proceeded toward him " a little bit." At that point, Schilder pulled out his Taser and ordered defendant to stop and turn around. Schilder felt that defendant's size advantage over him and his aggressive behavior in ...