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State v. Enyeart

Court of Appeals of Oregon

November 13, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ALEXIS JOY ENYEART, Defendant-Appellant

Argued and Submitted April 26, 2013.

Washington County Circuit Court No. C101857CR. Thomas W. Kohl, Judge.

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

Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.

OPINION

Page 58

[266 Or.App. 764] ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for interfering with a peace officer, ORS 162.247(1)(b). While defendant was stopped at a red light, a police officer approached defendant and ordered her to turn off her car's engine. When the stoplight turned green, defendant drove off. The state subsequently charged defendant with attempting to elude a police officer, ORS 811.540(1)(b)(A). The trial court did not convict her of that charge but, instead, convicted her of interfering with a peace officer as a lesser-included offense. Defendant contends that the trial court erred in convicting her of the latter crime. She argues that the crime of interfering with a peace officer required the state to prove that she had acted intentionally, and, because the crime for which she had been charged, viz., attempting to elude a police officer, required the state to prove only that she had acted knowingly, the former crime was not a lesser-included offense of the latter crime. We agree with defendant and, accordingly, reverse her conviction.

The facts are undisputed. A police officer noticed two cars driving close together and believed that they might be chasing each other. When the two cars stopped at a stoplight, the officer drove his patrol vehicle between them, got out of his car, and instructed both drivers to turn off their cars' engines. The officer repeated those instructions several times when defendant did not comply. The stoplight turned green, and defendant drove away. The officer remained at the stoplight to investigate the driver of the other car for driving under the influence of intoxicants. The officer did not pursue defendant.

Defendant was charged with attempting to elude a police officer, ORS 811.540(1)(b)(A).[1] The indictment alleged [266 Or.App. 765] that defendant " unlawfully and knowingly" attempted to elude a police officer. The trial court did not convict defendant of attempting to elude a police officer but, instead, convicted her of interfering with a peace officer, ORS 162.247(1)(b), as a lesser-included offense.[2]

On appeal, defendant contends that the trial court erred in convicting her of interfering with a peace officer, ORS 162.247(1)(b), because the offense is not a lesser-included offense of attempting to elude a police officer. The state responds that the arguments that defendant makes on appeal were not presented to the trial court and, hence, are unpreserved. It further contends that, to the extent that defendant's arguments were preserved, they fail on their merits.

As we will explain, we conclude that one of the arguments that defendant makes on appeal-- viz., that interfering with a peace officer requires the state to prove a higher culpable mental state than the mental state for the crime charged in the indictment, and, therefore, that interfering with a peace

Page 59

officer is not a lesser-included offense of attempting to elude a police officer--was preserved and is correct. Accordingly, we conclude that the trial court erred in convicting defendant ...


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