Argued and Submitted May 28, 2014.
Marion County Circuit Court. 12C43321. Mary Mertens James, Judge.
Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Brandon Cobb, Certified Law Student, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[267 Or.App. 539] GARRETT, J.
A jury convicted defendant of assaulting a public safety officer, ORS 163.208. On appeal, defendant assigns error to the trial court's refusal to specifically instruct the jury that, to be guilty, defendant had to engage in a " voluntary act." We conclude that defendant was not entitled to his requested instruction and, therefore, affirm.
Salem Police Officer Smith responded to a call of a domestic disturbance in which the suspect, defendant, had left the scene on foot. Defendant had a warrant out for his arrest at the time. Smith reported to a location at a field near a school, where he saw a person matching defendant's description. Smith called out to defendant, told him he was under arrest, and instructed him to show his hands and get down on the ground. Defendant said, " No." When Smith told defendant that there was a warrant out for defendant's arrest, defendant said, " I know." According to Smith, defendant's eyes were red and watery, and defendant had a " thousand[-]yard stare." Defendant turned to squarely face Smith in what Smith described at trial as a " fighting stance."
Smith operates a K-9 police dog unit and had a dog in his vehicle at the time. Smith called for back-up and warned defendant that, if he did not comply, the dog would be released from the car, and defendant would be bitten. Defendant said, " So?" Smith repeated the warning and instructions to defendant several times, but defendant did not comply. Using a remote device, Smith opened the door to his vehicle, releasing the dog, and gave the dog an instruction to bite defendant. The dog chased defendant and bit him, knocking him off balance. Smith then approached and made physical contact with defendant in an attempt to subdue him and take him into custody. As the two men made contact, they slid partway down a slope, coming to rest with their feet elevated above their heads, with Smith on top of defendant. The men continued to wrestle, and the dog continued to inflict bites on defendant. Defendant was grabbing at Smith's head, neck, and waist. At some point, defendant hit Smith in the jaw with his wrist or forearm. Smith's mouth was open at that moment because he was talking to defendant. The impact of the strike slammed Smith's jaw shut.
[267 Or.App. 540] Back-up officers arrived at the scene, and eventually they were able to take defendant into custody. Smith felt pain in his jaw for approximately two hours after the encounter. Smith testified that, on a scale of
one to ten, with ten being the most extreme pain, Smith rated his pain at that time a five. He did not seek treatment for the injury. Defendant was treated for several dog bites.
The state charged defendant with assaulting a public safety officer, ORS 163.208. Before trial, defendant requested that the court issue Uniform Criminal ...