Argued and Submitted, McKay High School, Salem
February 24, 2015.
Marion County Circuit Court. 12C46144. Dale Penn, Judge.
Mark J. Geiger argued the cause and filed the brief for appellant.
Michael S. Shin, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[270 Or.App. 151] SERCOMBE, P. J.
Defendant was charged with second-degree disorderly conduct pursuant to ORS 166.025(1)(a) based on the allegation that he " did unlawfully and recklessly create a risk of public inconvenience, annoyance and alarm by engaging in violent, tumultuous and threatening behavior." Following a trial to the court, defendant was convicted of that charge. On appeal, he challenges the trial court's denial of his motion for judgment of acquittal, asserting that there was not legally sufficient evidence to support a conviction for second-degree disorderly conduct. As explained below, we agree with defendant that there was not legally sufficient evidence that he had engaged in " fighting or in violent, tumultuous, or threatening behavior" under ORS 166.025(1)(a). Accordingly, we reverse.
We state the relevant facts " in the light most favorable to the state, 'accepting reasonable inferences and reasonable credibility choices that the factfinder could have made.'" State v. Atwood, 195 Or.App. 490, 492, 98 P.3d 751 (2004) (quoting State v. Presley, 175 Or.App. 439, 443, 28 P.3d 1238 (2001)). Early on a sunny evening in August 2013, G, a nine-year-old girl, was with her family at a public park. G played in a water feature in the park in her swimming suit and then asked her parents if she could go and look at a statue about 50 feet away. While G was near the statue, defendant--whom G did not know--approached her and asked her what time it was. While he asked the question, defendant stood near G but did not touch her. G responded that she did not know the time and her father, Ramirez, who had seen defendant speak to G, began walking toward the two. As she observed Ramirez walking toward them, G, who felt afraid, said, " Dad." Defendant, who had continued to stand and look at G after she responded to his question, then walked away. According to Ramirez, defendant had " some kind of surprise in his face" and then, as he walked away, turned and looked back at G. Ramirez described the look as " no good at all." G's mother then called 9-1-1. Ramirez was angry as a result of defendant's conduct.
Ramirez followed defendant and observed him approach several other girls and women. Some of the women [270 Or.App. 152] looked at their wrists as though they were telling defendant the time. Ramirez also saw defendant speak with a woman who then stood and gave him a hug. After observing defendant, Ramirez asked a woman working in the park to call 9-1-1, which she did.
As defendant crossed the street to leave the park, he was detained and, eventually,
arrested and charged with second-degree disorderly conduct. After the state presented its case, defendant moved for a judgment of acquittal. Citing State v. Cantwell, 66 Or.App. 848, 676 P.2d 353, rev den, 297 Or. 124, 681 P.2d 134 (1984), he contended that the conduct in question did not satisfy the elements of the statute. The court denied defendant's motion, and subsequently convicted him of second-degree disorderly conduct.
On appeal, as noted, defendant contends that the trial court erred in denying his motion for judgment of acquittal. In reviewing a trial court's denial of a motion for judgment of acquittal, viewing the evidence in the light most favorable to the state, we must " determine whether a rational factfinder could have found the elements of the crime[ ] in ...