Argued and Submitted July 31, 2014.
12CR0197. Curry County Circuit Court. Jesse C. Margolis, Judge. (Judgment), Cynthia Lynnae Beaman, Judge. (Second Supplemental Judgment).
Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, 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 DeVore, Presiding Judge, and Ortega, Judge, and Garrett, Judge.[*]
[271 Or.App. 547] GARRETT, J.
The owner of a mobile home, his three roommates, and an invited guest were involved in a physical confrontation that resulted in police and an ambulance being summoned. The fight was confined to the interior of the mobile home and involved only the five people present. Defendant, one of the roommates, was convicted of second-degree disorderly conduct, ORS 166.025(1), and harassment, ORS 166.065(3). The trial court sentenced defendant to 24 months of bench probation and ordered him to pay restitution. On appeal, defendant argues that trial court should have granted his motion for a judgment of acquittal on the disorderly conduct charge. Defendant also assigns error to the restitution award.
For the reasons explained below, we agree with defendant that the state failed to show that the fight inside a private residence posed a risk of " public inconvenience, annoyance or alarm," as required by the disorderly conduct statute. We therefore reverse defendant's conviction for second-degree disorderly conduct. As to defendant's challenge to the restitution award, we conclude that it is not properly before us in this appeal.
We turn to the facts pertinent to defendant's conviction for disorderly conduct. On the evening at issue, five people gathered in a mobile home owned by Silva. Three of those people--defendant, Mumper, and Rains--were Silva's roommates and had lived in the mobile home for approximately six weeks. A guest, Addison, visited the home that day. The group drank beer and ate dinner. After dinner, defendant and Silva got into a fight. In the commotion that followed, Mumper suffered a broken leg. Silva, Mumper, and Rains testified that defendant started the fight by attacking Silva, that defendant kicked and broke Mumper's leg when she tried to pull defendant off of Silva, and that at one point defendant grabbed and held Rains up by her neck. Defendant testified that Silva started the fight, that Silva was the one who held Rains by the neck, and that defendant never kicked or hurt Mumper in any way.
The exact sequence of events that followed the fight is also unclear. At some point after the fight ended, Silva [271 Or.App. 548] called 9-1-1. At about 9:00 p.m., an ambulance arrived and transported Mumper to the hospital. Later, at 11:47 p.m., Deputy Lorentz arrived at Silva's home and spoke to defendant, Silva, and Addison. A few minutes later, Lorentz was called to a different incident and left without making any arrests. About an hour later, someone made a second 9-1-1 call and Lorentz returned to the mobile home. Lorentz interviewed defendant a second time and learned that defendant had attacked Silva because he had been offended by some of Silva's remarks. Lorentz arrested defendant.
Defendant was charged with strangulation (of Rains), fourth-degree assault (of Mumper), harassment (of Silva), and second-degree disorderly conduct. At the close of the state's evidence, defendant moved for a judgment of acquittal on the disorderly conduct charge, arguing that the state had presented no evidence of any risk of public inconvenience, annoyance, or alarm. The state responded that the other residents and guests of the mobile home, and the police officers who responded to the scene, were members of the public who had been inconvenienced, annoyed, and alarmed. The trial court denied defendant's motion. The jury convicted defendant of disorderly conduct and harassment, but was unable to reach a verdict on the strangulation and assault counts. The state elected not to retry defendant on those two counts; the trial court dismissed them on the state's motion. On the remaining counts, defendant was sentenced to 24 months of bench probation.
On appeal, defendant assigns error to the trial court's denial of his motion for a judgment
of acquittal, reprising his argument below that the fight posed no risk to the " public."
Defendant's challenge to the sufficiency of the evidence as to the disorderly conduct charge requires us to answer a narrow question: whether, after examining the evidence in the light most favorable to the state, a rational trier of fact could have found that defendant recklessly created a risk of " public inconvenience, annoyance or alarm." State v. Liston, 212 Or.App. 703, 705, 159 P.3d 335, rev den, 343 Or. 206, 166 P.3d 535 (2007) (describing our standard for reviewing the denial ...