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State v. McNally

Court of Appeals of Oregon

July 8, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
SEAN MICHAEL McNALLY, Defendant-Appellant

Submitted February 25, 2014.

Page 1256

111152528. Multnomah County Circuit Court. Alicia A. Fuchs, Judge.

Peter Gartlan, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

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

OPINION

Page 1257

[272 Or.App. 203] ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for second-degree criminal trespass, ORS 164.245, interfering with a peace officer, ORS 162.247, and resisting arrest, ORS 162.315, raising two assignments of error. Defendant first contends that the trial court erred by refusing to instruct the jury that a person does not commit the crime of interfering with a peace officer by engaging in passive resistance. Defendant next contends that the trial court erred by instructing the jury that a peace officer " may use physical force" when arresting a person if " the officer reasonably believes physical force is necessary to make an arrest." As explained below, we reverse defendant's conviction for resisting arrest but otherwise affirm.

Defendant got into an argument with a ticket agent at an intercity bus station in Portland. The ticket agent called a security guard, and the guard asked defendant to leave the station. Defendant refused to leave. The security guard called the police, and two officers arrived 15 to 20 minutes later.

The officers told defendant to grab his things and leave the station. When defendant refused to do that, an officer picked up defendant's bags and placed them outside the bus station, where defendant followed him. A crowd gathered around defendant and the officers and, after several minutes, one of the officers turned to the crowd and asked whether defendant deserved another chance to leave. At trial, the officers' accounts of what transpired next differed dramatically from defendant's account. The officers testified that defendant was very agitated and repeatedly yelled at them, telling them that he was ready for a fight and putting up his fists. Defendant testified that the officers were unnecessarily aggressive and that they used an unreasonable amount of force in arresting him. He noted that they repeatedly told him that they were not there to mediate the dispute and that one of the officers had covertly tried to unholster his Taser.

The officers eventually decided to arrest defendant. Instead of telling defendant that he was under arrest, one of the officers said " 1061" to the other officer--which the officer [272 Or.App. 204] testified is shorthand for " let's move in and * * * handcuff this person" --and the other officer nodded. The officers explained at trial that they believed that defendant wanted to fight them and, therefore, telling him that he was under arrest would have been counterproductive. While defendant was bending down to pick up a cigarette that he had dropped, one of the officers put defendant in a headlock. Defendant got out of the headlock and began grappling with the officer.

The other officer then tackled defendant and the officer who was grappling with defendant, bringing all three to the ground. Defendant testified that he stopped struggling once he was on the ground and realized that he was under arrest. The state charged defendant with second-degree trespass, interfering with a peace officer, and resisting arrest. Defendant asserted at trial that he should be acquitted of interfering with a peace officer because, at most, his actions constituted passive resistance. See ORS 162.247(3) (stating that a person who offers only " passive resistance" does not commit the crime of interfering with a peace officer). He also raised the defense of self-defense to the charge of resisting arrest. See ORS 161.209 (providing that a person may use physical force to defend himself from " what the person reasonably believes to be the use or imminent use of unlawful physical force" ).

After both sides rested, defendant asked the trial court to give two special jury instructions. The first proposed instruction addressed the circumstances under which a person can lawfully resist an arresting officer's use of force. The proposed instruction differed substantively from the instruction that the court ultimately gave the jury, in that it omitted any discussion of whether ...


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