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State v. Tyler

Court of Appeals of Oregon

April 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DAYNANTHONY TYLER, Defendant-Appellant.

          Argued and submitted June 14, 2016.

         Multnomah County Circuit Court 15VI00367; Steven R. Evans, Judge pro tempore.

          Emery Wang argued the cause and fled the brief for appellant.

          Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary: Defendant appeals a judgment of conviction of ORS 814.070 (1) (a), which prohibits a pedestrian from "improperly proceeding along a highway, " assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant argues that the legislature did not intend for ORS 814.070(1)(a) to apply to pedestrians who are in the process of crossing the roadway. Held: ORS 814.070(1)(a) was not intended to apply to pedestrians who are in the process of crossing the roadway and there is insufficient evidence in the record for the court to find that defendant was "improperly proceeding along" the roadway. On this record, the court could not have found by a preponderance of the evidence that defendant's direction of travel was in a line that generally paralleled the northbound direction of the roadway and, therefore, the trial court erred when it denied defendant's motion for judgment of acquittal.

          TOOKEY, J.

         Defendant appeals a judgment convicting him of ORS 814.070(1)(a), [1] "pedestrian with improper position upon or improperly proceeding along a highway, " assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant argues that the legislature did not intend for ORS 814.070(1) to apply to pedestrians who are in the process of crossing the roadway. We agree with defendant; ORS 814.070(1) was not intended to apply to pedestrians who are in the process of crossing the roadway, and there is insufficient evidence in the record for the court to find that defendant was "improperly proceeding along" the roadway. ORS 814.070(1). Accordingly, we reverse.

         In reviewing a motion for judgment of acquittal, "we state the facts in the light most favorable to the state." State v. Massei. 247 Or.App. 30, 32, 268 P.3d 774 (2011). Southeast Division Street in Portland, Oregon, runs east-west. Southeast 121st Avenue runs north from where it intersects with Southeast Division Street. Division is a four-lane road with two lanes of travel in each direction that are separated by a median lane that can be used by cars turning left off of Division onto the side streets. In this case, a car that had been traveling eastbound on Division pulled into the median lane to turn left onto 121st. Defendant was walking westbound on Division and he started crossing 121st. As defendant "was walking diagonally northbound across" 121st, he was struck by the car turning left off of Division onto 121st. Defendant was approximately 20 feet north of where 121st intersects with Division when he was struck by the car. Officer Schmautz arrived at the accident scene and issued defendant a citation for being a pedestrian in an improper position upon, or improperly proceeding along, a roadway in violation of ORS 814.070(1).

         After the state presented its case, defendant moved for judgment of acquittal. Defendant, quoting State v. Tyler. 168 Or.App. 600, 607, 7 P.3d 624 (2000), argued that ORS 814.070(1) "describes various prohibited methods of walking along a highway, " but does not apply to a pedestrian "crossing a street at a place other than a crosswalk, other than at right angles." Defendant continued, asserting that the court could not find him guilty of violating ORS 814.070(1) because "the only thing that the state has shown that [defendant] has done, [is] that he's crossed the street * * * not in the crosswalk, and * * * not at a right angle." The trial court rejected defendant's reliance on Tyler and ruled that,

"for purposes of [ORS 814.070(1)], *** [defendant] was walking diagonally across the street in the lane of traffic, and not in a position along and upon any shoulder, as far as practicable away from the traveled roadway, and *** not near the edge. [Defendant] was not using any available shoulder or whatever sidewalk was available to him. And he was certainly not near the side. And that he is in violation of [ORS] 814.070. And by a preponderance of the evidence I find him guilty."

         On appeal, defendant reprises his argument that "[t]he [s]tate has failed to show that defendant has violated * * * ORS 814.070, which prohibit [s] various ways of walking along or standing on a roadway, but does not apply to the crossing of a street." The state contends that the trial court correctly denied defendant's motion for judgment of acquittal because "[t]he state presented testimony that defendant was crossing 121st 'diagonally northbound' *** and that 121st runs north-south." The state asserts that that evidence "entitled a factfinder to find that defendant was walking 'along' 121st at the time, in the sense that he was generally moving in the same direction that the roadway follows."

         In a case like this one, involving a violation as opposed to a crime, "[w]hat is required to prove a violation of a statute enacted by the legislature at trial is a question of legislative intent subject to the usual rules of statutory construction." State v. Kins. 199 Or.App. 278, 283, 111 P.3d 1146, rev den, 339 Or 544 (2005). After we settle the legal issue of what is required to prove a violation of a statute, we view the evidence in the light most favorable to the state to determine whether the court could have found that the essential elements of the violation had been proved by "a preponderance of the evidence." ORS 153.076(2).

         The issue on appeal centers on what is required to prove that defendant improperly "proceed[ed] along" 121st. ORS 814.070 (1)(a).[2] As noted, our first task is to ascertain the legislature's intentions by applying the "usual rules of statutory construction." King, 199 Or.App. at 283. "We ascertain the legislature's intentions by examining the text of the statute in its context, along with relevant legislative history, and, if necessary, canons of construction." State v. ...


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