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State v. Washington

Court of Appeals of Oregon

July 6, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ALEXANDRIA LYNN WASHINGTON, Defendant-Appellant.

          On appellant's amended petition for reconsideration fled April 26, 2017.

          Affirmed without opinion March 8, 2017. 284 Or.App. 315.

         Washington County Circuit Court D143941M, D151118M Donald R. Letourneau, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Offce of Public Defense Services, for petition.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore.

         Case Summary: Defendant and the state petition for reconsideration of State v. Washington, 284 Or.App. 315, 391 P.3d 1011 (2017), which affirmed defendant's conviction for interfering with a peace officer (IPO), ORS 162.247, without a written opinion. The parties agree that, under the Supreme Court's decision in State v. McNally, 361 Or. 314, 392 P.3d 721 (2017), which was issued after Washington, defendant's conviction for IPO should be reversed because the conduct upon which the conviction was based constituted "passive resistance, " which is expressly excluded from the definition of IPO. ORS 162.247 (3) (b) . Held: Under McNally, "passive resistance" refers to "noncooperation with a lawful order of a peace officer that does not involve active conduct." 361 Or at 339. Because there was no evidence that defendant's conduct constituted anything other than "passive resistance, " defendant is entitled to reversal of her IPO conviction.

         [286 Or.App. 651] Reconsideration allowed; former disposition withdrawn. In Case No. D151118M, conviction for interfering with a peace officer reversed; otherwise affirmed. In Case No. D143941M, affirmed.

         [286 Or.App. 652]

          DUNCAN, J. PRO TEMPORE

         In this criminal case, defendant appealed from the judgments in two cases, assigning error to her conviction for interfering with a peace officer (IPO), ORS 162.247, [1] in one of the cases.[2] We affirmed without a written opinion, State v. Washington, 284 Or.App. 315, 391 P.3d 1011 (2017).

         Now, defendant and the state have filed a joint petition for reconsideration of that decision.[3] See ORAP 6.25 (governing petitions for reconsideration). The parties agree that, under the Supreme Court's decision in State v. McNally, 361 Or. 314, 392 P.3d 721 (2017), which was issued after our decision in this case, defendant's conviction for IPO should be reversed because the conduct upon which the conviction was based constituted "passive resistance, " which is expressly excluded from the definition of IPO. ORS l62.247(3)(b) (the IPO statute "does not [286 Or.App. 653] apply in situations in which the person is engaging in * * * passive resistance"). For the reasons explained below, we agree.

         A police officer stopped defendant for traffic violations and ordered her to provide her identification, and defendant refused to do so. The officer told defendant that she was required to produce her license and that failure to do so could result in arrest. Defendant again refused to produce her license. Defendant asked the officer for his name and badge number, told him that she was recording their conversation on her phone, and asked him questions that she had written down on a piece of paper, including questions about whether the officer was going to harm her. Although defendant did not provide her identification, she was calm and polite, and she did not engage in any threatening or violent behaviors.[4]

         Based on defendant's failure to provide her identification, the state charged defendant with IPO, in violation of ORS l62.247(1)(b), alleging in a complaint that defendant "did unlawfully and knowingly refuse to obey a lawful order of [the officer], a person known by the defendant to be a peace officer."

         During the subsequent jury trial, defendant moved for a judgment of acquittal on the IPO charge, asserting that her conduct constituted "passive resistance" under State v. Patnesky,265 Or.App. 356, 335 P.3d 331 (2014), abrogated by State v. McNally,361 Or. 314, 392 P.3d 721 (2017), in which we held that, for the purposes of ORS 162.247, "passive resistance" refers to "specific acts or techniques that are commonly ...


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