Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Moreno

Court of Appeals of Oregon

August 2, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
PETER JOHN MORENO, aka PeterJohn Joshua Moreno, aka Peterjohn Moreno, Defendant-Appellant.

          Submitted August 23, 2016

         Jackson County Circuit Court 14CR02259, 14CR05274 J. Adam Peterson, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Vanessa McDonald, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Shorr, Judge, and Sercombe, Senior Judge.

         Case Summary:

         After a jury trial, defendant was convicted of fourth-degree assault, ORS 163.160, harassment, ORS 166.065, resisting arrest, ORS 162.315, and interfering with a peace offcer, ORS 162.247. On appeal, defendant challenges only his conviction for resisting arrest. He assigns error to the trial court's refusal to give his requested choice of evils jury instruction, Uniform Criminal Jury Instruction 1103. Defendant argues that he was entitled to the instruction because evidence in the record supported it and it was both a complete and correct statement of the law.

         Held:

         The trial court did not err. In order to be entitled to a jury instruction, the instruction must be a correct and complete statement of the law. The choice of evils defense may not be used if doing so would be inconsistent with another provision of the law. Given the facts of the case, defendant's jury instruction would have permitted the jury to apply the choice of evils defense in a way that would have been inconsistent with another provision of the law, the prohibition on the use of physical force to resist arrest. The jury could have [287 Or.App. 206] concluded that defendant used physical force to resist arrest, and defendant's proposed instruction did not instruct the jury that, if it found that defendant used physical force to resist arrest, defendant could not raise a choice of evils defense. Therefore, defendant's jury instruction was not complete.

         Affirmed.

         [287 Or.App. 207] SHORR, J.

         Defendant appeals a judgment of conviction for fourth-degree assault, ORS 163.160, harassment, ORS 166.065, resisting arrest, ORS 162.315, and interfering with a peace officer, ORS 162.247. His sole challenge on appeal is to his conviction for resisting arrest. Defendant contends that the trial court erred when it declined to give defendant's requested jury instruction on the choice of evils defense. We review the trial court's refusal to give the requested jury instruction for errors of law and, as explained below, affirm. See State v. Oneill, 256 Or.App. 537, 538, 303 P.3d 944, rev den, 354 Or. 342 (2013).

         The following facts are undisputed. Jackson County Sheriff's Department Officers LaFord and Emel arrested defendant at his home. While the officers were transporting him to jail, the officers noticed that defendant had leaned over in his seat. When the officers tried to get his attention, defendant did not respond. As a result, LaFord and Emel stopped the patrol car on the side of the road to get defendant out of the car and called for an ambulance to transport him to the hospital for further medical evaluation. Defendant was subsequently medically cleared for transport and lodging in the jail. When leaving the hospital, defendant got into the back seat of the patrol car before the officers were able to handcuff him. Emel informed defendant that he needed to be handcuffed to ride in the back of the patrol car. Defendant asked the officers to "put [the handcuffs] in front of [him]." Defendant also put his arms out in front of him, to which the one of the officers responded, "We're not putting handcuffs in front, we have to put them behind. We'll put two sets of cuffs on[.]"[1] Defendant protested the use of the handcuffs on the basis that he had "cancer all over [his] arms and stuff" and told the officers "[y]ou can't put handcuffs on this arm."

         Ultimately, defendant got out of the backseat, faced the patrol car, and put his hands behind his back. As Emel began to put the handcuffs on defendant, "defendant [287 Or.App. 208] aggressively separated his hands, [and] turned his body." The officers told defendant to "stop resisting, " and defendant attempted to lift and roll his shoulder backward, which LaFord characterized as "another form of aggression of not wanting to be handcuffed." LaFord was able to get defendant's right arm behind his back with his hand up. LaFord testified that he felt defendant stiffen his arm, although it was not to the point that LaFord could not control it. LaFord told defendant, "Stop resisting. Knock it off." After one of the officers told defendant that he was being charged with resisting arrest, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.