and submitted March 6, 2017, at Lewis & Clark College,
Northwestern School of Law School, Portland, Oregon.
review from the Court of Appeals CC 120545265; CA
Peenesh H. Shaw, Assistant Attorney General, Salem, argued
the cause and fled the brief for petitioner on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Chananudech, Deputy Public Defender, Salem, argued the cause
and fled the brief for respondent on review. Also on the
brief was Ernest G. Lannet, Chief Defender, Offce of Public
Balmer, Chief Justice, and Kistler, Walters, Landau, and
Nakamoto, Justices. [**]
Or. 673] Case Summary:
was charged with two counts of interfering with a peace
officer and with resisting arrest. However, by its own terms,
the statute defining interfering with a peace officer, ORS
162.247, "does not apply" in situations in which a
person is "engaging in * * * [a]ctivity that would
constitute resisting arrest" as defined by statute.
Based on that exception, defendant argued at trial that the
state could not charge her with interfering because it had
also charged her with resisting arrest for the same acts. The
trial court disagreed and denied defendant's motion for
judgment of acquittal on the interfering counts. Concluding
that ORS 162.247(3)(a) prohibited the type of double charging
present here, the Court of Appeals reversed.
state is not precluded by ORS 162.247(3) from alleging
interfering and resisting arrest as alternative charges for
the same actions. (2) When a defendant contests culpability
for resisting arrest, the trial court should submit both
charges to the jury with an appropriate instruction or
decision of the Court of Appeals is reversed. The judgment of
the circuit court is affirmed.
Or. 674] NAKAMOTO, J.
was charged with two counts of interfering with a peace
officer under ORS 162.247 and one count of resisting arrest
under ORS 162.315 for her actions to prevent officers from
arresting her boyfriend at a political march. Pursuant to ORS
l62.247(3)(a), the statute defining the offense of
interfering with a peace officer "does not apply"
when the defendant is "engaging in *** [a]ctivity that
would constitute resisting arrest." At trial, defendant
moved for a judgment of acquittal on the interfering counts,
arguing that ORS 162.247(3) prohibited the state from
charging her with both interfering and resisting arrest for
the same acts. The trial court denied the motion, and the
Court of Appeals reversed, agreeing with defendant that the
legislature had intended to preclude double charging.
State v. Garcia. 278 Or.App. 639, 649-50, 377 P.3d
review, we are asked to determine the import of ORS
l62.247(3)(a) and whether the trial court erred by denying
defendant's motion and submitting both sets of charges to
the jury when, as the parties agree, the statute would not
permit conviction on both. We conclude that ORS 162.247(3)(a)
does not preclude the state from alleging interfering and
resisting arrest as alternative charges, even when based on
the same acts, and, when the defendant disputes the charges,
that the trial court should submit both charges to the jury
with an appropriate instruction or verdict form. In this
case, the trial court properly submitted all the charges to
the jury. Therefore, we reverse the decision of the Court of
Appeals and affirm the judgment of the circuit court.
the facts from the Court of Appeals opinion as supplemented
by the trial court record. When, as here, the trial court
denies a defendant's motion for judgment of acquittal, we
view the facts in the light most favorable to the state.
State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431');">880 P.2d 431
[361 Or. 675] (1994), cert den, 514 U.S. 1005, 115
S.Ct. 1317, 131 L.Ed.2d 198 (1995).
and her boyfriend, Storaasli, participated in a May Day march
in Portland. At a certain point, the permit for the march
lapsed and the marchers were directed to leave the streets.
Storaasli disregarded the order and remained in the streets
to dance. As responding police officers sought to subdue
Storaasli and to arrest him, defendant ran towards him. In
response, an officer punched defendant in the chest, causing
her to fall to the ground. Recovering, defendant proceeded to
insert herself between the officers and Storaasli by wrapping
her arms around Storaasli's waist. While doing so,
defendant called to other marchers to help her
"unarrest" Storaasli. The officers repeatedly
ordered defendant to release Storaasli, which she ignored.
Ultimately, the officers succeeded in separating defendant
from Storaasli and arrested both of them.
relevant here, defendant was charged by information with two
counts of interfering with a peace officer, ORS 162.247, and
one count of resisting arrest, ORS 162.315. The state based
the two interfering counts on the same incident, but assigned
to each a different statutory violation: (1) a failure to
obey a lawful order and (2) an attempt to prevent an officer
from his lawful duties with regard to another person. The
resisting arrest charge simply alleged that defendant
"intentional [ly] resist [ed]" officers "in
making an arrest."
trial, the testimony presented in the state's
case-in-chief revealed that the resisting arrest charge did
not relate to defendant's own arrest but to her
resistance to Storaasli's arrest. Correctly concluding
that all three charges related to defendant's actions in
response to the officers' efforts to arrest Storaasli,
defendant moved for a judgment of acquittal on both
interfering charges. By its own terms, the statute
criminalizing and defining interfering with a peace officer,
"does not apply in situations in which the person is
engaging in *** [a]ctivity that would constitute resisting
arrest under ORS 162.315." ORS 162.247(3)(a). Defendant
reasoned that ORS 162.247(3)(a) [361 Or. 676] prohibited the
submission of the interfering counts to the jury because they
flowed from the same activity giving rise to the resisting
arrest charge. The state did not disagree that defendant
could not be convicted on both the interfering charges and
the resisting-arrest charge; however, it argued that all
counts should be submitted to the jury. The trial court
denied defendant's motion for judgment of acquittal.
the presentation of her case, defendant again sought a
judgment of acquittal on the interfering charges. The state
objected to the form of motion, noting that the issue was
more appropriately brought as a pretrial demurrer or
post-conviction motion in arrest of judgment. The state
argued that, because the statute "does not apply to
conduct constituting resist[ing] arrest, " the trier of
fact must first make the factual finding that resisting
arrest occurred. Defendant responded that she could not have
filed a demurrer because the state's information was
insufficient to identify the basis for the charges, but she
offered to craft her request as a motion to dismiss so as to
"carry out the legislature's instruction" in
trial court deferred ruling on defendant's alternative
motions and heard additional argument the next day. The state
reaffirmed its position that all charges should be submitted
to the jury. However, the state clarified that, if the jury
came back with guilty verdicts on both the interfering
charges and the resisting arrest charge,
"the [interfering] charges [would be] subsumed by the
jury's finding with respect to resisting arrest. And,
therefore, it may be, as I mentioned previously, a merger
issue, a legal issue with respect to the Court's entry of
judgment, because the jury has found * * * that the defendant
did commit the three offenses, but it would be ...