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State v. Garcia

Supreme Court of Oregon

August 3, 2017

STATE OF OREGON, Petitioner on Review,
v.
CATHERINE E. GARCIA, Respondent on Review.

          Argued and submitted March 6, 2017, at Lewis & Clark College, Northwestern School of Law School, Portland, Oregon.

         On review from the Court of Appeals CC 120545265; CA A152842.[*]

          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.

          Rond 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 Defense Services.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, and Nakamoto, Justices. [**]

         [361 Or. 673] Case Summary:

         Defendant 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.

         Held:

         (1) The 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 verdict form.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

         [361 Or. 674] NAKAMOTO, J.

         Defendant 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.[1] 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 596 (2016).

         On 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.

         I. BACKGROUND

         We take 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).

         Defendant 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.

         As 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."

         At 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.[2] 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.

         Following 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 ORS 162.247(3).

         The 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 ...

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