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State v. Sippel

Court of Appeals of Oregon

October 25, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ERIK JOHANN SIPPEL, Defendant-Appellant.

          Submitted September 1, 2017

         Multnomah County Circuit Court 15CR37363;Kathleen M. Dailey, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant was convicted of interfering with a peace officer for refusing to obey a lawful order, ORS 162.247(1)(b). On appeal, defendant argues that the trial court erred by allowing the state, during rebuttal closing argument, to introduce a new theory as to which lawful order he had disobeyed, which left him with no meaningful opportunity to address the argument and created a risk that the jury would find him guilty without concurring as to which factual occurrence constituted the crime. In response, the state concedes that the trial court should have foreclosed the state from relying on a new theory of guilt or at least issued a concurrence instruction to the jury. Held: Because the trial court did not require the state to elect a theory of the crime, the court's subsequent failure to give the necessary concurrence instruction was plainly erroneous. And, given the manifest potential, based on the prosecutor's rebuttal, for the jury to find defendant guilty without actually agreeing on what conduct violated ORS 162.247(1)(b), the Court of Appeals exercised its discretion to correct the error.

         Conviction for interfering with a peace officer reversed and remanded; otherwise affirmed.

         [288 Or. 392] LAGESEN, P.J.

         Defendant was convicted of interfering with a peace officer for refusing to obey a lawful order, ORS 162.247 (1)(b). On appeal, defendant argues that the trial court erred by allowing the state, during rebuttal closing argument, to introduce a new theory as to which lawful order he had disobeyed. According to defendant, the introduction of that new theory, at such a late stage in the proceedings, left him with no meaningful opportunity to address the argument and created a risk that the jury would find him guilty without the requisite number of its members concurring as to which factual occurrence constituted the crime. In response, the state concedes that the trial court "should have either foreclosed the state from relying on a new theory of guilt or at least issued a concurrence instruction to the jury, " notwithstanding defendant's failure to request such an instruction. For the reasons that follow, we agree with and accept the state's concession that the court committed plain error under the circumstances, and we reverse and remand the judgment of conviction.

         The relevant facts are procedural in nature. After a traffic stop of defendant escalated into a confrontation with police, he was charged with interfering with a peace officer.[1] The charging instrument alleged that defendant had "unlawfully and intentionally refuse[d] to obey a lawful order by [Officer] Bryson, " but it did not specifically identify which of Bryson's orders defendant had disobeyed. Instead, the prosecutor appeared to elect a theory during her opening statement, explaining to the jury that the state would prove that defendant had disobeyed orders by police "to get back in the car."

         During its case-in-chief, the state presented evidence, including a videotape of the traffic stop, showing that Bryson repeatedly directed defendant, who was approaching the officer, to get back into defendant's car. The state also presented evidence that, during an ensuing effort to detain defendant, Bryson had ordered defendant to put his hands behind his back and a different officer, Kerridge, had [288 Or. 393] ordered defendant to put his arms behind his back, but that defendant had continued to struggle against the arresting officers. Defendant himself testified that, as he was being detained, "Officer Kerridge got my right arm and I stuck my right arm like into the open window [of the car] to try and like not get pulled back."

         During her closing argument, the prosecutor focused initially on defendant's refusal to obey Bryson's orders to get back into his car; defendant's closing argument then responded to that theory. However, during rebuttal, the prosecutor suggested that defendant also had refused to obey a lawful order to put his arms behind his back. She argued, "He told you himself. You heard that there were other lawful orders given. Put your arms behind your back. He didn't listen to that."

         Defendant immediately objected that the prosecutor was offering a new theory of the crime during rebuttal. The court sustained the objection but explained that it would allow the prosecutor to "say it another way." The prosecutor then repeated her argument that ...


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