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State v. Anderson

Court of Appeals of Oregon

September 6, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES LEE ANDERSON, aka James Leerobert Anderson, Defendant-Appellant.

          Submitted November 21, 2017

          Multnomah County Circuit Court 15CR46981 Jerry B. Hodson, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

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

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Defendant appeals a judgment of conviction for resisting arrest, ORS 162.315, assigning error to the trial court's denial of his motion for a judgment of acquittal. Defendant argues that the state failed to prove two elements of the charge: (1) that defendant's conduct created a "substantial risk of physical injury to any person" under the statute and (2) that defendant had the requisite intent with respect to that risk. Held: The trial court did not err in concluding that the state proved the first element because there was sufficient evidence to support a finding that defendant created a substantial risk of injury to himself and police officers. Defendant's argument regarding the second element was unpreserved.

         Affirmed.

          [293 Or.App. 698] GARRETT, J.

         Defendant appeals a judgment of conviction for resisting arrest, ORS 162.315, assigning error to the trial court's denial of his motion for a judgment of acquittal (MJOA). Defendant argues that the state failed to prove two elements of resisting arrest: (1) that defendant's conduct created a "substantial risk of physical injury to any person" within the meaning of ORS 162.315(2)(c), and (2) that defendant had the requisite intent with respect to that risk. With respect to the first element, we conclude that there was sufficient evidence to support a finding that defendant created a substantial risk of physical injury to himself and police officers. With respect to the second, we conclude that defendant failed to preserve the argument that he now makes on appeal, and, therefore, we do not reach its merits. Accordingly, we affirm.

         In reviewing the trial court's denial of defendant's MJOA, we "review the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the state." State v. Eastep, 361 Or. 746, 748, 399 P.3d 979 (2017). We then determine whether "a rational trier of fact could have found the essential elements of the offense proved beyond a reasonable doubt." State v. Horton, 291 Or.App. 65, 69, 418 P.3d 31 (2018).

         We state the facts consistently with our standard of review. K called 9-1-1 to report that defendant had assaulted her, and three uniformed police officers-Herrera, Blake, and Skeahan-responded to defendant's home. When the officers arrived, K told them that defendant had punched her and that defendant was inside the house. Herrera decided to place defendant under arrest, and Herrera and Blake entered the home. Skeahan remained outside with K.

         After learning that defendant was upstairs, Herrera and Blake stood at the bottom of the stairs, announced their presence, and instructed defendant to come down the stairs. The staircase was steep, dimly lit, and "built for one average size person to walk down." Defendant, who is approximately six feet tall and 245 pounds, descended the stairs facing the officers, with his hands behind his back. Herrera told defendant, "Let me see your hands," and defendant responded, [293 Or.App. 699] "Why?" When defendant reached the bottom of the stairs, Herrera told him that he was under arrest. Defendant asked, "What for?" He then stated either "I'm not going to jail" or "I'm not going anywhere," and his voice became "elevated."

         Herrera put on latex gloves, and he and Blake each grabbed one of defendant's wrists. At that point, defendant "tensed up very hard" and he pulled his arms toward his body. Herrera told defendant that he did not want to fight and again stated that defendant was under arrest. While still in the stairwell, the officers attempted to put defendant's arms behind his back. Defendant "tried to push [the officers] off and push [the officers] against the wall." The officers unsuccessfully tried to pin defendant against the wall. Defendant was "pushing back" and was "trying to push his way through" the officers to the point that Blake was "using most of [his] strength to try to hold onto" defendant. During the struggle, Herrera told defendant to stop resisting and to put his hands behind his back.

         Blake radioed Skeahan for assistance. After Skeahan entered the home, he saw Herrera and Blake "wrestling" with defendant. Defendant, Herrera, and Blake "stumbled" from the base of the stairs into the nearby kitchen. The officers decided to take defendant to the ground because defendant was "trying to break through [the officers'] holds." Skeahan approached defendant, put his hands on defendant's shoulder, and "lift [ed]" defendant's jacket "a little bit," which "forced everybody towards" Skeahan. Skeahan then "stepped out of the way" as "everybody was kind of forced down to the floor." When the group hit the kitchen floor, the "refrigerator shook a little bit." ...


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