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State v. Kreis

Court of Appeals of Oregon

October 31, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ERIC LAWRENCE KREIS, Defendant-Appellant.

          Argued and submitted October 27, 2015, McLoughlin High School, Milton-Freewater.

          Beaverton Municipal Court M808542 Les Rink, Judge.

          Marc Brown, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services.

          Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.

          [294 Or.App. 555] Case Summary: Defendant appeals a judgment of conviction after a jury found him guilty of interfering with a peace officer by refusing to obey a lawful order, assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant contends that the officer's order for defendant to turn around and to put his hands behind his back was not lawful, because it was a warrant less seizure in violation of Article I, section 9, of the Oregon Constitution. Defendant also challenges the imposition of an award of attorney fees for court-appointed counsel on the offense of resisting arrest, of which defendant was acquitted. Held: The peace officer's order was lawful as an order based on officer safety concerns and was not a warrantless seizure of defendant. The trial court therefore did not err in denying defendant's motion for judgment of acquittal on the interfering charge. The statutes that authorize an assessment of attorney fees for court-appointed counsel do not limit the assessment to attorney fees related to the charges on which the defendant was convicted. The trial court therefore did

         Affirmed.

          [294 Or.App. 556] EGAN, C. J.

         Defendant appeals from a judgment of conviction after a jury trial for interfering with a peace officer by refusing to obey a lawful order, ORS l62.247(1)(b), assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant contends that the officer's order for defendant to turn around and put his hands behind his back was not a lawful order, because it was a warrantless seizure in violation of Article I, section 9, of the Oregon Constitution. The state responds that the order was a lawful order justified by officer-safety concerns. Defendant also challenges the imposition of an award of attorney fees for court-appointed counsel on the offense of resisting arrest, of which defendant was acquitted. We conclude that the court did not err and affirm.

         In reviewing the court's denial of the motion for judgment of acquittal, we view the facts in the light most favorable to the state and draw all reasonable inferences in the state's favor. State v. Lupoli, 348 Or. 346, 366, 234 P.3d 117 (2010). However, the facts are largely undisputed and only questions of law are raised on appeal.

         Beaverton Police Officers Crino and Mendez were on patrol and drove by a restaurant parking lot that was the site of frequent thefts from cars. The officers were aware that the restaurant had been closed for 20 minutes. As the officers drove through the parking lot, they saw defendant standing near several parked cars. The officers decided to investigate whether defendant was looking into vehicles or whether he was intoxicated and about to drive. While Mendez went to speak with defendant, Crino stayed with the patrol car and learned that defendant matched the description of the owner of a car by which he was standing. Mendez returned and told Crino that defendant did not want to talk. The officers then saw defendant walk in the direction of a secluded patio at the back side of the restaurant, and decided to follow on foot. They approached defendant at the back door of the restaurant.

         Crino told defendant that the restaurant was closed and asked defendant why he was there. He asked defendant's name, if he was employed by the restaurant, and whether [294 Or.App. 557] he had been standing by his own car. Defendant did not respond. When defendant took steps as if to leave, Crino told defendant that he was not free to go until the investigation of "what's going on here" was complete. Defendant became agitated and responded in an angry tone, "I don't have to talk to you," and "I'm not answering any of your questions."

         Crino recognized signs that defendant was intoxicated, including a smell of alcohol, a flushed face, and bloodshot and watery eyes. Because of that, and because Mendez was a new officer, Crino called for backup. Two officers arrived and stood nearby. Crino told defendant that he was going to call someone from the restaurant to see if defendant had permission to be on the premises. Crino also told defendant that he would be arrested if he did not cooperate by providing his name and date of birth. Defendant appeared to become angrier and balled his fists and took a "bladed stance," shifting his weight back and forth, as if he intended to lunge or flee. Through clenched teeth, defendant stated, in a slow, angry tone, "I am not going to be arrested."

         At that point, Crino told defendant to turn around to face the building and put his hands behind his back so that he could be handcuffed for officer safety. When defendant refused, Crino made the request a second time, telling defendant that, based on defendant's behavior, he believed defendant was going to fight and that he was going to place him in handcuffs for defendant's and his own safety. Defendant replied "no" and refused to turn around. Crino then told defendant that he was under arrest "for interfering." Defendant resisted as the officers tried to place his arms ...


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