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State v. Anderson

Court of Appeals of Oregon

November 15, 2018

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

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

         On appellant's petition for reconsideration fled September 19, 2018. Opinion fled September 6, 2018. 293 Or.App. 697, ___ P.3d ___.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, for petition.

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

         Case Summary:

         Defendant petitions for reconsideration of the decision in State v. Anderson, 293 Or.App. 697, P.3d (2018), in which defendant appealed his conviction for resisting arrest, ORS 162.315, arguing, among other things, that the trial court erred in denying his motion for a judgment of acquittal because there was insufficient evidence to prove that defendant intended to cause a "substantial risk of physical injury," ORS 162.315(2)(c). The Court of Appeals held that defendant had failed to preserve that argument. In his petition for reconsideration, defendant argues that the decision did not accurately characterize his arguments below and that he in fact had preserved his argument on appeal.

         Held:

         The original opinion by the Court of Appeals was incorrect to the extent that it mischaracterized defendant's argument to the trial court. However, because defendant nonetheless made a different argument to the trial court than he made on appeal, the Court of Appeals adhered to its original conclusion that defendant's argument on appeal was unpreserved.

         Reconsideration allowed; former opinion modified and adhered to as modified.

         [294 Or.App. 826] GARRETT, J.

         Defendant has petitioned for reconsideration of our decision in State v. Anderson, 293 Or.App. 697, ___ P.3d ___ (2018). Defendant appealed his conviction for resisting arrest, ORS 162.315, arguing, among other things, that the trial court erred in denying his motion for a judgment of acquittal (MJOA) because there was insufficient evidence to prove that defendant intended to cause a "substantial risk of physical injury," ORS 162.315(2)(c). We held that defendant had failed to preserve that argument. In his petition, defendant argues that our preservation analysis did not accurately characterize the arguments that defendant made below. Upon reconsideration, as explained below, we adhere to our conclusion that defendant failed to preserve his argument on appeal, albeit for reasons different than we articulated in our original opinion. We accordingly allow defendant's petition for reconsideration, modify our former opinion, and adhere to it as modified.

         As we set out in Anderson, 293 Or.App. at 699-700, defendant was charged with resisting arrest after an altercation with police officers who were trying to arrest him. During the altercation, defendant refused to put his arms behind his back, "tensed up very hard," and tried to "push his way through" three officers. Officers "wrestled" and "stumbled" with defendant while trying to handcuff him, eventually taking him to the ground. Defendant relented only after officers threatened to use a Taser.

         At trial, defendant moved for a judgment of acquittal. During argument, defense counsel initially stated, "it's the defense position that no reasonable fact finder could find beyond a reasonable doubt based on the evidence presented by the State that my client is guilty of any of these * * * charges." The trial court then clarified that, "[w]hat you're making now is an argument that no reasonable fact finder, in the light most favorable to the State, could find beyond a reasonable doubt in favor of the State on all of the elements of all of the charges." As to the resisting arrest charge, counsel argued:

"And, Judge, now we're at the statute looking at-and you as the fact finder get to decide this, whether my client's [294 Or.App. 827] actions intentionally-(inaudible) charged here, intentionally created a ...

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