Multnomah County Circuit Court 15CR46981 Jerry B. Hodson,
appellant's petition for reconsideration fled September
19, 2018. Opinion fled September 6, 2018. 293 Or.App. 697,
___ P.3d ___.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Stacy M. Du Clos, Deputy Public Defender, Office of Public
Defense Services, for petition.
Ortega, Presiding Judge, and Garrett, Judge, and Powers,
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.
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
allowed; former opinion modified and adhered to as modified.
Or.App. 826] GARRETT, J.
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.
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.
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