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State v. Scheirman

Court of Appeals of Oregon

December 5, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN EZRA SCHEIRMAN, Defendant-Appellant.

          Argued and Submitted June 7, 2018

          Coos County Circuit Court 16CR35636 Richard L. Barron, Judge.

          John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and James, Judge, and Schuman, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for interfering with a peace officer, ORS 162.247(1)(a). On appeal, defendant assigns error to the trial court's denial of his motion for judgment of acquittal. Defendant argues that the state did not present sufficient evidence that defendant intentionally prevented, or attempted to prevent, officers from performing their duties. Held: "Prevent," as used in ORS 162.247(1)(a), means "a physical action taken that keeps something from happening." The evidence was insufficient to establish that defendant acted in a manner that prevented the officers from performing their duties. However, the evidence was sufficient with regards to an attempt to prevent under the statute. A reasonable trier of fact could interpret defendant's continuation of his belligerent behavior, after being told by the officers that the behavior was distracting them from performing their duties, as defendant intentionally continuing to engage in that behavior as a substantial step towards preventing the officers from performing their lawful duties.

         Affirmed.

         [295 Or.App. 239] JAMES, J.

         Defendant appeals a judgment of conviction for interfering with a peace officer, ORS 162.247(1)(a), assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant argues that the state did not present sufficient evidence that defendant intentionally prevented, or attempted to prevent, officers from performing their duties.[1] The state argues in response that the evidence was sufficient to support findings that defendant prevented or attempted to prevent officers from performing their duties. We affirm.

         We review a trial court's denial of a motion for a judgment of acquittal viewing the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the state to determine whether a rational trier of fact could find each element of the offense beyond a reasonable doubt. State v. Rader, 348 Or. 81, 91, 228 P.3d 552 (2010); State v. Pitts, 259 Or.App. 372, 373, 314 P.3d 324 (2013), rev den, 354 Or. 840 (2014). Consistent with that standard, the relevant facts are as follows.

         Late in the evening in February 2016, Officers Rule, Gaither, and Kinney responded to a call about a disorderly person. Officer Rule arrived on scene first and located that person, McGarrity, in a yard. When Officer Gaither arrived, he assisted Rule in removing McGarrity from the yard. McGarrity was belligerent and combative, and officers believed he was under the influence of some unknown intoxicant. Kinney arrived shortly after McGarrity was removed from the yard. After McGarrity was removed from the yard, defendant appeared and walked out of the same yard. Gaither approached defendant and asked him to remain at a distance and stay at that distance. After walking over to the officers and seeing his grandchild's father, McGarrity, in handcuffs, defendant returned to his house and came back to the scene with a cell phone and began to record video of McGarrity's arrest. Defendant was yelling and shouting at the officers while he recorded, and also appeared to be under the influence of an unknown intoxicant.

         [295 Or.App. 240] At least one officer, Rule, stopped what he was doing during McGarrity's arrest to walk over to defendant because defendant remained belligerent and was moving around while recording. Rule informed defendant that it was fine to record the officers, but that he needed to remain where he currently was in relation to the arrest and stop making noise, because it was drawing officer attention to him while they were arresting McGarrity. Gaither also reminded defendant to stay at a distance and inquired whether defendant had a weapon on him. Defendant disclosed that he had a pocketknife. Gaither removed the pocketknife from defendant's pocket and threw it some distance away from defendant and the scene of the arrest. After that interaction, defendant did not remain where he was; he moved in a semi-circle around the officers. During defendant's circling movements, he varied his proximity to the arrest, approaching to within approximately 10 feet to 40 feet away from McGarrity. Defendant testified at trial that he was moving around to get a better angle for the video because the headlights from the officers' vehicles made it difficult to get a good image. During his circling and recording, defendant continued to yell and swear at the officers and act generally belligerent. He was reminded that he needed to stay away from the officers, and at least one officer told him that he was interfering. Defendant did not change his behavior. Eventually, Rule and Gaither arrested defendant. He was charged with interfering with a peace officer, ORS 162.247 (1)(a). That statute provides, in relevant part:

"(1) A person commits the crime of interfering with a peace officer *** if the person, knowing that another person ...

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