Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Moravek

Court of Appeals of Oregon

May 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ANTOINETTE SULUETI-ESTER MORAVEK, Defendant-Appellant.

          Argued and submitted December 19, 2018

          Washington County Circuit Court 16CR82717, 16CR78582; Janelle F. Wipper, Judge.

          Erica Herb, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

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

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals from a judgment of conviction for, among other crimes, interfering with a peace officer. Defendant assigns error to the trial court's failure to sua sponte issue a judgment of acquittal for the crime of interfering with a peace officer. Defendant also assigns error to the trial court's failure to sua sponte instruct the jury on "passive resistance." Defendant argues that her conduct could only have been understood to be "passive resistance," and thus defendant was entitled to a judgment of acquittal, or in the alternative a jury instruction on passive resistance. Defendant concedes that both assignments of error are unpreserved and requests plain-error review. Held: The trial court did not plainly err in failing to sua sponte acquit defendant. It was not obvious that the evidence at trial was legally insufficient to convict defendant of interfering with a peace officer because her conduct could only have been understood as passive resistance. Further, the trial court did not plainly err in failing to instruct the jury on passive resistance because passive resistance is neither an element of [297 Or.App. 764] interfering with a peace officer nor a defense other than an affirmative defense that defendant raised at trial. Thus it was not obvious for the purposes of plain-error review that the trial court had a burden to sua sponte instruct the jury on passive resistance.

         [297 Or.App. 765] SHORR, J.

         Defendant appeals a judgment of conviction for aggravated harassment (Count 1), ORS 166.070; resisting arrest (Count 2), ORS 162.315; and interfering with a peace officer (Count 3), ORS 162.247, and another judgment of conviction revoking her probation. Defendant assigns error to the trial court's failure to sua sponte issue a judgment of acquittal on Count 3. Defendant alternatively assigns error to the court's failure to sua sponte instruct the jury on "passive resistance," as that term has been construed in State v. McNally, 361 Or. 314, 392 P.3d 721 (2017). Defendant acknowledges that both assignments of error were unpreserved and requests that we exercise our discretion to review for plain error. For the reasons that follow, we affirm the judgments of the trial court.

         Defendant was riding a TriMet MAX train when Officer Berry, a Beaverton officer assigned to the Transit Division, asked for proof of defendant's fare. Defendant did not have valid fare, and Berry asked defendant to get off at the next stop. Defendant became "kind of irate" and "pretty rude." When the train reached the next transit stop, defendant, Berry, and other officers got off the train, and Berry issued a 30-day TriMet exclusion to defendant. After Berry handed defendant the related paperwork, Berry noticed that defendant was still standing close to her on the platform. Berry told defendant that she needed to either purchase a valid ticket or leave the platform. Defendant turned to walk away, but then defendant stopped, turned back toward Berry, and spat on Berry's shoe. Berry then told defendant that she was under arrest. Berry attempted to put defendant in handcuffs, but defendant "whipped" her arm away. Two of the other officers came to Berry's assistance. Defendant continued to struggle and "scream" at the officers, who eventually got defendant on the ground and in handcuffs.

         Once defendant was in handcuffs, two officers walked her off the MAX platform, toward a parking area. With an officer on each side of her, defendant dropped her weight so that she "threw herself or "fell" to the ground. The officers ordered defendant to stand up, but defendant refused, saying in effect that "it was now [the officers'] job [297 Or.App. 766] and that [they] were strong enough and [they] should be capable of carrying her into a police car." Two officers physically lifted defendant from underneath her armpits and another officer carried defendant's legs. The officers carried defendant to the patrol car and "somewhat" put her inside. One of the officers went to the other side of the car and pulled on defendant's arms while another officer pushed on her thighs, and together they were able to "shove" defendant mostly into the back of the car, with only her legs sticking out one of the open doors. The officers ordered defendant to bend her knees and put her feet inside the car, but defendant refused and instead "stiffened her legs out" so that the door would not shut. Berry forced defendant's knees to bend by pushing underneath her kneecaps. One officer testified that the encounter with defendant "was just a continual fight since-since we were on the platform with her."

         Among other charges stemming from the incident, defendant was charged with interfering with a peace officer (IPO), ORS 162.247, for "unlawfully and knowingly refus[ing] to obey a lawful order of [Officer] Berry, a person known by the defendant to be a peace officer." ORS 162.247 provides, in pertinent part, that a person commits the crime of IPO if the person,

"knowing that another person is a peace officer or a parole and probation officer as defined in ORS 181A.355:
"(b) Refuses to obey a lawful order by the peace officer or parole and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.