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State v. West

Court of Appeals of Oregon

June 12, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT LEE WEST, Defendant-Appellant.

          Argued and submitted March 18, 2019

          Multnomah County Circuit Court 15CR25032; Bronson D. James, Judge. (Judgment), Christopher J. Marshall, Judge. (Corrected Judgment)

          Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. Also on the briefs 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 Powers, Presiding Judge, and Armstrong, Presiding Judge, and Kistler, Senior Judge.

         Case Summary: Defendant was convicted of two counts of second-degree disorderly conduct for obstructing traffic and one count of interfering with a police officer for refusing to comply with an officer's order. On appeal, defendant argues that his disorderly conduct convictions should be reversed because the state failed to allege, and the jury failed to find that he "intentionally" obstructed traffic. Additionally, defendant argues that the trial court should have entered a judgment of acquittal on the charge of interfering with a police officer.

         Held:

         As to the two counts of second-degree disorderly conduct, the trial court did not err. Considering the text, context, and legislative history of the second-degree disorderly conduct statute, the state only needed to plead and prove one of the two enumerated mental states specified in ORS 166.025(1) ("with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.").

         [298 Or.App.126] As to the charge of interfering with a police officer, the Court of Appeals accepted the state's concession and reversed that conviction.

         [298 Or.App.127] KISTLER, S. J.

         Defendant was convicted of two counts of second-degree disorderly conduct for obstructing traffic and one count of interfering with a police officer for refusing to comply with an officer's order. On appeal, defendant argues that his disorderly conduct convictions should be reversed because the state failed to allege and the jury failed to find that he "intentionally" obstructed traffic. Additionally, defendant argues, and the state concedes, that the trial court should have entered a judgment of acquittal on the charge of interfering with a police officer. For the reasons explained below, we affirm defendant's convictions for disorderly conduct and reverse his conviction for interfering with a police officer.

         On March 10, 2015, defendant was involved in a demonstration in downtown Portland. Defendant, along with other protestors, stood in a public street blocking traffic and preventing at least one car from going forward. Sergeant Price told the group, "Get out of the street or you're going to be arrested." Another car pulled up and was blocked by the protestors. Defendant walked directly in front of the second car and was, at that point, the only person blocking its path. Price "asked [defendant] to move *** out of the way." Defendant did not comply with Price's order, and Price "eventually escorted [defendant away] by * * * grabbing his arm and moving him out of the way."

         Approximately one month later, on April 15, defendant took part in a second demonstration that blocked traffic on the Hawthorne Bridge in Portland. That demonstration stopped several cars from driving on the bridge. Defendant walked "right in the middle of traffic, right in the middle of two lanes of road," blocking five or ten cars.

         Defendant was charged with two counts of disorderly conduct for obstructing traffic during those two demonstrations and one count of interfering with a police officer for refusing to obey the officer's order to "move out of the way" of the vehicle during the first demonstration. Regarding the two disorderly conduct charges, [1] the information initially [298 Or.App.128] alleged that "[d]efendant *** did unlawfully and recklessly create a risk of public inconvenience, annoyance and alarm by obstructing vehicular and pedestrian traffic on a public way." Before trial, defendant filed a demurrer challenging the information. He argued that the disorderly conduct charges were unconstitutionally vague, not definite and certain, and failed to state an offense because they did not allege that he had "intentionally" obstructed traffic.[2]

         The state responded that, at most, it only had to allege that defendant "knowingly obstructed] traffic and in doing so recklessly create[d] a risk of public inconvenience, annoyance or alarm." The state disagreed with defendant that it had to allege that he had intentionally obstructed traffic. The trial court ruled in the state's favor. It reasoned that it would

"allow the case to proceed on a reckless mental state. I find that-I guess it's not a finding of fact-it's a holding of law- that the reckless mental state with respect to Disorderly Conduct is not unconstitutionally vague, and that is based on [State v.] Marker, [21 Or.App. 671');">21 Or.App. 671, 536 P.2d 740 (1975), ] which is still good law and the combination of the reckless mental state in creating the risk combined with the specified conduct that is engaged in."

         At trial, in response to defendant's arguments, the state asked the trial court to instruct the jury that the state had to prove that defendant knowingly obstructed traffic. Defendant continued to argue, however, that more was required. He argued that the jury should be instructed that the state had to prove that he "intentionally" obstructed traffic. The trial court disagreed and, consistently with its ruling on defendant's demurrer, instructed the jury as follows on the first disorderly conduct charge:

"In this case, to establish the crime of Disorderly Conduct in the Second Degree, the State must prove [298 Or.App.129] beyond a reasonable doubt the following elements: One, the act occurred on or about March 10th, 2015; two [defendant] intended to cause or recklessly created a risk of causing public inconvenience, annoyance or alarm; by, three, knowingly obstructing vehicular or pedestrian traffic on a public way."

         Except for the date on which the charged act allegedly occurred, the trial court gave an identical instruction on the disorderly conduct charge arising from the April 15, 2015, demonstration. The jury convicted defendant of both disorderly ...


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