Submitted on remand December 12, 2017.
remand from the Oregon Supreme Court, State v. Kountz, 362
Or. 175, 406 P.3d 612 (2017), Multnomah County Circuit Court
120951044 Stephen K. Bushong, Judge.
Gartlan, Chief Defender, Elizabeth Dailey, Deputy Public
Defender, and Rond Chananudech, Deputy Public Defender, Offce
of Public Defense Services, fled the briefs for appellant.
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Peenesh H. Shah, Assistant Attorney General,
fled the brief for respondent.
Armstrong, Presiding Judge, and Egan, Chief Judge, and
On remand from the Supreme Court for reconsideration in light
of the court's opinion in State v. Garcia, 361
Or. 672, 399 P.3d 444 (2017), the Court of Appeals concluded
that its earlier opinion in this case, 279 Or.App. 262, 379
P.3d 644 (2016), in which the court held that a person cannot
be charged with interfering with a police officer based on
conduct that also constitutes resisting arrest, was incorrect
under Garcia, and that the trial court therefore did
not err in denying defendant's motion for judgment of
acquittal on the charge of interfering with a police officer.
Or. 219] EGAN, C. J.
case is on remand from the Supreme Court for reconsideration
in light of the court's opinion in State v.
Garcia, 361 Or. 672, 399 P.3d 444 (2017). In that case,
the defendant was charged with resisting arrest, ORS 162.315,
and two counts of interfering with a peace officer, ORS
162.247, based on the same conduct of preventing police from
arresting her boyfriend. ORS l62.247(3)(a), which defines the
offense of interfering with a peace officer, provides that it
"does not apply in situations in which the person is
engaging in *** [a]ctivity that would constitute resisting
arrest under ORS 162.315." The defendant in
Garcia moved for a judgment of acquittal on the
interfering counts, contending that she could not be charged
with an interfering offense based on the same conduct giving
rise to the resisting arrest charge. 361 Or at 676. The state
acknowledged that a person could not be convicted of
both offenses, but contended that both offenses could be
submitted to the jury. The trial court denied the
defendant's motion, submitted both offenses to the jury,
and instructed the jury that, if it should find that the
defendant was guilty of resisting arrest, it must return a
verdict of not guilty as to the interfering counts relating
to the same conduct. The defendant was ultimately convicted
on one interfering charge but acquitted of the second
interfering charge and the resisting charge. Id. at
defendant's appeal in State v. Garcia, 278
Or.App. 639, 377 P.3d 596 (2016), we held that a person
cannot be charged with interfering with a peace officer for
the same conduct that also constitutes resisting arrest, and
we reversed the defendant's conviction for interfering.
The Supreme Court reversed this court, holding that, as
alternative charges based on the same conduct, a person can
be charged with both resisting arrest and interfering with a
peace officer, and that both offenses can be submitted to the
jury. The court further said that, to avoid conflicting
convictions under ORS 162.247(3)(a), when both offenses are
submitted to the jury and the defendant disputes the charges,
the jury should be instructed to address the resisting charge
first, and to consider the interference charge only if the
jury does not find the defendant guilty of resisting arrest.
361 [300 Or. 220] Or at 687. The court reversed this court
and reinstated the judgment of conviction for interfering
with a peace officer. Id.
case, the procedural facts are slightly different. Based on
the theory that defendant had interfered with police by
resisting the arrest of her son, defendant was charged with
interfering with a peace officer. She was not, however,
charged with resisting based on that conduct.Defendant sought a
judgment of acquittal on the interfering charge under ORS
l62.247(3)(a), contending that the conduct on which the
interfering charge was based would constitute resisting
arrest, and the state therefore should not be allowed to go
forward. The trial court denied the motion, and defendant was
appeal, defendant challenged only her conviction for
interfering, and her first assignment assigned error to the
denial of her motion for judgment of acquittal based on ORS
l62.247(3)(a) and to the failure to instruct the jury that
she could not be found guilty of interfering based on conduct
that would constitute resisting. We issued our opinion before
the Supreme Court's opinion in Garcia. State v.
Kountz, 279 Or.App. 262, 379 P.3d 664 (2016). Citing our
opinion in Garcia, we agreed with defendant on her
first assignment that she could not be charged with
interfering based on conduct that could also constitute
resisting, and we reversed defendant's interfering
conviction. 279 Or.App. at 266. Because we reversed
defendant's conviction for that reason, we did not
address defendant's second assignment of error, in which
she contended that the trial court erred in failing to give
an instruction that a person cannot be convicted of
interfering based on conduct that also constitutes resisting.
Id. at 264.
light of the Supreme Court's opinion in Garcia,
we conclude that we were incorrect in this case in concluding
that the court erred in denying defendant's motion for
judgment of acquittal on the interfering charge.
Additionally, under Garcia, the trial court did not
err in [300 Or. 221] denying defendant's motion for an
instruction that defendant could not be convicted of
interfering for conduct that also constituted resisting.
Having reconsidered the case in light of the Supreme
Court's opinion in Garcia, we now reject ...