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State v. Owens3/17/1999
Argued and submitted on September 23, 1998.
Affirmed.
Armstrong, J., Dissenting.
Defendant appeals from his conviction for resisting arrest, ORS 162.315. He assigns as error the denial of his motion for a judgment of acquittal and the failure to give his requested jury instruction. We affirm.
The jury could have found the following facts from the evidence. On June 9, 1996, Officer Rabey of the City of Portland Police Department responded to a call from the area of the Saturday Market in downtown Portland. When Rabey arrived, a security guard told her that defendant was trespassing on the New Market Theater property. Rabey approached defendant and asked for his name and address, so that she could issue a citation. Defendant refused to cooperate with Rabey and did not give her the information that she had requested. She told him that if he reentered the property, she would arrest him. Defendant said, "fine, go ahead and arrest me," and reentered the property. Rabey told defendant to turn around and to place his hands on his head. Defendant refused, and when Rabey attempted to grab his arm, he wrenched it away. Defendant then swung his camera bag at Rabey and walked away. Because Rabey did not want to attempt to arrest defendant again alone, she called for backup.
Two mounted police officers, Pool and Marshman, responded to Rabey's call and stopped defendant in the food court area in the Market. Rabey went to that area and saw defendant standing between the officers' two horses. Rabey came up behind defendant and told the mounted officers that he was the person who was to be arrested. She grabbed defendant's arm, but he immediately tore away and began yelling. When Rabey attempted to handcuff defendant's right wrist, he lifted his left arm as if to strike her. Pool and Marshman also grabbed defendant's arms, but he continued to struggle. With Pool and Marshman holding defendant's arms, Rabey handcuffed defendant and led him out of the area. However, he remained combative, pulling away, fighting, and crying out for help.
Defendant was charged with one count of resisting arrest, which alleged that he,
" n or about June 9, 1996, in the County of Multnomah, State of Oregon, did unlawfully and intentionally resist Officers Michael Marshman, David Pool, and Stephanie Rabey, persons known by the said defendant to be peace officers, in making an arrest, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]"
After the close of the evidence at trial, defendant moved for a judgment of acquittal on the ground that the state had not offered evidence that he had used or threatened to use violence, physical force or any other means that created a substantial risk of physical injury . In light of the above evidence, the trial court correctly denied defendant's motion. Defendant's resistance on both occasions created a substantial risk of physical injury to the officers.
Before the case was submitted to the jury, defendant requested the following jury instruction:
"In order to find the defendant guilty of resisting arrest, all six jurors must find the defendant guilty of resisting the same officer within the same incident."
He contended to the trial court,
"I still believe that it's the court's intent, that all jurors agree on one victim, whether or not the victim is misidentified in the pleading. In other words, three jurors could agree on John Smith as the victim, three jurors could agree on John Doe as the victim--and neither one of them would be unanimous on a victim, a crime."
The trial co
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