State v. Bledsoe

311 Or.App. 183

487 P.3d 862

STATE of Oregon, Plaintiff-Respondent,

v.Tiesha L. BLEDSOE, Defendant-Appellant.

A168021

Court of Appeals of Oregon.

Argued and submitted September 9, 2020.

May 5, 2021

Anne Fujita Munsey, 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.

Daniel Norris, 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 Kamins, Judge.

KAMINS, J.

Defendant refused to show proof of her TriMet train fare and kept walking despite a police officer ordering her to stop. She was convicted of interfering with a peace officer for refusing to obey the order and now assigns error to the trial court's denial of her motion for judgment of acquittal. On appeal, she contends that she was engaged in "passive resistance," which is not punishable under the statute, because she continued on her course without altering her conduct in response to the officer's order. Because we conclude that walking away is active, not passive, conduct, we affirm the trial court's denial of the motion for judgment of acquittal.

The relevant facts in this case are undisputed. Defendant was riding a TriMet train when she was approached by a TriMet rail supervisor and asked to show proof of fare. Defendant ignored the TriMet employee and, when the train arrived at the transit center, walked off the train away from the employee. The TriMet employee signaled uniformed police officers at the station, and one of the officers ordered defendant to stop and show fare. Defendant continued walking at a steady pace, despite the officer ordering defendant to stop and show proof of fare three more times. Eventually, two officers each took one of defendant's arms and stopped her forward motion.

Defendant was charged with interfering with a peace officer, ORS 162.247, for refusing to obey the officer's order.¹ She was tried by a jury, and, at the end of the state's case, she moved for a judgment of acquittal on the charge of interfering with a peace officer. As relevant here, defendant argued that, by continuing to walk away from the police officers, she was engaged in "passive resistance" which, under ORS 162.247(3)(b), exempts a person from the crime of interfering with a peace officer.

The trial court denied the motion, concluding that "[t]he charge is not resisting arrest, the charge is interfering with a lawful order, and here, there's sufficient evidence before this jury to determine that there was a lawful order given." The state asked the court to "make a specific finding as to this issue of passive versus active resistance," but the trial court refused "because resistance hasn't been charged." The jury convicted defendant of interfering with a peace officer, and she appeals that conviction, assigning error to the trial court's denial of her motion for judgment of acquittal.

In reviewing the denial of a motion for judgment of acquittal, we determine whether, viewing the evidence in the light most favorable to the state, any rational factfinder could have found the elements beyond a reasonable doubt. State v. Simmons , 279 Or. App. 756, 758-59, 379 P.3d 580, rev den , 360 Or. 697, 388 P.3d 710 (2016). When the dispute centers on the meaning of a statute, however, the issue is one of statutory construction, which we review for legal error. State v. Hirschman , 279 Or. App. 338, 344, 379 P.3d 616 (2016).

On appeal, defendant renews her argument that her behavior of continuously walking before, during, and after the officer ordered her to stop was simply passive resistance that is exempted from criminal liability under ORS 162.247(3)(b).² The state responds that the trial court was correct to deny defendant's motion because continuing to move away from a police officer after being ordered to stop is "active" and therefore cannot constitute passive resistance.³

The parties’ arguments present conflicting interpretations of the conduct that is subject to liability under ORS 162.247. ORS 162.247(1)(b) provides that a person commits the crime of interfering with a peace officer when the person, "knowing that another person is a peace officer," "refuses to obey a lawful order" given by that peace officer.⁴ ORS 162.247(3)(b) creates an exemption, providing that the statute "does not apply" to "[p]assive resistance." To resolve this dispute, we must determine the meaning of "passive resistance" for purposes of ORS 162.247(3)(b).

Our goal in construing the statute is to "discern the legislature's intent * * * looking primarily to the statute's text, context, and legislative history." State v. McNally , 361 Or. 314, 321, 392 P.3d 721 (2017) (citing State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) ). The Supreme Court has already had the opportunity to interpret the phrase "passive resistance," although for a different reason—to determine whether a defendant's conduct must involve an act or technique used during governmental protests to qualify as "passive resistance." Id . at 318, 321, 392 P.3d 721. Because "passive resistance" is undefined in the statute, the court looked to its "plain, natural, and ordinary meaning." Id . at 321, 392 P.3d 721. Finding the phrase to be a term of art, the court consulted both Webster's Third New Int'l Dictionary and Black's Law Dictionary , observing that the phrase has "the same meaning whether considered in a lay or a legal context." Id . at 322, 392 P.3d 721. Under either definition, "passive resistance is opposition to an exertion of a government or occupying power—a refusal to cooperate with that government or occupying power—without use of violence or active conduct." Id .

Because the legislative history discussed a desire to insulate protest or civil disobedience from liability, the court acknowledged that the legislature "had in mind protecting from arrest individuals who were engaged in a peaceful political protest or some other kind of nonviolent civil disobedience." Id. at 336, 392 P.3d 721. However, the court observed that this "legislative history does not suggest that the legislature intended the phrase ‘passive resistance’ to apply only in those situations." Id . (emphasis in original).

Accordingly, the court concluded that, for purposes of ORS 162.247(3)(b), passive resistance encompasses "noncooperation with a lawful order of a peace officer that does not involve active conduct." Id. at 339, 392 P.3d 721. Put another way, "the two central elements of ‘passive resistance,’ as used in ORS 162.247(3)(b), are the ‘passive,’ as opposed to active, nature of the defendant's conduct, and the notion of noncooperation with or refusal to obey a government agent's order." Id . at 323, 392 P.3d 721.

As there is no dispute that defendant was noncooperative with the officer's order, our inquiry is focused on the first element: "passive, as opposed to active" conduct. As passive is defined by what it is not—active—we turn to a dictionary to understand the term "active." In a lay dictionary, active is defined as "characterized by action rather than by contemplation or speculation; productive of action or movement; expressing action as distinct from mere existence or state." Webster's Third New Int'l Dictionary 22 (unabridged ed. 2002).⁵ The legal dictionary defines "active conduct" as "[b]ehavior that involves a person doing something by exerting will on the external world." Black's Law Dictionary 370 (11th ed. 2019).

These definitions, requiring physical movement or other impact on the external world, are consistent with the analysis in McNally . Although the court did not define the meaning of "active," it acknowledged that "a person who runs away when lawfully ordered by a peace officer to stop" is not passively resisting. McNally , 361 Or. at 335, 392 P.3d 721. On several occasions, the court equated "active" conduct with "physical" conduct. In acknowledging the state's concern that many cases involving interfering with a police officer involve passive resistance, the court noted that, "[p]erhaps the majority of refusals to obey a lawful order of a peace officer are in fact passive, but it also is not difficult to conceive of scenarios in which a person actively, physically, refuses to obey." Id .

This case presents one of these "scenarios." Id. There is no dispute that defendant was engaged in active, physical movement—the activity of walking. And there is no dispute that she refused to obey the order to stop.

An examination of the McNally concurrence confirms this understanding. 361 Or. at 344-45, 392 P.3d 721 (Kistler, J., concurring). Three justices concurred, parting ways with the majority over whether the exception was limited to activities associated with governmental protest. In so concluding, the concurrence observed that the term consisted of two components: "passive," which describes "the type of resistance," and "resistance," which implies "a requirement that a person refuse to comply with an officer's order for some reason, not for any reason or no reason at all." Id . at 341, 392 P.3d 721. Because the majority's focus was on "the nature of the resistance (passive as opposed to active) as the sole defining element," the concurrence disagreed with its construction. Id. at 344-45, 392 P.3d 721.

Of note, the concurrence worried that if any instance of a person "passively declin[ing] to comply" with an officer amounts to passive resistance, then "little is left" of the prohibition on interfering with a peace officer:

"It may be, as the majority notes, that a defendant can actively but peaceably refuse to comply with a lawful order. And it may follow that, as a result, the majority's definition of ‘passive resistance’ does not leave the prohibition in ORS 162.247(1)(b) completely devoid of content. However, the fact that

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