State v. Dickey

315 Or.App. 501

500 P.3d 688

STATE of Oregon, Plaintiff-Respondent,

v.Robert Matthew DICKEY, Defendant-Appellant.

A168055

Court of Appeals of Oregon.

Submitted May 26, 2020.

November 3, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DeHOOG, J.

A jury found defendant guilty of giving false information to a peace officer as defined by ORS 162.385(1)(a). That provision states, in relevant part:

"A person commits the crime of giving false information to a peace officer in connection with a citation * * * if the person knowingly uses or gives a false or fictitious name, address, or date of birth to any peace officer when:

"(a) The peace officer is issuing or serving the person a citation under authority of * * * ORS chapter 153[.]"

Defendant appeals, arguing that, to obtain a conviction under that provision of ORS 162.385, the state must prove, as an element of the offense, that some provision of ORS chapter 153 gave the officer to whom he provided false information actual authority to cite him. On appeal, as at trial, defendant argues that no provision of that chapter authorized that officer to issue a citation under the circumstances of this case. He therefore contends that he was entitled to a judgment of acquittal on that charge. For the reasons that follow, we agree and reverse.

In reviewing the denial of a motion for judgment of acquittal (MJOA), we view "the evidence in the light most favorable to the state" to determine whether "a rational trier of fact, making reasonable inferences, could find the essential elements of the crime beyond a reasonable doubt." State v. Hedgpeth , 365 Or. 724, 730, 452 P.3d 948 (2019) (internal quotation marks omitted); State v. Peterson , 309 Or.App. 31, 34, 482 P.3d 68 (2021). In this case, the relevant facts are few and, for purposes of appeal, undisputed. Defendant was a passenger on a MAX train when a TriMet fare inspector, Coryell, asked him for proof that he had paid the fare, which defendant could not provide. Defendant also did not present proof of his identity at that time. Rather, when Coryell asked defendant for his name, he began to provide one name before "correct[ing] himself" and giving another. That caused Coryell to suspect that defendant had given him a false name, and he contacted Portland Police Officer Helfrich to assist him with establishing defendant's true identity. From another location, Helfrich searched for the name that defendant had given Coryell, but he was unable to find a match in the police database. Helfrich then met up with Coryell and defendant, who got off the MAX train at the next station, where Helfrich impressed upon defendant the importance of giving accurate information so that a citation could be issued. Helfrich then asked defendant his name.

As with Coryell, defendant gave Helfrich one name before "correct[ing]" himself and giving another, for which again Helfrich could find no record. Ultimately, Helfrich was able to determine defendant's true name using one of a substantial number of identification cards that defendant had in his possession. Using that name, Coryell issued defendant a citation for the TriMet fare violation, as authorized by ORS 153.042.¹ Based upon that sequence of events, the state subsequently charged defendant with giving false information to a peace officer, ORS 162.385(1)(a).

At trial, the state conceded that, as a fare inspector, Coryell was not a "peace officer" for purposes of the false-information statute, and the trial court instructed the jury accordingly. Helfrich testified, however, that he too had authority to issue violation citations under ORS 153.042. In arguing for a judgment of acquittal, defendant did not dispute that, as a general matter, Helfrich was an "enforcement officer" within the meaning of that provision. But here, defendant argued, he was entitled to an acquittal because, despite Helfrich's authority to issue citations for violations taking place in his presence, Helfrich did not have authority to issue the citation in this case. That is, because defendant had committed the fare violation in Coryell's presence, not Helfrich's, ORS 153.042 did not authorize Helfrich to cite defendant for that offense. It followed, defendant reasoned, that, at the time he gave Helfrich a false name, Helfrich was not "issuing or serving [defendant] a citation under authority of * * * ORS chapter 153[.]"

The trial court ultimately denied defendant's MJOA.² The court reasoned that Helfrich and Coryell "were working essentially in tandem to issue the same citation[.]" On appeal, the state endorses the trial court's reasoning. Defendant, on the other hand, contends that the trial court's reasoning is inconsistent with the plain text of ORS 162.385 and therefore cannot be what the legislature intended when it enacted that provision. We agree with defendant's reading of ORS 162.385.

"When legal disputes are encompassed in the arguments for and against a motion for judgment of acquittal, we resolve them as we would any other legal question[.]" State v. Turnidge , 359 Or. 364, 455, 374 P.3d 853 (2016), cert. den. , ––– US ––––, 137 S.Ct. 665, 196 L.Ed.2d 554 (2017). And because the legal issue at the core of defendant's MJOA requires us to construe ORS 162.385(1) —and, to a lesser degree, ORS 153.042 —we follow the familiar Gaines methodology of statutory construction. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (evaluating statutory text in context, considering any helpful legislative history, and turning to canons of construction when necessary). Applying those principles, we conclude that the trial court incorrectly construed the applicable statutes and, accordingly, erred in denying defendant's MJOA.

As a starting point for our analysis, we note that the state does not dispute that the phrase "under authority of * * * ORS chapter 153" establishes an element that it must make out as part of its case. Nor does the state dispute that, to satisfy that element, it must establish that someone had actual authority under chapter 153 to cite defendant for a violation. Finally, the state concedes that the only potential source of actual authority for the citation at issue in defendant's case is ORS 153.042(1), which provides, in relevant part:

"[A]n enforcement officer may issue a violation citation only if the conduct alleged to constitute a violation takes place in the presence of the enforcement officer and the enforcement officer has reasonable grounds to believe that the conduct constitutes a violation."

(Emphases added.) In so conceding, the state implicitly recognizes that an officer who does not observe conduct constituting a violation typically may not issue a citation under that provision.³ And here, the state acknowledges, Helfrich did not personally observe defendant engaging in the conduct that allegedly constituted a violation.

The state nonetheless contends that the trial court did not err in denying defendant's motion for judgment of acquittal. At trial, the state argued that Helfrich was himself issuing the citation at issue and that he was doing so "under authority of * * * ORS chapter 153." On appeal, however, the state has shifted its argument slightly. Taking its cue from the trial court's ruling, the state now argues that Coryell, the TriMet fare inspector, had actual authority to cite defendant for a fare violation and that Helfrich was working "in tandem" with Coryell to issue the citation under authority that Coryell possessed, and not under Helfrich's own authority. The state therefore reasons that the evidence was sufficient to convict defendant, because a rational jury could find that defendant had given false information to a peace officer—Helfrich—who had requested it "for the purpose of issuing and serving a citation under the statutory authority possessed by the transit officer," Coryell. That is, the state no longer contends that Helfrich had authority under ORS 153.042 to cite defendant. Rather, the state argues that, because Coryell had that authority, and the jury could find that Helfrich was working with him, the evidence was sufficient to satisfy the "under authority" element of ORS 162.385(1)(a).

Before turning to the state's working "in tandem" theory, we first consider whether, as the state effectively concedes, it was required to prove, as an element of the charged offense, that Helfrich issued or served a citation "under authority of * * * ORS chapter 153[.]" See ORS 162.385(1)(a). If the legal authority for the citation (or for Helfrich's issuance of it) is not an element that the state was required to prove as part of its case, then it is immaterial whether Helfrich was issuing a citation "under authority of ORS chapter 153" within the meaning of ORS 162.385(1)(a).

We have not expressly decided that issue. In a different context, we considered whether there was probable cause to arrest a defendant for violating ORS 162.385(1) when he gave a false name to officers who, at the time, were looking for a different person. State v. Allen , 222 Or.App. 71, 191 P.3d 762, rev. den. , 345 Or. 503, 200 P.3d 147 (2008). We explained that,

"[t]o demonstrate that a defendant violated ORS 162.385, the state must show (1) that ‘the person knowingly uses or gives a false or fictitious name, address or date of birth to any peace officer’ and (2) that the officer asked for that information for the purpose of ‘issuing or serving the person a citation’ or ‘arresting the person on a warrant.’ "⁴

Id . at 77, 191 P.3d 762. Notably, in listing those elements of giving false information to a peace officer in Allen , we omitted any...