State v. McClure

355 Or. 704

335 P.3d 1260

STATE of Oregon, Respondent on Review

v.Curtis Dwayne McCLURE, Petitioner on Review.

CC 090850307

CA A143705

SC S061434.

Supreme Court of Oregon, En Banc.

Argued and Submitted March 11, 2014.

July 10, 2014.

Jedediah Peterson, Deputy Public Defender, Salem, argued the case and filed the brief for the petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.

Jona Maukonen, Assistant Attorney General, Salem, argued the case and filed the brief for the respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Opinion

WALTERS, J.

In this criminal case, defendant was convicted of resisting arrest for violating the terms of his parole. We conclude, as did the trial court and the Court of Appeals, that an arrest for a parole violation qualifies as an arrest for purposes of ORS 162.315 —the resisting arrest statute—and affirm.

Because the jury found defendant guilty, we present the facts in the light most favorable to the state. State v. Lewis, 352 Or. 626, 628, 290 P.3d 288 (2012). In 2009, defendant was walking in Portland's Old Town when two officers stopped him, engaged him in conversation, and asked for his name. Defendant complied, asked if he was free to leave, and, after receiving a positive response, did so. One officer followed defendant at a distance while the other officer conducted a warrant check, which revealed an outstanding warrant for defendant's arrest for a parole violation.¹ The officers then intercepted defendant, informed him that there was a warrant for his arrest, and began to restrain defendant. Defendant tightened his arms, grasped at one officer's fingers, and, yelling and screaming, held onto a utility pole. The officers attempted a “hair hold take down,” and one officer struck defendant in the torso in an attempt to force defendant to the ground. The officers also repeatedly instructed defendant to “stop resisting.” Notwithstanding the officers' actions and instructions, it was only with the assistance of private security officers that the officers were able to force defendant to the ground and handcuff him.

Defendant was charged with resisting arrest under ORS 162.315, which provides, in part:

“(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.

“(2) As used in this section:

“(a) ‘Arrest’ has the meaning given that term in ORS 133.005 and includes, but is not limited to, the booking process.

“ * * * * *

“(2) It is no defense to a prosecution under this section that the peace officer or parole and probation officer lacked legal authority to make the arrest or book the person, provided the officer was acting under color of official authority.”

(Emphases added.) ORS 133.005 defines “arrest” as follows:

“As used in ORS 133.005 * * *, unless the context requires otherwise:

“(1) ‘Arrest’ means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. A ‘stop’ as authorized under ORS 131.605 to 131.625 is not an arrest.”

(Emphasis added.) Finally, an “offense” is defined in ORS 161.505 as

“conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. An offense is either a crime, as described in ORS 161.515, or a violation, as described in ORS 153.008.”

At trial, defendant filed a motion for acquittal relying on the italicized phrases in those statutes. Defendant cited a Court of Appeals case, State v. Pierce, 226 Or.App. 224, 229, 203 P.3d 290, rev. den., 346 Or. 213, 208 P.3d 963 (2009), for the proposition that “arrest,” as used in ORS 162.315 and defined in ORS 133.005, requires that a person be restrained or placed in custody “for the purpose of charging that person with an offense.” Defendant argued that, because a parole violation is not an “offense” as defined in ORS 161.505 and because he was restrained for a parole violation, the officers had not placed him under restraint “for the purpose of charging him with an offense” and therefore had not “arrested” him within the meaning of ORS 162.315. The trial court denied defendant's motion, concluding that a parole violation was a “part of the prosecution of the [underlying] offense.”

The jury convicted defendant and the Court of Appeals affirmed his conviction. State v. McClure, 256 Or.App. 200, 300 P.3d 210 (2013). The court concluded that, although an arrest for a parole violation is not an arrest “for the purpose of charging [defendant] with an offense,” the legislature nonetheless intended that such an arrest qualify as an “arrest” for the purposes of ORS 162.315. Id. at 204, 300 P.3d 210. Judge Sercombe dissented. He viewed the majority's interpretation of ORS 162.315 as contrary to the text of the statute and would have held that ORS 162.315 does not apply unless the individual is being arrested for an “offense.” Id. at 211, 221, 300 P.3d 210 (Sercombe, J., dissenting).

In this court, defendant's statutory argument is again straightforward. As noted, ORS 162.315(1) provides that a person resists “arrest” if that person “intentionally resists * * * a peace officer or parole and probation officer in making an arrest.” ORS 162.315(2)(a) defines “arrest” as having “the meaning given that term in ORS 133.005.” ORS 133.005, in turn, provides that the term “arrest” means “to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense.” As defendant argues and the state acknowledges, a probation violation is neither a crime nor a violation, and thus is not an offense. Therefore, defendant argues, because he was restrained for the purpose of revoking his probation and not “for the purpose of charging [him] with an offense,” he did not resist “arrest” as that term is defined in ORS 133.005(1) and could not be convicted under ORS 162.315.

The state sees two points of vulnerability in defendant's analysis. First, the state takes issue with defendant's construction of ORS 133.005(1). As noted, that statute defines “arrest” using two disjunctive clauses: (1) “to place a person under actual or constructive restraint,” or (2) “to take a person into custody.” Those clauses are followed by a qualifying phrase: “for the purpose of charging that person with an offense.” The state argues that the qualifying phrase modifies only the second clause and therefore that an “arrest” may occur under ORS 133.005(1) when a person is actually or constructively restrained, even if the purpose of the restraint is not to charge the person with an offense. Alternatively, the state contends that ORS 133.005 includes the introductory phrase “unless context requires otherwise.” Therefore, the state argues, the context of the resisting arrest statute requires that ORS 133.005(1) be interpreted to encompass arrest for a probation violation.

We begin our analysis with the text of ORS 133.005(1) and the state's argument that, based on the “doctrine of the last antecedent,” the qualifying phrase “for the purpose of charging that person with an offense” modifies only the immediately preceding clause “to take a person into custody.” That doctrine instructs that, “where no contrary intention appears,” referential and qualifying words and phrases refer solely to “ ‘the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.’ ” State v. Webb, 324 Or. 380, 386, 927 P.2d 79 (1996) (quoting Norman J. Singer, 2A Sutherland Statutory Construction § 47.33 at 270 (5th ed 1992)). In this case, because other evidence of legislative intent is available, we turn to the enactment history of the pertinent statutes.

The legislature enacted the resisting arrest statute, ORS 162.315, in 1971. Or. Laws 1971, ch. 743, § 206. At that time, the resisting arrest statute did not include a definition of “arrest.” However, two other statutes did define that term—former ORS 133.210 and former ORS 133.250. In 1973, the legislature repealed those two statutes and adopted a new definition of “arrest” codified at ORS 133.005(1). Or. Laws 1973, ch. 836, § 62. Then, in 1997, the legislature amended the resisting arrest statute to define the term “arrest” as used in that statute by reference to the definition of “arrest” in ORS 133.005(1). Or. Laws 1997, ch. 749, § 3. It is that definition that is the focus of our inquiry, and we therefore think it helpful to consider the text and transformation of its predecessors in greater detail.

The two predecessors to ORS 133.005 —former ORS 133.210 and former ORS 133.250—both date to the Deady Code. Former ORS 133.210 defined “arrest” as “the taking of a person into custody, that he may be held to answer for a crime.” General Laws of Oregon, Crim. Code, ch. XXXVI, § 360, p. 504 (Deady 1845–1864 ); OCLA § 26–1522; ORS 133.210 (1969). Former ORS 133.250 provided that “[a]n arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.” General Laws of Oregon, Crim. Code, ch. XXXVI, § 364, p. 504; OCLA § 26–1526; ORS 133.250 (1969). Thus, former ORS 133.250 did not require that the officer's restraint or the arrestee's submission to custody be for any particular purpose. Only former ORS 133.210, which defined arrest as “the taking of a person into custody,” included the qualifying phrase “that he may be held to answer for a crime.”

In 1973, the legislature repealed former ORS 133.210 and former ORS 133.250 and replaced them with one statute—ORS 133.005. The Commentary to the Criminal Procedure Code provided: “ ‘Arrest’ is derived, in part, from ORS 133.210 and 133.250, but specifically includes ‘constructive’ restraint and, with respect to the purpose of custody, uses...