State v. Moravek

297 Or.App. 763

444 P.3d 521

STATE of Oregon, Plaintiff-Respondent,

v.Antoinette Sulueti-Ester MORAVEK, Defendant-Appellant.

A165088 (Control)

A165089

Court of Appeals of Oregon.

Argued and submitted December 19, 2018.

May 30, 2019

Erica Herb, 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.

Colm Moore, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Defendant appeals a judgment of conviction for aggravated harassment (Count 1), ORS 166.070 ; resisting arrest (Count 2), ORS 162.315 ; and interfering with a peace officer (Count 3), ORS 162.247, and another judgment of conviction revoking her probation. Defendant assigns error to the trial court’s failure to sua sponte issue a judgment of acquittal on Count 3. Defendant alternatively assigns error to the court’s failure to sua sponte instruct the jury on "passive resistance," as that term has been construed in State v. McNally , 361 Or. 314, 392 P.3d 721 (2017). Defendant acknowledges that both assignments of error were unpreserved and requests that we exercise our discretion to review for plain error. For the reasons that follow, we affirm the judgments of the trial court.

Defendant was riding a TriMet MAX train when Officer Berry, a Beaverton officer assigned to the Transit Division, asked for

proof of defendant’s fare. Defendant did not have valid fare, and Berry asked defendant to get off at the next stop. Defendant became "kind of irate" and "pretty rude." When the train reached the next transit stop, defendant, Berry, and other officers got off the train, and Berry issued a 30-day TriMet exclusion to defendant. After Berry handed defendant the related paperwork, Berry noticed that defendant was still standing close to her on the platform. Berry told defendant that she needed to either purchase a valid ticket or leave the platform. Defendant turned to walk away, but then defendant stopped, turned back toward Berry, and spat on Berry’s shoe. Berry then told defendant that she was under arrest. Berry attempted to put defendant in handcuffs, but defendant "whipped" her arm away. Two of the other officers came to Berry’s assistance. Defendant continued to struggle and "scream" at the officers, who eventually got defendant on the ground and in handcuffs.

Once defendant was in handcuffs, two officers walked her off the MAX platform, toward a parking area. With an officer on each side of her, defendant dropped her weight so that she "threw herself" or "fell" to the ground. The officers ordered defendant to stand up, but defendant refused, saying in effect that "it was now [the officers’] job and that [they] were strong enough and [they] should be capable of carrying her into a police car." Two officers physically lifted defendant from underneath her armpits and another officer carried defendant’s legs. The officers carried defendant to the patrol car and "somewhat" put her inside. One of the officers went to the other side of the car and pulled on defendant’s arms while another officer pushed on her thighs, and together they were able to "shove" defendant mostly into the back of the car, with only her legs sticking out one of the open doors. The officers ordered defendant to bend her knees and put her feet inside the car, but defendant refused and instead "stiffened her legs out" so that the door would not shut. Berry forced defendant’s knees to bend by pushing underneath her kneecaps. One officer testified that the encounter with defendant "was just a continual fight since—since we were on the platform with her."

Among other charges stemming from the incident, defendant was charged with interfering with a peace officer (IPO), ORS 162.247, for "unlawfully and knowingly refus[ing] to obey a lawful order of [Officer] Berry, a person known by the defendant to be a peace officer." ORS 162.247 provides, in pertinent part, that a person commits the crime of IPO if the person,

"knowing that another person is a peace officer or a parole and probation officer as defined in ORS 181A.355 :

"* * * * *

"(b) Refuses to obey a lawful order by the peace officer or parole and probation officer.

"* * * * *

"(3) This section does not apply in situations in which the person is engaging in:

"* * * * *

"(b) Passive resistance. "

(Emphasis added.) At the time of defendant’s trial, the controlling definition of "passive resistance" limited it to "specific acts or techniques that are commonly associated with governmental protest or civil disobedience." State v. Patnesky , 265 Or. App. 356, 366, 335 P.3d 331 (2014), abrogated by McNally , 361 Or. 314, 392 P.3d 721.

Defendant’s case proceeded to a jury trial. At trial, the state’s theory in regard to IPO was that, after defendant was handcuffed and off the platform, she refused to obey Berry’s orders to stand up, get into the patrol car, and bend her knees.¹ Defendant

did not move for a judgment of acquittal on the basis that her conduct amounted to passive resistance, nor did defendant request a jury instruction on passive resistance, although she raises those unpreserved errors on appeal. The jury found defendant guilty on all counts, and the trial court entered a judgment of conviction. Defendant was also found to be in violation of her probation on another, unrelated case because of the above-mentioned convictions.

Approximately one month after defendant was convicted, the Supreme Court decided McNally , which abrogated Patnesky and held that passive resistance is not limited to acts of governmental protest or civil disobedience. Rather, the court held that passive resistance

"refers to noncooperation with a peace officer’s lawful order that does not involve violence or active measures, whatever the motivation for the noncooperation and regardless of whether the noncooperation takes the form of acts, techniques, or methods commonly associated with civil rights or other organized protest."

361 Or. at 334, 392 P.3d 721 (emphasis added). Passive resistance "does not involve active conduct." Id. at 339, 392 P.3d 721. At the outset, we accept—and the state does not dispute—defendant’s assertion that, because "[e]rror, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial," State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002), rev. den. , 335 Or. 504, 72 P.3d 636 (2003), on appeal we must apply the definition of passive resistance that was articulated in McNally .

Based on McNally , defendant first assigns error on appeal to the trial court’s failure to sua sponte issue a judgment of acquittal on the IPO charge, arguing that, because her actions did not rise above the level of passive resistance, she was entitled to a judgment of acquittal. In the alternative, defendant assigns error to the trial court’s failure to sua sponte instruct the jury on passive resistance. Defendant concedes that her arguments are unpreserved but requests that we exercise our discretion under ORAP 5.45(1) to review the matter for plain error.

We may consider an unpreserved error under the plain-error doctrine. ORAP 5.45(1). Our plain-error analysis is conducted in two steps: First, we determine whether the error is "apparent on the face of the record," which means that the error is (1) one of law, (2) obvious and not reasonably in dispute, and (3) does not require us to choose between competing inferences or go outside the record to correct it. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991). Second, if we determine that the trial court committed plain error, we must decide whether to exercise our discretion to correct it. See id. at 382 n. 6, 823 P.2d 956 (identifying several factors we are to consider when deciding whether to correct plain error); see also State v. Reynolds , 250 Or. App. 516, 521, 280 P.3d 1046, rev. den. , 352 Or. 666, 293 P.3d 1045 (2012) (identifying additional factors).

In her first assignment of error, defendant argues that, after McNally , the trial court erred in failing to sua sponte acquit her of the IPO charge because the state failed to present sufficient evidence to show that defendant’s conduct "constituted anything other than ‘passive resistance’ for the purposes of ORS 162.247." State v. Washington , 286 Or. App. 650, 658, 401 P.3d 297 (2017). Defendant asserts that the evidence presented at trial was insufficient to support her conviction because the officers "uniformly" testified that, once defendant dropped to the ground, she did not fight or resist when she refused their orders to get up and get into the patrol car. Defendant argues that the evidence shows that defendant had simply refused to get up by her own power, a characterization of the evidence that defendant argues can be understood only to be passive resistance. Thus, defendant argues that the trial court was required to acquit her of IPO.

The state disputes defendant’s characterization of the testimony, arguing that evidence in the record shows that defendant engaged in "active measures." The state points out that one of the officers testified that, while the officers were shoving defendant into the patrol car, defendant "continued to fight this whole time," that she "stiffened

her legs out—out the door, so we wouldn’t be able to close the door," and that the encounter with defendant was "just a continual fight since—since we were on the platform with her."²

We have regularly declined, for "sound prudential and institutional reasons," to exercise our discretion to review for plain error in cases involving a purported insufficiency of the evidence when the defendant failed to move for a judgment of acquittal. State v. Inloes , 239 Or. App. 49, 54, 243 P.3d 862 (2010)...