State v. McNally
272 Or. App. 201
| Or. Ct. App. | 2015Background
- Defendant convicted of second-degree criminal trespass, interfering with a peace officer, and resisting arrest after a bus-station incident in Portland.
- Two officers arrested him after a dispute with a ticket agent and security guard; defendant allegedly resisted arrest.
- Defendant claimed passive resistance to the peace officer and self-defense to resisting arrest.
- Defendant proposed two jury instructions: (a) passive-resistance framing for interfering with a peace officer; (b) self-defense/force justification without officer-belief focus.
- Trial court refused both proposed instructions and gave a standard self-defense/arrest instruction permitting force only if the officer reasonably believes it necessary.
- Jury found defendant guilty on all counts; conviction for resisting arrest later reversed on appeal; other convictions affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether passive resistance can be a defense to interfering with a peace officer | State conceded no error but relied on Patnesky later. | Passive resistance should negate interference under ORS 162.247(3)(b). | Passive-resistance instruction not required; no error. |
| Whether instructing that an officer may use force if reasonably believed necessary shifted focus in self-defense | State argues no preservation issue and Oliphant distinction applies; officer belief may be considered. | Under Oliphant, focus on defendant’s reasonable belief should govern; officer-belief instruction is error. | Instruction permitting officer belief was error under Vanornum; reversible for resisting arrest. |
Key Cases Cited
- Oliphant v. State, 347 Or 175 (2009) (instruction focusing on officer belief impermissibly shifted focus from defendant)
- Vanornum v. State, 354 Or 614 (2013) (any officer-belief instruction for self-defense is error)
- Patnesky v. State, 265 Or App 356 (2014) (passive resistance relates to protest/civil disobedience; not all nonresponse allowed)
- Moore v. State, 324 Or 396 (1996) (standard for assessing jury-instruction legal error)
- Thaxton v. State, 190 Or App 351 (2003) (entitlement to jury instruction on legal principle when supported by evidence)