444 P.3d 521
Or. Ct. App.2019Background
- Defendant was riding a TriMet MAX train, lacked a valid fare, and became irate after being issued a 30-day TriMet exclusion by Officer Berry.
- After being given exclusion paperwork, defendant spat on Berry’s shoe; Berry attempted an arrest and defendant struggled while officers handcuffed her on the platform.
- Once handcuffed and being escorted to a patrol car, defendant dropped her weight, refused to stand or get fully into the car, and "stiffened her legs" so officers had to force her knees to bend and shove her into the back seat.
- Defendant was convicted by a jury of aggravated harassment, resisting arrest, and interfering with a peace officer (IPO), and probation was revoked.
- After conviction, the Oregon Supreme Court decided State v. McNally, redefining "passive resistance" to include noncooperation that is nonviolent regardless of motive, a change defendant invoked on appeal.
- Defendant raised two unpreserved claims on appeal for plain-error review: (1) the trial court should have sua sponte granted a judgment of acquittal on the IPO count as the conduct was passive resistance under McNally; (2) the court should have sua sponte instructed the jury on passive resistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency / judgment of acquittal on IPO after McNally | State: evidence showed active resistance (continuous fight; stiffening legs; struggling while being shoved into car). | Defendant: conduct was nonviolent noncooperation (passive resistance); trial court should have acquitted under McNally. | Court: No plain error — evidence not obviously only passive resistance; reasonable dispute exists about whether conduct was active. |
| Sua sponte jury instruction on passive resistance | State: instruction not required because passive resistance is not an element and defendant did not raise it. | Defendant: evidence supported passive resistance so trial court should have instructed jury sua sponte. | Court: No plain error — passive resistance is not an element of IPO and defendant did not "raise" it; trial court had no duty to sua sponte instruct. |
| Whether passive resistance is an element of IPO | State: statutory text treats passive resistance as an exception; not an element to be negated by the State. | (Defendant implicitly) passive resistance should operate to negate IPO unless disproved. | Court: Passive resistance appears in statutory subsection as an exception; it is not an element of IPO. |
| Whether passive resistance is a defense the State must disprove when raised without notice | State: ORS 161.055 requires defendant to give notice or present affirmative evidence to have the State bear the burden. | Defendant: claimed passive resistance was effectively at issue by evidence. | Court: Defendant did not provide written notice or present defense evidence, so State bore no burden to disprove it; no sua sponte instruction required. |
Key Cases Cited
- State v. McNally, 361 Or. 314 (passive resistance = noncooperation that is nonviolent regardless of motive)
- State v. Patnesky, 265 Or. App. 356 (prior narrower view of passive resistance tied to protest; legislative history on intent)
- State v. Estabrook, 295 Or. App. 268 (refusal to obey order to leave airport was passive resistance)
- State v. Washington, 286 Or. App. 650 (refusal to provide ID during stop amounted to passive resistance)
- State v. Remsh, 221 Or. App. 471 (in resisting-arrest context, jerking away was not passive resistance)
- State v. Brown, 310 Or. 347 (plain-error framework; "obvious" legal error required)
- State v. Gaines, 346 Or. 160 (statutory interpretation framework to decide elements vs. defenses)