State v. Bistrika, 09C47657

• Decision Date: 23 April 2014
• Docket Number: 09C47657,A146754.
• Citation: 324 P.3d 584,262 Or.App. 385
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Svetlana Alexandrovna BISTRIKA, Defendant–Appellant.
• Court: Oregon Court of Appeals

262 Or.App. 385

324 P.3d 584

STATE of Oregon, Plaintiff–Respondent,

v.Svetlana Alexandrovna BISTRIKA, Defendant–Appellant.

09C47657; A146754.

Court of Appeals of Oregon.

Argued and submitted Feb. 19, 2013.

Decided April 23, 2014.

Lindsey K. Detweiler, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and WOLLHEIM, Judge, and SCHUMAN, Senior Judge.

DUNCAN, P.J.

This is a criminal case that arose out of the same incidents described in our opinion in State v. Bistrika, 261 Or.App. 710, 711–13, 322 P.3d 583 (2014), wherein defendant's mother called for emergency assistance, the responding deputy sheriffs stayed after they were asked to leave, and defendant and her brother, Alexander A. Bistrika (Alexander), her mother, and her father were arrested. Defendant was charged with three counts of interfering with a peace officer (Counts 1–3), ORS 162.247, two counts of resisting arrest (Counts 4–5), ORS 162.315, and one count of disorderly conduct in the second degree (Count 6), ORS 166.025. The four Bistrika family members filed motions to suppress, which the trial court granted with respect to defendant's mother and father and denied with respect to defendant and Alexander.¹ Defendant and Alexander proceeded to trial as co-defendants, and a jury convicted defendant of Counts 1, 3, 4, 5, and 6.

On appeal, defendant raises five assignments of error. In her first assignment of error, she argues that the trial court erred in denying her motion to suppress any evidence obtained after the deputies were asked to leave because (1) at that point, they were on the family property unlawfully and all evidence obtained as a result of their unlawful presence—including evidence of defendant's conduct—was subject to suppression under the exclusionary rule, and (2) defendant's conduct did not threaten officer safety and thus was not admissible under the exception to the exclusionary rule articulated in State v. Gaffney, 36 Or.App. 105, 583 P.2d 582 (1978), rev den, 285 Or. 195 (1979). In her second and third assignments of error, defendant argues that the trial court erred in denying her motions for judgment of acquittal on Counts 1 and 3, interfering with a peace officer, because the state failed to present evidence that would allow a reasonable factfinder to conclude that the deputies were performing lawful duties with respect to another person. In her fourth assignment of error, defendant argues that the trial court erred in denying her motion for judgment of acquittal on Count 6, disorderly conduct in the second degree, because the state failed to present evidence that would allow a reasonable factfinder to find that defendant recklessly created a risk of public inconvenience, annoyance, or alarm. In her final assignment of error, defendant argues that the trial court erred in instructing the jury on the community caretaking functions of peace officers because that instruction was unnecessary, likely to confuse the jury, and irrelevant to the issues in the case.

With respect to defendant's first assignment of error, we conclude that the trial court correctly denied the motion to suppress because, although the emergency dissipated once Lane saw that Alexander was unharmed, the officer safety exception to the exclusionary rule applies to the facts of this case. We conclude that defendant failed to preserve her second and third assignments of error for review. With respect to defendant's fourth assignment of error, we conclude, consistently with our opinion in Bistrika, 261 Or.App. at 719–20, 322 P.3d 583, that the state presented sufficient evidence for a rational factfinder to find that defendant recklessly created a risk of public inconvenience, annoyance, or alarm. With respect to defendant's fifth assignment of error, we conclude that the trial court erred in instructing the jury on community caretaking functions. Thus, we reverse and remand the two counts of interfering with a peace officer; otherwise, we affirm.

For purposes of defendant's first assignment of error, we present the facts as adduced at the suppression hearing. State v. Mazzola, 238 Or.App. 201, 203, 242 P.3d 674 (2010). We defer to the trial court's factual findings as long as there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

The single witness at the suppression hearing was Deputy Lane, who testified to the following facts: On July 25, 2009, at approximately 1:50 a.m., defendant's mother placed an emergency call for assistance because she believed that her adult son, Alexander, might have fallen into a creek or pond on the family property. The property is located at the end of a long driveway in a rural area outside Salem. Lane was the first person to respond. When Lane arrived, he contacted defendant's mother and several other family members. Defendant's mother was “hysterical” and “upset.” She showed Lane the pond that she thought her son had entered, and they looked to see if he was in the pond. Shortly thereafter, Deputy Lucca and Alexander appeared at approximately the same time. Alexander was dry and unharmed. He told the officers that he was the person they were looking for, that he had not been in the pond, and that they should “get the fuck off my property.” Lucca asked defendant's mother what had prompted her emergency call and why she was still upset.

Defendant arrived and told her mother not to speak with the officers. Defendant told the officers, “Get the fuck off my property.” Defendant also tried to pull her mother away from the officers. At that point, Lucca told defendant that she was under arrest for interfering with a peace officer. As Lucca was attempting to arrest her, defendant pulled free and retreated to where five or six of her family members were standing. The family members were upset and were yelling at the officers to leave the property.

Lane called for backup. A short time later, Deputy Hunter arrived. Lane pointed out defendant and told Hunter that she was under arrest. Hunter “was able to get [defendant] away from the family, and placed her into custody.” Meanwhile, the other family members were “[y]elling and screaming about why their sister was under arrest” and “trying to get past [Lane] to get to [defendant].”

The prosecutor asked Lane, “What officer safety concerns are there when you are dealing with dividing your attention among multiple subjects?” Lane replied, “Exactly that. It divides my attention. I can't focus on one person and what they're doing.”

On cross-examination, Lane testified that, once he saw Alexander, he no longer had any reason to believe that any person on the Bistrika property was in danger. Lane said that he remained on the property after Alexander appeared because he “needed to ensure that he was okay, and that everybody else was okay,” and to “[d]etermine if [Alexander] was a threat to himself or others.” However, Lane later acknowledged that he had no information to suggest that Alexander or anyone else on the property was suicidal.

As mentioned, defendant was charged with interfering with a peace officer, ORS 162.247 (Counts 1–3), resisting arrest, ORS 162.315 (Counts 4–5), and disorderly conduct, ORS 166.025 (Count 6). Before trial, Alexander filed a motion to suppress all evidence obtained after the deputies were told to leave the Bistrika property. That motion was joined by defendant, her mother, and her father. The trial court denied the motion with respect to Alexander and defendant and granted it with respect to her mother and father.

In a letter opinion dated May 17, 2010, the court ruled that the deputies were lawfully on the Bistrika property as a result of defendant's mother's request for emergency assistance. The court further ruled that, once Lane saw that Alexander was unharmed, “the search was no longer necessary,” but that Lane was still authorized to remain on the property to confirm that Alexander was the person he said he was, and to ask defendant's mother additional questions to determine why she remained hysterical. According to the court, Alexander and defendant were “clearly a direct threat to the officers at the scene and hostile from the start.”

The state filed a motion for reconsideration, arguing that the court should have denied the motion to suppress with respect to all four defendants. The court wrote a second letter opinion, dated June 24, 2010, adhering to its earlier decision and clarifying its reasoning:

“The court did find that the deputies were lawfully on the property pursuant to the emergency aid doctrine. What the court failed to make clear was that * * * once Alexander A. Bistrika was found unharmed and safe, [the] emergency had dissipated and the deputies were no longer lawfully on the property pursuant to the emergency doctrine.

“However, as the State points out, courts will not apply the exclusionary rule to evidence of a new crime after an unlawful stop, arrest, or search if there is a threat to the officer's safety. State v. Janicke, 103 Or.App. 227, 796 P.2d 392 (1990). Thus, once the emergency dissipated, any subsequent evidence may not be excluded if the State can show that the subsequent crime led to a threat to the deputies' safety.

“The State has not met this burden with regard to [defendant's father] and [defendant's mother]. There was no showing that either of these [defendants] threatened the safety of the deputies.”

Defendant was subsequently tried by a jury and convicted of two counts of interfering with a peace officer, two counts of resisting arrest, and one count of disorderly conduct. Defendant was acquitted of one count of interfering with a peace officer. This appeal...