State v. Bistrika

• Decision Date: 26 March 2014
• Docket Number: A146752.,09C47659
• Citation: 261 Or.App. 710,322 P.3d 583
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Alexander Alexandervi BISTRIKA, Defendant–Appellant.

261 Or.App. 710

322 P.3d 583

STATE of Oregon, Plaintiff–Respondent,

v.Alexander Alexandervi BISTRIKA, Defendant–Appellant.

09C47659; A146752.

Court of Appeals of Oregon.

Submitted Jan. 4, 2013.

Decided March 26, 2014.

Steven J. Sherlag filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

NAKAMOTO, J.

Defendant appeals a judgment of conviction on three counts of interfering with a peace officer, ORS 162.247, two counts of resisting arrest, ORS 162.315, and one count of disorderly conduct in the second degree, ORS 166.025. His convictions arose out of an incident that happened on his family's property after his mother called for emergency assistance, the responding deputy sheriffs overstayed their welcome, and he and other family members were arrested. He assigns error to the trial court's denial of his motion to suppress, motions for judgment of acquittal, and motion to merge the guilty verdicts for interfering with a peace officer. Defendant also assigns error to the trial court's refusal to give his proposed jury instruction on the dissipation of an emergency under the emergency-aid doctrine and to the delivery of the state's proffered jury instruction on community caretaking. We hold that the trial court properly denied defendant's motion to suppress evidence, as well as defendant's motion for judgment of acquittal on the interfering and disorderly conduct charges. However, we hold that the trial court did commit instructional error, and we reverse and remand the three counts of interfering with a peace officer; otherwise we affirm. We thus do not reach the alleged error regarding defendant's motion to merge the verdicts on those charges.

MOTION TO SUPPRESS

We state the pertinent facts for each assignment of error separately, beginning with the motion to suppress. We take the facts from the evidence presented at the suppression hearing, State v. Mazzola, 238 Or.App. 201, 203, 242 P.3d 674 (2010), recognizing that we are bound by the trial court's findings of fact if there is evidence in the record to support them, State v. Vasquez–Villagomez, 346 Or. 12, 23, 203 P.3d 193 (2009).

At about 2:00 a.m. on a summer night, defendant's mother placed an emergency call to request help in rescuing defendant, whom she thought had fallen into a pond on the family's property. That property is located at the end of a long driveway in a rural, mixed farm and residential area outside of Salem. Although the fire department normally responds to water rescue calls, Deputy Sheriff Lane was the closest to the address and was the first to arrive at the scene. When Lane arrived, he met several members of defendant's family, including defendant's mother, who, at that point, was hysterical about her son's welfare. She walked to the pond with Lane, and together they looked for defendant. Lane questioned defendant's mother, trying to ascertain defendant's location. After some questioning, defendant's mother admitted that she had not seen defendant fall into the pond. At about that time, Deputy Sheriff Lucca and Battalion Chief Wineman of the Marion County Fire Department both arrived at the scene.

Shortly thereafter, defendant arrived at the pond, dry and unharmed. He informed the deputies that he was the person they were looking for, that he had not fallen into the pond, and that they should “get the fuck off [his] property.” Although Lane initially testified that, at that time, he was unsure whether defendant was the one who purportedly had fallen into the pond or if anyone else was injured, on cross-examination, Lane admitted that once defendant showed up, the deputies “did not need to look for him anymore[,]” nor did they have information leading them to believe that anyone else was in the pond, that defendant was suicidal, or that a crime was in progress on the property.

After arriving at the scene, defendant continued to use abrasive language to inform the deputies that he was fine and that they were not welcome on his property. Lucca turned to defendant's mother—who was still highly emotional—to ask questions about why she had called for a water rescue and what defendant had told her. When Lucca attempted to speak with defendant's mother, defendant's sister arrived, tried to pull her mother away from the deputy, and told her not to speak with the deputies. Defendant's sister also told the deputies to “get the fuck off [the] property.” As Lucca attempted to arrest her for interfering with a peace officer, defendant's sister pulled her hands free and retreated toward her family. At that point, Lane requested additional patrol units to come to the scene to assist because defendant's sister was resisting arrest, and five to six family members, including defendant, were yelling aggressively at the two deputies, whose efforts to calm the situation were unavailing.

When a third deputy sheriff, Hunter, arrived at the scene, Lane and Lucca informed him that defendant's sister was under arrest. Defendant and his family became upset when Hunter began to take physical custody of defendant's sister; they did not follow orders from Lane to stay back and kept trying to push past Hunter to reach her. Lane testified that defendant's actions, along with those of his family, raised officer safety concerns. Defendant protested the loudest of all the family members, often using profanity to make his points, and was the most aggressive in trying to get past Hunter to reach his sister. As a result, Hunter eventually told defendant that he was under arrest. Defendant and Hunter then struggled, at one point falling down to the ground, as Hunter effected the arrest.

Defendant was charged with three counts of interfering with a peace officer, ORS 162.247; three counts of resisting arrest, ORS 162.315; ¹ and one count of disorderly conduct in the second degree, ORS 166.025. His sister, his mother, and his father were also charged with the commission of various crimes arising out of the events of that night.²

Before their consolidated trial, defendant and his codefendant family members moved to suppress all evidence collected after defendant was found dry and unharmed. The trial court granted the motion to suppress as to defendant's parents, but not as to defendant and his sister. The trial court determined that, although the deputies had been lawfully present on defendants' property pursuant to the emergency-aid exception to the warrant requirement, once defendant appeared dry and unharmed, the emergency had dissipated, as had the basis for the deputies to remain pursuant to that exception. The trial court nonetheless refused to suppress the evidence, citing State v. Janicke, 103 Or.App. 227, 796 P.2d 392 (1990), in which we held that the exclusionary rule does not apply to evidence of new crimes against police officers during unlawful stops or entries. We review the trial court's denial of defendant's motion to suppress for legal error. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

At a hearing on a defendant's motion to suppress, the state bears the burden to show, by a preponderance of the evidence, that the challenged evidence was lawfully obtained. ORS 133.693(4); State v. Tucker, 330 Or. 85, 89, 997 P.2d 182 (2000) (“[C]onsistent with ORS 133.693(4), the burden is on the state to prove that the warrantless search did not violate a protected interest of the defendant.” (Emphasis in original.)). We agree with the trial court's reliance on Janicke to deny the suppression motion based on defendant's actions when Lucca, and later Hunter, attempted to arrest his sister.

First, contrary to the state's argument, the trial court properly concluded that the emergency that brought the deputies to the family property had dissipated when defendant was found safe and dry. Lane admitted that he had no reason to believe there was any criminal activity afoot, that defendant was suicidal, or that anyone else had fallen into the pond and needed rescuing after defendant came forward. At that point, there ceased to be sufficient facts to support an objectively reasonable belief “that a warrantless entry [was] necessary to either render immediate aid to persons, or to assist persons who have suffered or who are imminently threatened with suffering, serious physical injury or harm.” State v. Baker, 350 Or. 641, 649, 260 P.3d 476 (2011) (footnotes omitted).

Second, assuming a violation of defendant's rights under Article I, section 9, of the Oregon Constitution, and contrary to defendant's argument, the trial court correctly denied defendant's motion to suppress despite the dissipation of the emergency on account of a line of cases, including Janicke, that began with State v. Gaffney, 36 Or.App. 105, 583 P.2d 582 (1978), rev. den., 285 Or 195 (1979). In Janicke, police officers entered the defendant's house to question him, which resulted in an altercation and a struggle between the officers and the defendant. 103 Or.App. at 230, 796 P.2d 392. The trial court granted the defendant's motion to suppress evidence related to the assault, harassment, and resisting arrest charges against him, because they were precipitated by the officers' unlawful entry. Id. We reversed, noting that “we have declined to extend the exclusionary rule to evidence of crimes committed against police officers during what turns out to be an illegal stop or entry.” Id. (citing State v. Burger, 55 Or.App. 712, 716, 639 P.2d 706 (1982), and State v. Weiland, 72 Or.App. 25, 695 P.2d 85,rev. den.,299 Or. 32, 698 P.2d 964 (1985)).

More recently, in State v. Neill, we applied the Gaffney line of cases to a defendant who did not act out “against” a police officer but, rather, acted in a way that “threatened the officer's safety * * *.” 216 Or.App. 499, 507, 173 P.3d 1262 (2007), rev. den.,...