State v. Donato
| Docket Number | A175853 |
| Decision Date | 23 February 2023 |
| Citation | 324 Or.App. 321,525 P.3d 493 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kristina Eva DONATO, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Hellman, Judge, and Landau, Senior Judge.
Defendant appeals from a judgment convicting her of interfering with a peace officer (IPO) (Count 1) and harassment (Count 2). She assigns error to the trial court's denial of her motion for a judgment of acquittal (MJOA) on Count 1. She argues, among other things, that the evidence is insufficient to establish that Officer Smithers's order to "sit down" was "lawful" for the purpose of her IPO conviction. The state disagrees, contending that defendant did not preserve her argument concerning the lawfulness of the order and that, regardless, the order was justified on grounds of officer safety. Because we conclude that defendant's challenge is preserved and that the evidence was not sufficient to establish that Smithers's order was lawful, the trial court erred in denying defendant's MJOA on Count 1. Accordingly, we reverse the judgment of conviction as to that count, remand for resentencing, and otherwise affirm.
We review the denial of an MJOA for legal error. State v. Newkirk , 319 Or App 131, 133, 509 P.3d 757, rev den , 370 Or. 214, 516 P.3d 1180 (2022). In doing so, "we view the evidence in the light most favorable to the state to determine whether a rational factfinder could find that the state had proved every element of the offense beyond a reasonable doubt." State v. Fields , 304 Or App 763, 764, 468 P.3d 1029 (2020) ; ORS 136.445. We set forth the relevant facts with that standard in mind.
On the occasion at issue, Officer Smithers approached defendant and her son, who were in their parked truck. Smithers intended to investigate an incident involving defendant's son, whom Smithers believed to be driving without a license. As Smithers attempted to talk to defendant's son, defendant got out of the truck. She was agitated and continuously yelled at Smithers and at Detective Freeman, who had arrived at the scene to assist Smithers. Smithers handcuffed defendant, and defendant kicked him in the shin. Smithers took defendant to the patrol car and instructed her to sit down three times before she complied the fourth time.
The state charged defendant by information with harassment ( ORS 166.065 ) for kicking Smithers and IPO ( ORS 162.247 (2019), amended by Or Laws 2021, ch 254, § 1)1 for failing to sit down upon his first three requests. Defendant pleaded not guilty, and the case was tried to a jury.
Smithers testified at trial, and the state introduced video footage of the incident recorded by the dashboard camera on Smithers's patrol car. According to Smithers, when he approached the truck's passenger side door to talk to defendant's son, defendant—who was in the driver's seat—became "confrontational." Video footage showed that the truck's doors were closed and defendant's arms were reaching out of the truck's driver-side window as Smithers approached; as Smithers tried to speak to defendant's son, defendant said, among other things, "Call your supervisor"; "I'm driving, bitch"; "I suggest before you force a Waco motherfucking situation here [inaudible]"; "Get the fuck off my fucking car * * * terrorist bitch." As Smithers spoke to defendant's son, defendant got out of the truck and moved toward Freeman, who had arrived at the scene to ensure Smithers's safety. The video footage shows that, while getting out of the truck, defendant said, "Look at me"; "I have no fucking gun"; "You see." She was wearing tight-fitting clothes that could not conceal a weapon.
Defendant then approached Freeman and stood by him for about a minute, saying, among other things, "Get your supervisor here now"; She then started moving closer to Freeman and quickly changed direction and moved towards Smithers while saying, "Get the fuck off my car, bitch." Freeman immediately followed defendant. Smithers testified that he attempted to tell defendant to stop but "she got too close too fast," giving Smithers no time to finish his sentence advising her to stop, so he promptly began to handcuff her. The video shows that Freeman put his hand against defendant's shoulder while Smithers handcuffed her. At that point, defendant asked, "How many officers do you think I'm going to take down?" Smithers advised her, "I'm doing this for my own safety," and told her to relax, as she continued to be verbally confrontational. Smithers testified that defendant physically cooperated while being handcuffed but continued to curse and yell. She said to Smithers, "Take your hands off me," at which point she stomped on the ground and kicked Smithers, who was handcuffing her hands behind her back.
Once defendant was handcuffed, Smithers and Freeman walked her to the patrol car, and Smithers instructed her to sit down four times. Defendant complied after eight seconds, on Smithers's fourth request. According to Smithers, being kicked on the job offended him; he did not say that it caused him concern for his safety and did not explain why he took defendant to the patrol car.
At the close of evidence, defendant moved for a judgment of acquittal on both the harassment and IPO charges. Regarding the IPO charge—the only charge at issue on appeal—defendant argued that the evidence was insufficient to establish that she knowingly disobeyed Smithers's order or that Smithers had "authority" to place her in the patrol car at that point in time, considering that she was not under arrest.
The trial court denied defendant's MJOA. It concluded that the evidence was sufficient to go to the jury, considering that the elements to be proved were that defendant "unlawfully and knowingly refused to obey a lawful order" by Smithers rather than "resisting arrest" or "interfering." The jury found defendant guilty, and the court entered a judgment of conviction.
On appeal, defendant assigns error to the trial court's denial of her MJOA on the IPO charge.2 She argues that neither handcuffing her nor ordering her into the patrol car was legally justified; rather, she argues, those actions were disproportionate and unreasonable under the circumstances. The state contends that defendant did not preserve her challenge to the lawfulness of Smithers's order and that, regardless, the order was lawful because it followed a lawful detention that was reasonable as a safety precaution.
We begin with preservation. Appellate courts generally will not review a claim of error that was not preserved in the lower court. ORAP 5.45 (1). "[A]n objection as to the legal insufficiency of evidence to prove a claim" requires that the objecting party "explain to the court and opposing party a specific reason for the asserted legal insufficiency."
State v. K. J. B. , 362 Or. 777, 791, 416 P.3d 291 (2018).
Asserting that defendant's challenge to the lawfulness of Smithers's order is unpreserved, the state contends that defendant did not sufficiently alert the trial court of her objection to the lawfulness of her handcuffing or of Smithers's order itself. We need not decide whether a challenge to Smithers's authority to handcuff defendant is preserved because the lawfulness of Smithers's encounter with her is not dispositive as to whether any order given during the encounter was lawful. State v. Kreis , 365 Or. 659, 668 n 16, 451 P.3d 954 (2019) ().
As to whether defendant's challenge to the lawfulness of Smithers's order itself is preserved, we conclude that defendant preserved her challenge. Defendant's objection to Smithers's authority to place her in the patrol car sufficiently alerted the trial court to her challenge to the sufficiency of the evidence as to that element. By asserting below that the evidence was insufficient to establish that Smithers had "authority" to issue the disputed order, defendant fairly apprised the trial court and the state of the "specific reason for the asserted legal insufficiency" of the order. K. J. B. , 362 Or. at 791, 416 P.3d 291 ; see also Hagler v. Coastal Farm Holdings, Inc. , 354 Or. 132, 146-47, 309 P.3d 1073 (2013) ().
We turn to the merits of defendant's claim, which concerns the lawfulness of Smithers's order to sit down in the police car after he handcuffed defendant.3 The applicable statutory provision, ORS 162.247, provides:
An order given under ORS 162.247(1)(b) is "lawful" if it is "authorized by, and is not contrary to, substantive law." Kreis , 365 Or. at 667-68, 451 P.3d 954 (); see also State v. Navickas , 271 Or App 447, 450, 351 P.3d 801, rev den , 358 Or. 248, 364 P.3d 1001 (2015) (...
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