State v. Johnson

• Decision Date: 17 November 2010
• Docket Number: 071255179; A138789.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Billy Don JOHNSON, Defendant-Appellant.
• Court: Oregon Court of Appeals

243 P.3d 805

238 Or.App. 672

STATE of Oregon, Plaintiff-Respondent,

v.Billy Don JOHNSON, Defendant-Appellant.

071255179; A138789.

Court of Appeals of Oregon.

Submitted March 25, 2010.

Decided Nov. 17, 2010.

Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.

SCHUMAN, P.J.

Defendant was convicted of interfering with a peace officer by refusing "to obey a lawful order." ORS 162.247. On appeal, he raises three assignments of error. First, he argues that the trial court erred in denying his demurrer to the charge because the statute, on its face, violates the Oregon Constitution by requiring the jury to make a legal conclusion as to the order's lawfulness. Second, he maintains that the court erred in not granting his motion for a judgment of acquittal based on the state's failure to prove that he knew the order was lawful. Third, he contends that the court erred in rejecting his proffered jury instruction informing the jurors that they had to decide whether the officer's orders were lawful. We reject all three of defendant's arguments.

The relevant facts are not in dispute. Briefly: Defendant and a codefendant were involved in a physical altercation with Portland police officers who had responded to an interrupted 9-1-1 call indicating that a child might have been in danger within defendant's house. During the altercation, defendant struggled with one of the officers, who then ordered defendant to stop resisting. Defendant did not stop. Backup officers arrived, took control of the situation, and arrested defendant. He was charged with resisting arrest, harassment, and interfering with a peace officer. A jury convicted him on all charges. He appeals only the interference conviction.

Before trial, defendant demurred to the charge of interfering with a peace officer. He argued,

"ORS 162.247 is invalid on its face. * * * By criminalizing one's refusal to obey a 'lawful order' of a peace officer, ORS 162.247(1)(b) forces a jury to make an ad hoc determination between those orders that are lawful and those that are not. Though Article I, section 16[,] empowers juries to acquit defendants whose guilt has been proven beyond a reasonable doubt, it does not provide jurors with a blank slate to determine questions of law on an ad hoc basis. * * * Whether a particular * * * 'order' issued by a peace officer is, in fact, lawful is a matter of law. Matters of law are questions for judges to determine."

We agree that whether an order is "lawful" is ultimately a legal question, although-like the question of probable cause-it is a matter of law that can involve prior determination of predicate facts. See State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993) (probable cause involves legal and factual questions); State v. White, 211 Or.App. 210, 216-17, 154 P.3d 124, rev. den., 343 Or. 224, 168 P.3d 1155 (2007). We also agree that, under Article I, section 16, of the Oregon Constitution, it would be error to allow the jury to decide questions of law. Although the text of the provision states, "In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law," the Oregon Supreme Court long ago explained, "In order to effectuate the clause in the [C]onstitution, 'under the direction of the court as to the law,' it is the plain duty of the jury to accept and apply the law as giventhem by the court." State v. Wong Si Sam, 63 Or. 266, 272, 127 P. 683 (1912).¹

The problem with defendant's argument is that, on its face, ORS 162.247(1)(b) is silent with respect to the allocation of duties between the court and the jury:

"A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer as defined in ORS 181.610:

" * * * * *

"(b) Refuses to obey a lawful order by the peace officer or parole and probation officer."

A demurrer asserting a facial challenge to the constitutionality of a statute is an assertion that the legislature violatedthe constitution when it enacted the statute. The demurrer stands or falls on the statute itself, regardless of any facts, and the challenge can succeed only if there are no circumstances in which the statute could constitutionally be applied. State v. Pardee, 229 Or.App. 598, 600, 215 P.3d 870, rev. den., 347 Or. 349, 222 P.3d 30 (2009); Advocates for Effective Regulation v. City of Eugene, 160 Or.App. 292, 310, 981 P.2d 368 (1999). When a court in a prosecution under ORS 162.247(1)(b) presents only predicate factual questions to a jury but makes the determination regarding the legal effect of those facts on its own-or, in the words of Article I, section 16, directs the jury with respect to legal questions-no violation of Article I, section 16, occurs. We therefore reject defendant's facial challenge.

In a second assignment of error, defendant argues that the state needed to prove that he knew or should have known that the order he refused to obey was lawful. We rejected that argument in State v. Ruggles, 238 Or.App. 86, 242 P.3d 643 (2010).

Finally, defendant argues that the court erred by refusing to give the jury the following instruction:

"The state must provide evidence that the order given by the officers was lawful. The order must be

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