State v. McClure
| Citation | 300 P.3d 210,256 Or.App. 200 |
| Decision Date | 17 April 2013 |
| Docket Number | A143705.,090850307 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Curtis Dwayne McCLURE, Defendant–Appellant. |
| Court | Court of Appeals of Oregon |
OPINION TEXT STARTS HERE
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Judy C. Lucas, Senior Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and EDMONDS, Senior Judge.
Defendant appeals a judgment of conviction for resisting arrest, ORS 162.315. On appeal, he assigns error to (1) the trial court's admission of “prior bad acts” evidence related to defendant's prior conviction for resisting arrest, and (2) the court's denial of his motion for judgment of acquittal. We reject defendant's first assignment of error without discussion. As to the second, defendant contends that the resisting arrest statute does not apply where, as here, a person resists being taken into custody for an alleged parole violation. We conclude that taking a person into custody for an alleged parole violation constitutes an “arrest” for purposes of the resisting arrest statute, ORS 162.315. Because there was evidence in this case from which a rational trier of fact could have found the essential elements of resisting arrest beyond a reasonable doubt, the trial court properly denied defendant's motion for judgment of acquittal. See State v. Lupoli, 348 Or. 346, 366, 234 P.3d 117 (2010). Accordingly, we affirm.
The few relevant facts are undisputed. While on routine patrol, Portland Police Officers Shaw and Reister contacted defendant on the street. Shaw asked for defendant's name; defendant answered, asked if he was under arrest, and, when told that he was not, kept walking. Shaw conducted a warrant check that revealed that defendant had an outstanding warrant for arrest. The officers again contacted defendant about one block from the original contact and informed him of the warrant. When the officers attempted to take defendant into custody, he resisted by tightening his arms and grabbing Shaw's finger. Shaw attempted a “hair hold takedown” to force defendant to the ground, but defendant, yelling and screaming, grabbed onto a light pole and refused to go to the ground. Defendant refused to comply with further instructions by the officers to “give me your hand” and “stop resisting.” Eventually, the officers, with the assistance of a private security guard, were able to take defendant into custody. Defendant was subsequently charged with one count of resisting arrest, and a jury convicted him.
In order to address defendant's second assignment of error, we must determine whether taking a person into custody for a parole violation constitutes an arrest for purposes of the resisting arrest statute, ORS 162.315. Accordingly, we must engage in our usual mode of statutory construction, considering the text, context, and any useful legislative history of the disputed statute in order to discern what the legislature intended. State v. Gaines, 346 Or. 160, 171–72, 206 P.3d 1042 (2009).
We begin with the applicable statutes. ORS 162.315 provides, in part:
“(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.
“(2) As used in this section:
“(a) ‘Arrest’ has the meaning given that term in ORS 133.005 and includes, but is not limited to, the booking process.
“[a]s used in ORS 133.005 to 133.400 and 133.410 to 133.450, unless the context requires otherwise:
“(1) ‘Arrest’ means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. * * * ”
Defendant contends that he could not be convicted for resisting arrest under ORS 162.315 because that statute applies only when a person is taken into custody for purposes of charging that person with an “offense” and, according to defendant, a parole violation is not an “offense” within the meaning of the statute. In short, defendant relies on the definition of “offense” in ORS 161.505 to contend that an “offense” is either a “crime” as defined in ORS 161.515 or a “violation” as described in ORS 153.008. Defendant reasons that, because a parole violation is neither a crime nor a violation, it is not an offense under ORS 133.005(1) and, therefore, taking a person into custody for a parole violation is not taking a person into custody “for the purpose of charging that person with an offense.” Because the evidence at trial was that the officers were taking defendant into custody for a parole violation, defendant asserts that he was entitled to a judgment of acquittal.
The state does not argue that taking a person into custody under a warrant for a parole violation is an “arrest” as that term is defined in ORS 133.005(1); rather, it contends that the proper analysis of the resisting arrest statute in this case hinges on the phrase “unless the context requires otherwise” in ORS 133.005. That is, the state maintains that the operative context in this case ( i.e., an arrest under a warrant for a parole violation), when viewed in light of statutes that make taking a person into custody for a parole violation an arrest, compels the conclusion that the legislature intended an arrest for a parole violation to qualify as an “arrest” under ORS 162.315.
We agree with defendant that a parole violation is not an offense as the term is used in ORS 133.005(1). However, we conclude that the statutory text, when considered in context and in light of the applicable legislative history, indicates that the legislature intended an arrest by a peace officer or a parole and probation officer for a parole violation to qualify as an arrest under the resisting arrest statute. The “unless the context requires otherwise” provision in ORS 133.005 and the legislative history of House Bill (HB) 3379 (2005) guide our conclusion that, in this context, a departure from the standard definition of “arrest” in ORS 133.005(1) is requiredin order to avoid conflicting with the legislative intent. Our construction of the statute is also consistent with the legislative purpose of the resisting arrest statute to “reduce challenges to arrest under color of law because such challenges foster civil disorder and disrespect for the law.” State v. Brandon, 35 Or.App. 661, 663, 582 P.2d 52,rev. den., 284 Or. 235 (1978).
Under ORS 162.315(2)(a), “ ‘[a]rrest’ has the meaning given that term in ORS 133.005 and includes, but is not limited to, the booking process.” Accordingly, we begin our analysis with the text of ORS 133.005. Again, that statute provides, in part, that,
“[a]s used in ORS 133.005 to 133.400 and 133.410 to 133.450, unless the context requires otherwise:
“(1) ‘Arrest’ means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. * * * ”
The legislature's inclusion of the phrase “unless the context requires otherwise” in a statutory definition indicates that
Necanicum Investment Co. v. Employment Dept., 345 Or. 138, 142–43, 190 P.3d 368 (2008). Accordingly, we must consider whether, in light of the context presented in this case and the entire statutory scheme, the use of the definition of arrest in ORS 133.005(1) would conflict with one or more aspects of the legislature's intent. Ultimately, we conclude that it would.
The legislature made several changes to the statutory scheme in 2005, through the enactment of HB 3379, that are pertinent to our analysis of the statute at issue. Before we examine those changes, some background is necessary to set the context for that legislative action. Prior to the 2005 amendments, ORS 162.315 did not include any reference to parole and probation officers. Accordingly, groups acting on behalf of parole and probation officers introduced HB 3379. The bill's proponents indicated that they wanted to address separate issues.
First, they wanted to clarify that the crimes of resisting arrest, ORS 162.315, and interfering with a peace officer, ORS 162.247, applied to parole and probation officers when performing their official duties—that is, arresting the individuals under their supervision for parole violations. Testimony, House Judiciary Committee, Subcommittee on Criminal Law, HB 3379, June 10, 2005, Ex C (statement of Mary Botkin, American Federation of State, County, and Municipal Employees). The proponents of the bill noted that some district attorneys would not charge resisting arrest when a parole or probation officer was involved because the statute only recognized the crime if committed against a “peace officer” and that parole and probation officers did not fall within the definition of “peace officer” in ORS 161.015. Id.
Second, the bill's proponents wanted to clarify and possibly expand the general arrest authority of parole and probation officers. Parole and probation officers were concerned that their...
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State v. McClure
...of the [underlying] offense.”The jury convicted defendant and the Court of Appeals affirmed his conviction. State v. McClure, 256 Or.App. 200, 300 P.3d 210 (2013). The court concluded that, although an arrest for a parole violation is not an arrest “for the purpose of charging [defendant] w......
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