State v. Moore

• Decision Date: 09 May 2001
• Parties: STATE of Oregon, Respondent, v. Spencer MOORE, Appellant.
• Court: Oregon Court of Appeals

25 P.3d 398

174 Or. App. 94

STATE of Oregon, Respondent, v. Spencer MOORE, Appellant.

Z763659; A109708

Court of Appeals of Oregon.

Submitted on Record and Briefs December 1, 2000.

Decided May 9, 2001.

Spencer Moore, filed the brief pro se.

Kaye E. McDonald, Assistant Attorney General, filed the brief for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

EDMONDS, P.J.

Defendant appeals from a conviction for drinking in public in violation of Portland City Code (PCC) 14.24.030. We affirm.

Defendant purchased a beer at Red's Brew Pub in the Portland International Airport food court. He drank most of the beer while seated at a table in the food court. Defendant then carried his beer glass with him while shopping at another store in the airport terminal and sat down at a table in the "D and E seating area," to wait for his wife, who was meeting passengers on an arriving flight. A Port of Portland police officer approached defendant and asked him if the glass on the table contained beer. Defendant immediately picked up the glass, drank the remaining beer, and replied, "Not anymore." The officer concluded that defendant was intoxicated and took him into custody. Defendant was later released and cited with "Drinking in Public," a violation of PCC 14.24.030.¹

Defendant pled "not guilty." After the state put on its case-in-chief, defendant's counsel made a "motion for an order of dismissal" on the ground that the state had failed to prove that defendant was drinking within a public right-of-way. The trial court denied the motion, stating:

"Well, I think that they meet their burden, at least to get past that point. The officer testified that this was an area for the public to wait who don't want to go through the metal detectors. It's a public seating area. And I think that's enough and that it was in an airport terminal—the terminal of an airport. So, it certainly gives the inference that it is a public—it's an area dedicated to public use. So, I'm going to deny the motion."

Defendant then put on his case-in-chief. After hearing all the evidence, the trial court ruled:

"I find that it is a public area place and the * * * ordinances do not have a knowledge requirement. They are basically unlawful for a person to drink alcoholic liquor on a public right-of-way. [Defendant] was drinking alcoholic liquor in a public right-of-way.

"There are public policy reasons for having alcoholic liquor contained within a small space. The airport is a public right-of-way, and I'm going to find [defendant] guilty."

Defendant was fined $150, of which $50 was suspended.

Defendant appeals, arguing that the trial court erred in denying his motion.² Specifically, he argues (1) that the trial court convicted him of a violation of the wrong ordinance-that the only ordinance applicable to his conduct was Port of Portland Ordinance 348, a provision under which he was not charged;³ (2) that he was not given notice that the area where he consumed the beer was a public right-of-way; and (3) that there was insufficient evidence to show that the area in which defendant drank his beer was a "public right-of-way," within the meaning of PCC 14.24.030.

Defendant's first two arguments depend on his theory that PCC 14.24.030, enacted in 1983, was implicitly repealed and replaced by Port of Portland Ordinance No. 348, enacted in 1989. The latter ordinance requires the designation of areas in which alcoholic beverages can be consumed legally. Although defendant argued generally to the trial court that there were no signs prohibiting the consumption of alcohol posted in the area in which he was arrested, we can find no mention in the record below of the doctrine of repeal by implication.⁴ Under ORAP 5.45, we will decline to review an issue on appeal unless it is first raised to the trial court. See Holbrook v. Precision Helicopters, Inc., 162 Or.App. 538, 544-45, 986 P.2d 646,

rev. den. 329 Or. 527, 994 P.2d 128 (1999). The requirement of preservation of error expressed by the rule exists so that the parties can litigate and the trial court can decide issues that may obviate the necessity for appeal. State v. Cunningham, 164 Or.App. 680, 687, 995 P.2d 561,

rev. den. 331 Or. 283, 18 P.3d 1100 (2000). Here, we decline to reach defendant's first two arguments because the trial court did not have the opportunity to rule on them.

Defendant's remaining argument is that there was insufficient evidence to show that he was within a "street, sidewalk, or other public right-of-way" when he was arrested. At trial, defendant directed the trial court's attention to the definition of "public right of way" found in PCC 16.90.280, which is part of Title 16, the Portland city traffic code. The trial court, using the "other area dedicated for public use" portion of that definition, found that the area of the airport terminal where defendant was seated was an area dedicated for public use. However, PCC 16.90.001 provides that the definition of "public right of way" found in PCC 16.90.280 applies only to uses of that phrase in Title 16, the traffic code. Thus, PCC 16.90.280 does not govern this nontraffic matter.

Section 14.04 of the PCC provides definitions for only two terms: "alcoholic liquor" (PCC 14.04.010) and "peace officer" (PCC 14.04.020). We are not aware of any other Portland city ordinance that defines a public right-of-way for purposes of PCC 14.24.030. We turn to the standard methodology for the interpretation of the meaning of an ordinance. City of Hillsboro v. Housing Devel. Corp., 61 Or.App. 484, 489, 657 P.2d 726 (1983) ("The same rules that govern statutory construction also apply to the construction of municipal ordinances."). We begin with the text and context of PCC 14.24.030, and rely on dictionary definitions to provide the range of possible meanings of words in their common usage. Osborn v. PSRB, 325 Or. 135, 146, 934 P.2d 391 (1997). Webster's Third New International Dictionary defines "right-of-way" as:

"1: a legal right of passage over another person's ground; * * * 2: the area or way over which a right-of-way exists; as a: a path or thoroughfare which one may lawfully use (as in crossing the property of another): one established by persons exercising the right to pass over the property of another b: the strip of land devoted to or over which is built a public road[.]" Webster's Third New Int'l Dictionary, 1956 (unabridged ed 1993).

The definition of "public" is:

"of, relating to, or affecting the people as an organized community: CIVIC, NATIONAL; * * * of or relating to the international community or to mankind in general: COMMON, UNIVERSAL[.]" Id. at 1836.

Thus, when those definitions are combined, the common understanding of the phrase "public right-of-way" in this context is "a path, thoroughfare, area or way that people as an organized community, the international community or humankind in general may lawfully use."

The context of PCC 14.24.030 supports that understanding of the phrase. The ordinance provides, "[i]t is unlawful for any person to drink alcoholic liquor upon any street, sidewalk, or other public right of way." (Emphasis added.) "Street" and "sidewalk" are other types of paths or thoroughfares that the public may lawfully use. Such an interpretation also honors the principle of ejusdem generis, according to which an open-ended "catch-all" term at the end of a list of specific items is intended to encompass only like items. See, e.g., Boyd v. Essin, 170 Or.App. 509, 516-17, 12 P.3d 1003 (2000),

rev. den.331 Or. 674, 21 P.3d 96 (2001) ("the general will partake of the same characteristics as the specific examples").

Defendant does not point to any ambiguity in the term "public right-of-way," nor is one apparent to us. His contentions appear to be that the phrase should be limited to mean only streets and sidewalks or, alternatively, that the area in which he was arrested was not a public right-of-way. However, using the methodology employed in statutory interpretation, we will construe municipal ordinances in such a way as to give meaning to each word or phrase, taking care not to add language to, or omit language from, what is written in the ordinance. Lane County v. R.A. Heintz Const. Co., 228 Or. 152, 157, 364 P.2d 627 (1961). In context, the phrase "other public right-of-way" refers to areas that are used by the public in the same way that sidewalks and streets are used but that are not sidewalks or streets. We turn to the evidence presented at trial to determine whether it demonstrates that the area in which defendant was arrested is used by the public like a sidewalk, street or other public thoroughfare. "Where, as here, defendant moved for judgment of acquittal at the end of the state's case, we consider all the evidence and will not reverse the trial court if the record as a whole contains sufficient evidence to support a conviction." State v. Gaynor, 130 Or.App. 99, 101 n. 1, 880 P.2d 947 (1994), rev. den. 320 Or. 508, 888 P.2d 569 (1995).

The evidence offered by the arresting officer was that he found defendant seated and drinking his beverage in the "D and E seating area." The area, according to the record, is a corridor in the central terminal through which the public travels from the ticket counter area to the security check points that are necessary to reach the departure and arrival gates, and seating is provided in the corridor for those who do not want to go through the metal detectors. The officer also testified that the area in which defendant was seated is not visible from the brew pub where defendant purchased his beverage. Defendant's wife's testimony confirmed that the area is a public corridor or thoroughfare; "That's what I saw—is a kind of like big, wide open hallway to me." Because the area in which defendant was seated qualifies as an area through which...