State v. Prophet

• Decision Date: 16 March 2022
• Docket Number: A171101
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Josie Christy Ann PROPHET, Defendant-Appellant.
• Court: Oregon Court of Appeals

318 Or.App. 330

507 P.3d 735

STATE of Oregon, Plaintiff-Respondent,

v.Josie Christy Ann PROPHET, Defendant-Appellant.

A171101

Court of Appeals of Oregon.

Argued and submitted October 20, 2020.

March 16, 2022

Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

KAMINS, J.

Defendant was convicted of resisting arrest, ORS 162.315, after attempting to prevent a police officer from arresting her for driving under the influence of intoxicants. She appeals, arguing that the trial court erred in refusing to deliver her proposed jury instruction stating that an individual must intentionally create a substantial risk of harm to be convicted of resisting arrest.¹ We conclude that the trial court did not err in refusing to give defendant's proposed instruction because ORS 162.315 does not require that a defendant intentionally created a substantial risk of harm. Accordingly, we affirm.

I. FACTUAL BACKGROUND

The relevant facts are undisputed. At 4:00 p.m. on April 11, 2018, Oregon State Police Trooper Held was dispatched to locate a silver Toyota Camry that was reportedly being driven by someone under the influence of intoxicants. Held located the vehicle parked on the shoulder of the road between Burns and John Day, observing that the engine was still running, and defendant was asleep in the driver's seat. Held knocked on the window to awaken defendant and asked her a few questions, which defendant answered politely. However, Held observed that defendant's movements were slow and that she had watery, bloodshot eyes, and droopy eyelids—all indicators of alcohol impairment.

Held asked defendant to perform field sobriety tests, at which point defendant's demeanor changed "drastically." Defendant appeared noticeably more upset and began to alternate between cursing loudly and sitting on the ground crying. Due to defendant's irritability, Held began to suspect that she was under the influence of methamphetamine rather than alcohol and informed her that she was under arrest for driving under the influence of intoxicants. Held approached defendant and attempted to put her hands behind her back, but she became rigid and attempted to pull her arm closer to her body and away from Held. Held warned defendant that he would consider anything further to be resisting, but defendant continued to scream "[n]o" and that she "wasn't doing this." With the help of Harney County Sherriff's Deputy Nisbet, who had just arrived on scene, Held attempted to force defendant down to her knees using a "modified arm bar" technique so that he could place handcuffs on her. Although defendant continued to try and pull away, the technique succeeded, and Held was able to complete the arrest. As Held and Nisbet attempted to walk defendant over to the patrol car, defendant dragged her toes on the pavement, forcing them to carry her.

After a search incident to arrest yielded drug paraphernalia that tested positive for methamphetamine residue, the state charged defendant with both possession of methamphetamine, ORS 475.894 (2018),² and resisting arrest, ORS 162.315. At trial, defendant requested a jury instruction that, to be convicted of resisting arrest, the jury had to find that she acted "with a conscious objective to create a substantial risk of physical injury to any person." The trial court refused to give defendant's proposed instruction, however, explaining that the statute does not require proof that defendant intended to create a substantial risk of physical injury. Rather, the court reasoned, the intent requirement applies only to the statute's conduct element: "use or threatened use of violence, physical force or any other means." Defendant was later convicted of resisting arrest.

On appeal, defendant assigns error to the trial court's refusal to give her proposed instruction. She argues that ORS 162.315 requires proof that defendant intended to create a substantial risk of injury and that she was therefore entitled to have her proposed jury instruction given.

II. STANDARD OF REVIEW

We review a trial court's jury instructions for legal error. State v. Harper , 296 Or. App. 125, 126, 436 P.3d 44 (2019). "A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim or defense and that instructional error permits the jury to reach a legally erroneous result." Id.

III. ANALYSIS

Under ORS 162.315, a person may not "intentionally resist" someone "known by the person to be a peace officer or parole and probation officer in making an arrest." Paragraph (2)(b) defines "resist" in relevant part as:

"the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes, but is not limited to, behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer."

ORS 162.315(2)(b). Here, the parties dispute to which portions of that definition the modifier "intentionally" applies.

Defendant argues that the intent requirement in ORS 162.315 applies to each part of the definition of resisting: that a defendant must (1) intentionally use or threaten to use violence, physical force, or any other means to (2) intentionally create a substantial risk of physical injury to any person. That is evident, in defendant's view, for two reasons. First, conduct can only constitute "resisting" if it satisfies the second part; that is, if it creates a substantial risk of physical injury to any person. Thus, the legislature likely intended the mental state of intent to apply to both parts of the prohibited conduct. Second, even if the legislature had not specifically intended the intent requirement in ORS 162.315 to apply to the creation of a substantial risk of physical injury, it is nevertheless required by Oregon's statutory scheme governing the construction of statutes with respect to the requisite mental state.

In response, the state argues that defendant's interpretation is inconsistent with the text of ORS 162.315, which specifies that behavior "clearly intended to prevent being taken into custody" violates the statute regardless of whether defendant intends to create any risk of physical injury. The state contends that its interpretation is further bolstered by legislative history, where prior drafts of the statute more clearly indicated that the intent requirement was meant to apply only to the act of preventing defendant from being taken into custody—not to the creation of a risk of injury. To resolve the issue, we must answer two questions: does the element of creating a substantial risk of injury require a culpable mental state, and if so, is that mental state intentionally?

A. Overview of Culpability Provisions

Determining which culpable mental state attaches to which elements of a crime is a "chronically vexing problem." State v. Schodrow , 187 Or. App. 224, 228, 66 P.3d 547 (2003). The problem largely stems from the interaction of two different sets of statutes governing the analysis. First, as always, we construe the statute defining the crime to "pursue the intention of the legislature if possible." ORS 174.020. However, for the purpose of construing the requisite mental state in criminal statutes, the legislature has also supplied a separate set of default rules which, "[a]s the courts have repeatedly pointed out since 1978, *** are confusing." State v. Ruggles , 238 Or. App. 86, 89, 242 P.3d 643 (2010) (citing State v. Blanton , 284 Or. 591, 595, 588 P.2d 28 (1978) ).

Those general culpability statutes for the most part reflect the legislature's policy choice to "use the Model Penal Code (MPC) approach to culpability." State v. Owen , 369 Or. 288, 309-10, 505 P.3d 953 (2022). A key objective of the Model Penal Code (MPC) is to "limit the condemnation of conduct as criminal when it is without fault." ORS 161.025 (1)(d) ; Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 11, 11 (July 1970) ("The Commission follows the Model Penal Code in expressing a policy adverse to use of ‘strict liability’ concepts in criminal law, whenever the offense carries a possibility of sentence of imprisonment."). At its core, "[t]he MPC approach is based on the principle that, to be criminally liable, a person must know or have reason to know ‘the facts that give his conduct its offensive character.’ " State v. Olive , 259 Or. App. 104, 113 n. 2, 312 P.3d 588 (2013) (citing MPC § 1.13 comment at 211). As a result, the MPC requires, and Oregon adopted, a culpable mental state for "each material element" of the crime. Id . ; ORS 161.095(2).

Oregon's culpability statutes are the legislature's attempt to effectuate the general goal of requiring a culpable mental state for each of a crime's material elements. Under ORS 161.095(2), "a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." That statute creates two questions: (1) What are the "material elements that necessarily require a mental state"?; and (2) What "culpable mental state" should apply to those elements?³

Turning to the second question first, the legislature supplied statutory default rules to aid in determining which mental state to apply. ORS 161.115. Those rules differ depending on whether a criminal statute contains an explicit mental state, governed by ORS 161.115(1), or not, governed by ORS 161.115(2). If a statute defining a criminal offense explicitly provides a mental state, that...