State v. Seidel
| Decision Date | 17 October 2018 |
| Docket Number | A162051 |
| Citation | 294 Or.App. 389,432 P.3d 304 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Zachary Frank SEIDEL, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Kyle Krohn, 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.
Christopher Page, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
Defendant appeals a judgment of conviction for interfering with a peace officer, ORS 162.247, arising out of his failure to obey a police officer’s order to leave a public meeting of the Astoria City Council after he spoke out of turn and refused to obey the mayor’s request that he leave. Defendant contends that the trial court erred in denying his motion for judgment of acquittal. Additionally, defendant argues that the imposition of certain conditions of probation and a $100 fee were inappropriate. We affirm the trial court’s denial of defendant’s motion for a judgment of acquittal; decline to address the special conditions of probation as we have concluded that that issue is moot; and decline to exercise our discretion to reverse the imposition of the $100 fee. Accordingly, we affirm.
In reviewing the trial court’s denial of defendant’s motion for judgment of acquittal, we view the facts in the light most favorable to the state and draw all reasonable inferences in the state’s favor. State v. Lupoli , 348 Or. 346, 366, 234 P.3d 117 (2010).
The mayor of Astoria began a city council meeting with discussion about a communication tower. The mayor allowed public comment on the tower both during and at the end of the discussion. After closing the discussion, the mayor asked if anyone objected to the council’s jurisdiction to hear the next item on the agenda. At that point, defendant came up to the podium and began to speak about the communication tower. The mayor explained that defendant had missed his opportunity to address that issue, but defendant continued to talk and told the mayor, "You’re under citizen’s arrest." The mayor asked defendant to leave council chambers, but defendant refused and began to give the mayor Miranda warnings.
Police Chief Bradley Johnston, who was attending the council meeting, asked the mayor if she wanted defendant removed. The mayor said yes, so Johnston approached the podium and showed his badge to defendant. Defendant greeted the chief by saying, Johnston asked and then ordered defendant to leave, but defendant refused. Johnston touched defendant’s arm, and defendant pulled away, turned, and made movements suggesting he was going to swing at Johnston. Johnston forced defendant to the ground. Defendant tried to get up and push Johnston away, while "ranting" about conspiracies and asking the attendees for help. When other officers arrived, defendant cooperated and was escorted out of the meeting.
The state charged defendant with interference with a peace officer, as well as second-degree disorderly conduct and second-degree trespass. The case proceeded to a jury trial, where defendant represented himself with the assistance of a court-appointed legal advisor. At the close of evidence, defendant moved for a judgment of acquittal on the count of interfering with a peace officer on the grounds that the order that defendant refused to obey was not lawful. The court denied the motion, stating:
The jury found defendant guilty of interfering with a peace officer, but acquitted him of the other charges.
On the same day that the jury rendered its verdict, the trial court sentenced defendant. The state proposed that the court include a mental health evaluation as part of probation and asked the court to assess "the standard court costs for misdemeanor conviction and probation." The trial court placed defendant on 18 months of bench probation subject to several conditions, including submitting to a mental health evaluation and signing a release so the court could access information from that evaluation. The court asked defendant about his ability to pay attorney fees, and defendant stated that he did not have a regular source of income, but that he did some "odd jobs" and received "one form of government assistance, the food." The court waived attorney fees, but imposed a $100 probation fee and a $100 misdemeanor fine, because the court thought it was "required to." The court informed defendant that he could set up a payment plan of as little as $5 a month.
On appeal, defendant assigns error to the trial court’s (1) denial of his MJOA, (2) imposition of a condition of probation requiring him to pay the costs of his mental health evaluation and treatment, (3) imposition of a condition of probation requiring him to sign releases of information pertaining to his mental health treatment, and (4) imposition of the misdemeanor fine. With regard to the second and third assignments, as noted above, we have concluded that the issues are moot. Thus, we examine only the first and fourth assignments.
Regarding the first assignment of error, defendant contends that the trial court should have acquitted him of interfering with a peace officer, because the police chief’s order was not "lawful." We review "to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Hall , 327 Or. 568, 570, 966 P.2d 208 (1998).
The essential elements of interfering with a peace officer, as stated in ORS 162.247(1), are that "the person, knowing that another person is a peace officer * * * [r]efuses to obey a lawful order by the peace officer[.]" A "lawful order" is one authorized by, and not contrary to, substantive law. State v. Ausmus , 336 Or. 493, 504, 85 P.3d 864 (2003). When a defendant raises the lawfulness of an order as a defense, the state still has the burden of proving the element and disproving the defense beyond a reasonable doubt. State v. White , 211 Or. App. 210, 216, 154 P.3d 124 (2007), adh’d to on recons. , 213 Or. App. 584, 162 P.3d 336 (2007), rev. den. , 343 Or. 224, 168 P.3d 1155 (2007).
Defendant argues that Johnston’s order was not lawful because Oregon’s Public Meetings Law, as defendant understands it, does not allow the exclusion of anyone from a public meeting unless a statutory exception applies.1 As there is no explicit statutory exception for excluding individuals who speak out of turn, defendant concludes that the mayor, and therefore also Johnston, lacked legal authority to order him out of the city council meeting. The state responds that the mayor had authority to maintain order at city council meetings pursuant to the city charter and, further, that the provisions in the Public Meetings Law do not displace a local government’s authority to regulate the conduct of its governing body’s open meetings.
When determining whether an order is "lawful," or in compliance with "the substantive laws of the state," we look at whether the order at issue was lawful on its face. State v. Navickas , 271 Or. App. 447, 451, 351 P.3d 801 (2015), rev. den. , 358 Or. 248, 364 P.3d 1001 (2015). Here, the order was made pursuant to the mayor’s authority under the Astoria City Charter to "preserve order" when the mayor is present at city council meetings. Astoria City Charter of 1997, Section 4.4(1)(b). Nevertheless, defendant contends that the mayor’s order was unlawful on its face, because Oregon’s Public Meetings Law, which does not have an explicit provision giving authority to "preserve order," prevails over the mayor’s authority under the charter.
Oregon’s Public Meetings Law, ORS 192.610 to 192.690, provides that "[a]ll meetings of the governing body of a public body shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by [the Public Meetings Law]." ORS 192.630(1) (emphasis added). Defendant contends that the italicized portion gives each and every person a right to be present at any meeting subject to the law unless an exception is spelled out in the law itself. Defendant bases his conclusion on the dictionary definitions of "all," "permit," and "attend." However, in construing a statute, we do more than simply consult dictionaries and interpret words in a vacuum. State v. Cloutier , 351 Or. 68, 96, 261 P.3d 1234 (2011). We must also consider the context in which the legislature used the words and other indicators of the legislature’s intent. Elk Creek Management Co. v. Gilbert , 353 Or. 565, 574, 303 P.3d 929 (2013).
The legislature enacted the Public Meetings Law in 1973 as part of an effort to help build public confidence in government. Tape Recording, Joint Special Committee on Professional Responsibility, SB 15, Feb. 26, 1973, Tape 2, Side 2 (statement of Sen. Fred Heard). The bill was intended to be a clear-cut statement of public policy condemning the practice of governmental bodies holding "secret meetings." Id. Legislators reasoned that, because taxpayer money goes directly to governmental bodies, the public has a right to know what goes on at their meetings. Id. (statement of Rep. Robert Ingalls).
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