State v. White

• Decision Date: 28 February 2007
• Docket Number: A122135.,CF020469.
• Parties: STATE of Oregon, Respondent, v. David Burton WHITE, Appellant.
• Court: Oregon Court of Appeals

154 P.3d 124

211 Or. App. 210

STATE of Oregon, Respondent, v. David Burton WHITE, Appellant.

CF020469.

A122135.

Court of Appeals of Oregon.

Argued and Submitted April 20, 2006.

Decided February 28, 2007.

Mary M. Reese, Salem, argued the cause and filed the brief for appellant.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and WILSON, Judge pro tempore.

ORTEGA, J.

Defendant appeals his convictions for interfering with a peace officer, ORS 162.247, and first-degree arson, ORS 164.325.¹ Defendant first assigns error to the trial court's denial of his motion for judgment of acquittal on the charge of interfering with a peace officer, contending that the police officer's order, which led to that conviction, was not lawful. Defendant also assigns error to the trial court's ruling allowing a rebuttal witness to testify, contending that the state committed a discovery violation with respect to that witness. We affirm both rulings.

When reviewing a motion for a judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Turley, 202 Or.App. 40, 48, 120 P.3d 1229 (2005), rev. den., 340 Or. 157, 130 P.3d 786 (2006).

The police and fire departments responded to a fire at defendant's home. Because of the nature of the fire and other suspicious circumstances, the fire chief believed that the fire might have been caused by arson and requested an investigation. When defendant arrived on the scene the morning of the fire, a police lieutenant informed him that crime-scene barrier tape would be placed around his house and that defendant could not go inside until the crime scene was opened and the barrier tape was removed. Yellow crime-scene tape printed with "FIRE LINE DO NOT CROSS" was placed around the house.

Several hours later, an arson investigator arrived on the scene. He asked defendant to compile a list of items that he would not want to lose in a fire and their location in the house. In the investigator's experience, people who deliberately set fire to their residences will often remove photo albums and other valuables before setting the fire. The investigator also asked defendant to sign a consent form giving the police permission to enter his house in order to investigate the fire. The form indicated that, if defendant later wanted to revoke that consent, he needed to tell the police that he wanted them out of his house. Nothing in the consent form stated that defendant could not enter his house while the police were there. In addition the investigator did not suggest to defendant that, by signing the form, he was also consenting to stay out of the house. Defendant read and signed the form.

The next morning, a police officer saw defendant walking briskly from a neighbor's house directly toward his garage. The officer shouted several times at defendant to stop. Defendant turned and looked at the officer but continued under the crime-scene tape and into the garage. The officer saw that defendant was carrying papers in his left hand and appeared to be holding something under his jacket in his right hand. The officer entered the garage and questioned defendant, who seemed to be very nervous and indicated that he was there to deliver the requested list to the investigator.

The investigator later entered the garage and found a photo album that had not been present before defendant's entry. Defendant later admitted to placing the photo album in the garage, explaining that he had felt intimidated by the investigator's questions about valuables in the house and had put the photo album in the garage to "meet [the investigator's] needs."

A jury convicted defendant of one count of interfering with a peace officer, ORS 162.247, and one count of arson, ORS 164.325. During trial, defendant moved for a judgment of acquittal on the charge of interfering with a peace officer, contending that the officer's order for defendant to stop was unlawful. Also, defendant objected to allowing one of the state's witnesses to testify on the ground that the state had failed to "promptly" notify him about that witness, violating discovery rules. See ORS 135.845(2). The trial court denied defendant's acquittal motion and allowed the state's witness to testify.

On appeal, defendant contends that the trial court should have granted his motion for judgment of acquittal because the state failed to prove that he refused to obey a "lawful order," which is one of the elements of the crime of interfering with a police officer. ORS 162.247 provides, in part:

"(1) A person commits the crime of interfering with a peace officer if the person * * *:

* * * * *

"(b) Refuses to obey a lawful order by the peace officer * * *."

The order at issue here was the officer's directive to defendant to stop before entering his garage. Defendant acknowledges, and we agree, that the order was lawful if the police had the authority, under the state and federal constitutions,² to enter defendant's house and divest him of the right to possess, use, or enter it. That authority to enter and divest must be pursuant to an exception to the warrant requirement, because no warrant was issued. See State v. Smith, 327 Or. 366, 376-77, 963 P.2d 642 (1998) (a warrantless seizure is unlawful unless it falls within one of the narrow exceptions to the warrant requirement). Here, the relevant exception to the warrant requirement is consent. See State v. Lambert, 134 Or.App. 148, 151, 894 P.2d 1189 (1995) (recognizing consent as an exception to the warrant requirement under both the state and federal constitutions).

The state first contends that defendant's challenge to the lawfulness of the order was untimely. According to the state, the lawfulness of an order is, like the lawfulness of a search, a question of law that must be raised and decided in pretrial motions rather than in a motion for judgment of acquittal. Defendant responds that, because his challenge was to the sufficiency of the evidence that the order was lawful, the motion was timely. We agree with defendant.

Motions for judgments of acquittal are governed by ORS 136.445, which provides:

"In any criminal action the defendant may, after close of the state's evidence or of all the evidence, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced theretofore is such as would not support a verdict against the defendant. The acquittal shall be a bar to another prosecution for the same offense."

Although the statute specifies that such a motion should be made after the close of the state's evidence or after the close of all the evidence, the state contends that defendant should have raised the issue pretrial, because the lawfulness of an order is a question of law rather than a fact issue for the jury.

The state provides no support for that assertion. Although it is true that issues similar to the one presented here often arise in the context of pretrial motions,³ there exists no pretrial mechanism by which a defendant may challenge the sufficiency of the state's proof of an element of a crime. See State v. Weber, 172 Or.App. 704, 714, 19 P.3d 378 (2001) ("[W]e are unaware of any Oregon authority by which a pretrial motion * * * can be employed to challenge the sufficiency of the state's anticipated proof of a charge." (Internal quotations marks omitted.)). Rather, we have treated challenges to the sufficiency of the evidence concerning the lawfulness of an order in the same manner as challenges to the sufficiency of the evidence as to any other element.

For example, an essential element of criminal trespass in the second degree, ORS 164.245,⁴ is that the underlying order to leave the premises must be "lawful." State v Riddell, 172 Or.App. 675, 679-80, 686-87, 21 P.3d 128, rev. den., 332 Or. 430, 30 P.3d 1183 (2001). The lawfulness of such an order may be limited or circumscribed by statutory or constitutional provisions and may be raised as a defense. State v. Marbet, 32 Or.App. 67, 72, 573 P.2d 736 (1978). Accordingly, "[w]hether a person has a constitutional right to remain as an incident to the proper exercise of a constitutionally protected right may be inquired into in contesting the lawfulness of the direction to leave the premises." Id. at 73, 573 P.2d 736. When the lawfulness of an order is raised as a defense, the state still has the burden of proving the element and disproving the defense beyond a reasonable doubt. State v. Cargill, 100 Or.App. 336, 341, 341 n. 5, 786 P.2d 208 (1990), aff'd by an equally divided court, 316 Or. 492, 851 P.2d 1141 (1993), overruled on other grounds by Stranahan v. Fred Meyer, 331 Or. 38, 11 P.3d 228 (2000).

In Cargill, the defendant challenged the lawfulness of an order—claiming that his activity was constitutionally protected—in a motion for a judgment of acquittal. 100 Or. App. at 340, 348, 786 P.2d 208. We reversed the trial court's denial of the defendant's motion because we agreed that he was engaged in a constitutionally protected activity. Id. at 348, 786 P.2d 208. We noted that the order was unlawful and that, therefore, the state had failed to produce evidence that would support a verdict against the defendant. Id.

Here, the lawfulness of the order at issue turns on the scope of defendant's consent. Scope of consent is most often addressed pretrial in response to a motion to suppress certain evidence. See, e.g., State v. Buchanan, 185 Or.App. 68, 57 P.3d 930 (2002); State v. Jacobsen, 142 Or.App. 341, 922 P.2d 677 (1996); State v. Arroyo-Sotelo, 131 Or.App. 290, 884 P.2d 901 (1994). In a motion to suppress, although...