State v. Wright

• Decision Date: 28 December 1989
• Citation: 100 Or.App. 22,784 P.2d 445
• Parties: STATE of Oregon, Respondent, v. Jeffrey Kent WRIGHT, Appellant. 89NB0014; CA A60450.
• Court: Oregon Court of Appeals

Page 445

784 P.2d 445

100 Or.App. 22

STATE of Oregon, Respondent, v. Jeffrey Kent WRIGHT, Appellant.

89NB0014; CA A60450.

Court of Appeals of Oregon.

Argued and Submitted Sept. 25, 1989.

Decided Dec. 28, 1989.

Nick Nylander, North Bend, argued the cause and filed the brief, for appellant.

Wendy J. Paris, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

This case arose out of the arrest of defendant's brother during a disturbance at a North Bend tavern. Defendant was not involved in the disturbance until an officer had taken his brother away. At that point, defendant approached another officer, Wheeler, and protested. Wheeler testified that defendant became belligerent and struck him in the chest. Defendant testified that he did not strike Wheeler, but merely gestured at him. Wheeler then attempted to place him under arrest. When he resisted, a struggle ensued. Defendant claims that he did not direct force against Wheeler, but merely used his strength to make it difficult for Wheeler to handcuff him. Wheeler grabbed his right arm and another officer, King, grabbed his left arm. In an attempt to wrestle him to the ground, the officers lifted defendant's arms back toward his head. Eventually, he fell to the ground and was placed under arrest.

On the way to jail, defendant complained that the officers had injured his right arm, and he was taken to the hospital. He was examined by Dr. Bernstein, who testified that defendant had suffered a dislocated shoulder and extensive nerve and muscle damage during the arrest. Bernstein said that such an injury could only be caused by excessive force in pulling the arm back above the head.

Defendant was charged with assaulting a public safety officer, by striking officer Wheeler, and resisting arrest. At trial, he denied assaulting the officer and argued that his resistance was justified, because the arrest was made with excessive force. On the resisting arrest charge, defendant submitted jury instructions that were based on the holding in State v. Crane, 46 Or.App. 547, 533, 612 P.2d 735, rev. den. 289 Or. 903 (1980):

"I instruct you that under Oregon law, any person has the right to resist an arrest, even if the arrest is lawful, if that arrest is made with excessive force."

The court refused to give the instruction and, instead, instructed the jury on the different and separate defense of self-defense. ¹ Defendant pointed out that self-defense was not the theory of his defense. In fact, the words "self-defense" were never used by either the prosecution or the defense during the entire course of the trial.

Defendant was acquitted of assault but was convicted of resisting arrest. He assigns as error the trial court's refusal to give the quoted jury instruction. The state concedes that there was evidence that Wheeler used excessive force but argues that the court did not err, because the instructions actually given adequately informed the jury of his defense. We disagree.

As we recognized in State v. Crane, supra, a person may resist an arrest if it is being made with excessive force. At issue is whether the officer's belief concerning the necessity of force and the amount of force required to make an arrest was reasonable. If the jury finds that the officer's conduct was not reasonable, that is, that he used excessive force in making the arrest, the defendant's resistance is justified.

On the other hand, the defense of...