State v. McClure

300 P.3d 210, 256 Or. App. 200, 2013 WL 1682503, 2013 Ore. App. LEXIS 456
CourtCourt of Appeals of Oregon
DecidedApril 17, 2013
Docket090850307; A143705
StatusPublished
Cited by1 cases

This text of 300 P.3d 210 (State v. McClure) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McClure, 300 P.3d 210, 256 Or. App. 200, 2013 WL 1682503, 2013 Ore. App. LEXIS 456 (Or. Ct. App. 2013).

Opinions

ORTEGA, R J.

Defendant appeals a judgment of conviction for resisting arrest, ORS 162.315. On appeal, he assigns error to (1) the trial court’s admission of “prior bad acts” evidence related to defendant’s prior conviction for resisting arrest, and (2) the court’s denial of his motion for judgment of acquittal. We reject defendant’s first assignment of error without discussion. As to the second, defendant contends that the resisting arrest statute does not apply where, as here, a person resists being taken into custody for an alleged parole violation. We conclude that taking a person into custody for an alleged parole violation constitutes an “arrest” for purposes of the resisting arrest statute, ORS 162.315. Because there was evidence in this case from which a rational trier of fact could have found the essential elements of resisting arrest beyond a reasonable doubt, the trial court properly denied defendant’s motion for judgment of acquittal. See State v. Lupoli, 348 Or 346, 366, 234 P3d 117 (2010). Accordingly, we affirm.

The few relevant facts are undisputed. While on routine patrol, Portland Police Officers Shaw and Reister contacted defendant on the street. Shaw asked for defendant’s name; defendant answered, asked if he was under arrest, and, when told that he was not, kept walking. Shaw conducted a warrant check that revealed that defendant had an outstanding warrant for arrest. The officers again contacted defendant about one block from the original contact and informed him of the warrant. When the officers attempted to take defendant into custody, he resisted by tightening his arms and grabbing Shaw’s finger. Shaw attempted a “hair hold takedown” to force defendant to the ground, but defendant, yelling and screaming, grabbed onto a light pole and refused to go to the ground. Defendant refused to comply with further instructions by the officers to “give me your hand” and “stop resisting.” Eventually, the officers, with the assistance of a private security guard, were able to take defendant into custody. Defendant was subsequently charged with one count of resisting arrest, and a jury convicted him.

[203]*203In order to address defendant’s second assignment of error, we must determine whether taking a person into custody for a parole violation constitutes an arrest for purposes of the resisting arrest statute, ORS 162.315. Accordingly, we must engage in our usual mode of statutory construction, considering the text, context, and any useful legislative history of the disputed statute in order to discern what the legislature intended. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

We begin with the applicable statutes. ORS 162.315 provides, in part:

“(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.
“(2) As used in this section:
“(a) ‘Arrest’ has the meaning given that term in ORS 133.005 and includes, but is not limited to, the booking process.
“(b) ‘Parole and probation officer’ has the meaning given that term in ORS 181.610.”

ORS 133.005 provides, in part, that,

“[a]s used in ORS 133.005 to 133.400 and 133.410 to 133.450, unless the context requires otherwise:
“(1) ‘Arrest’ means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. * * *”

Defendant contends that he could not be convicted for resisting arrest under ORS 162.315 because that statute applies only when a person is taken into custody for purposes of charging that person with an “offense” and, according to defendant, a parole violation is not an “offense” within the meaning of the statute. In short, defendant relies on the definition of “offense” in ORS 161.505 to contend that an “offense” is either a “crime” as defined in ORS 161.515 or a “violation” as described in ORS 153.008. Defendant reasons that, because a parole violation is neither a crime nor a violation, it is not an offense under ORS 133.005(1) and, therefore, taking a person into custody for a parole violation [204]*204is not taking a person into custody “for the purpose of charging that person with an offense.” Because the evidence at trial was that the officers were taking defendant into custody for a parole violation, defendant asserts that he was entitled to a judgment of acquittal.

The state does not argue that taking a person into custody under a warrant for a parole violation is an “arrest” as that term is defined in ORS 133.005(1); rather, it contends that the proper analysis of the resisting arrest statute in this case hinges on the phrase “unless the context requires otherwise” in ORS 133.005. That is, the state maintains that the operative context in this case {i.e., an arrest under a warrant for a parole violation), when viewed in light of statutes that make taking a person into custody for a parole violation an arrest, compels the conclusion that the legislature intended an arrest for a parole violation to qualify as an “arrest” under ORS 162.315.

We agree with defendant that a parole violation is not an offense as the term is used in ORS 133.005(1). However, we conclude that the statutory text, when considered in context and in light of the applicable legislative history, indicates that the legislature intended an arrest by a peace officer or a parole and probation officer for a parole violation to qualify as an arrest under the resisting arrest statute. The “unless the context requires otherwise” provision in ORS

Related

State v. McClure
335 P.3d 1260 (Oregon Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
300 P.3d 210, 256 Or. App. 200, 2013 WL 1682503, 2013 Ore. App. LEXIS 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcclure-orctapp-2013.