State v. Peterson

79 P.3d 315, 190 Or. App. 289, 2002 Ore. App. LEXIS 2122
CourtCourt of Appeals of Oregon
DecidedOctober 22, 2003
Docket0003-43639; A111107
StatusPublished
Cited by1 cases

This text of 79 P.3d 315 (State v. Peterson) 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. Peterson, 79 P.3d 315, 190 Or. App. 289, 2002 Ore. App. LEXIS 2122 (Or. Ct. App. 2003).

Opinion

OSBORNE, J.

pro tempore

Defendant appeals his convictions for resisting arrest, ORS 162.315, and harboring a runaway, former Portland City Code (PCC or code) 14.28.070 (1999).1 He assigns error to the trial court’s denial of his motions for judgment of acquittal with respect to each charge. We affirm.

“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 the essential elements of the crime proved beyond a reasonable doubt. The issue is not whether we believe defendant is guilty beyond a reasonable doubt, but whether there was sufficient evidence for a jury to so find.”

State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998) (citations omitted).

At the time of the incident giving rise to the charges in this case, defendant was the stepfather of a 17-year-old female who had been found to be within the jurisdiction of the juvenile court under ORS 419B. 100, who was in the legal custody of the Department of Human Services, and who had been placed in a residential program for girls in Portland. On March 16, 2000, defendant’s stepdaughter had been given leave to visit with her mother, defendant’s wife, from 3:00 p.m. to 6:30 p.m. at a local mall. Defendant’s stepdaughter did not return to the residential facility at 6:30 p.m., but called sometime thereafter to inform staff that she had gone to her mother’s house, where defendant also lived. Sometime after 7:30 p.m., Hughes, the residential program supervisor, reported the stepdaughter’s absence to police. Around 9:00 p.m., Hughes spoke with defendant’s stepdaughter by telephone and told her that she needed to return to the residential facility. Defendant’s stepdaughter told Hughes that she wanted to stay at her mother’s house and was not coming back to the facility. Both defendant and his wife testified that their plan was to return defendant’s stepdaughter to the facility the next morning.

[292]*292Police arrived at defendant’s house shortly after 10:00 p.m., and two officers went to the front porch. The officers could see into the house through a window on the porch and saw defendant, his wife, and his stepdaughter sitting in the living room, watching television. Officer Weber knocked on the door and informed defendant that his stepdaughter was a runaway and needed to leave with them. Defendant refused to open the door, and the officers called for back up. Officer Weber informed defendant that he was under arrest for harboring a runaway, but defendant did not allow the officers to enter for approximately ten minutes. At one point, defendant stated that he was not going to open the door and that police would have to break it down.

After another officer arrived with a means to forcibly open the door,2 defendant opened the door. Officer Weber testified that defendant then pulled up his arms into a boxing stance. Two officers grabbed defendant by the arms and took him to the front porch. Both officers testified that defendant struggled and that he reared his head at one of them, attempting to either “head butt” or bite the officer. Officer Weber placed defendant in a headlock, and eventually the two officers got defendant to the ground and handcuffed him.

Defendant was charged with resisting arrest and harboring a runaway.3 After the state’s presentation of its case-in-chief, defendant moved for a judgment of acquittal on each charge. The trial court denied the motions.

In his first assignment of error on appeal, defendant asserts that the state failed to prove that defendant “created a substantial risk of physical injury” as required by the definition of “resists” in ORS 162.315(2)(b). Defendant relies on State v. Hasan, 93 Or App 142, 144, 760 P2d 1377 (1988), which involved a 6'5", 300-pound officer and a 5'4", 102-pound female, for the proposition that defendant here was not capable of creating a substantial risk of physical [293]*293injury to the police officers. We disagree. Hasan involved factual circumstances not present here. In this case, there is evidence that it required two officers over a minute to subdue defendant and that he attempted to bite or head butt one of the officers. That is sufficient evidence to support the jury’s verdict. See State ex rel Juv. Dept. v. Stout, 107 Or App 233, 238, 811 P2d 660 (1991) (evidence sufficient where the child approached officer with fists raised); State v. Hutchinson, 94 Or App 441, 444, 444 n 2, 765 P2d 248 (1988) (evidence sufficient where the defendant was a very strong person, was difficult for the officer to control, and the officer required the assistance of another officer to subdue the defendant; distinguishing Hasan).

Defendant’s second assignment of error challenges the denial of his motion for judgment of acquittal on the charge of harboring a runaway under former PCC 14.28.070. He asserts that the state failed to establish harboring, which the code defines as providing lodging, because defendant did not provide overnight accommodation to his stepdaughter. The state responds that defendant failed to preserve that argument and that, even if he did preserve it, harboring can include the provision of temporary or short-term shelter.

We first consider the state’s contention that defendant failed to preserve the argument that he now advances. The state contends that, “[w]ith respect to the meaning of ‘harbor,’ defendant argued that the ordinance requires proof of hiding the child, in the sense of helping her to run away. Defendant now contends that harboring, defined as providing lodging, means provision of overnight accommodation.” The state is correct that defendant failed to advance the specific argument that he makes on appeal. However, in arguing his motion to the trial court, defendant stated that there was “no evidence that anyone harbored the child” and that “a reasonable conclusion is these people did not provide [defendant’s stepdaughter] shelter. [Defendant’s stepdaughter] provided a shelter herself by going there and refusing to leave.” By calling into question the meaning of the term “harbor” in former PCC 14.28.070, defendant preserved the “issue” of whether the state had established an element of the charged offense, namely, harboring. Defendant’s failure to advance the particular “argument” he now asserts on appeal [294]*294is less important.4 State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988); see also State v. Smith, 184 Or App 118, 121-22, 55 P3d 553 (2002).

Further, defendant’s argument implicates the construction of an ordinance, which arguably invokes the principle established by Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997), that “[i]n construing a statute, this court is responsible for identifying the correct interpretation, whether or not asserted by the parties.” More recently, the court has stated:

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Bluebook (online)
79 P.3d 315, 190 Or. App. 289, 2002 Ore. App. LEXIS 2122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-peterson-orctapp-2003.