Chapter 162

 

      Chapter 162

 

LAW REVIEW CITATIONS: 51 OLR 427-637 (1972)

 

      162.015

 

NOTES OF DECISIONS

 

      Legislature did not intend statute to apply to political contributions required by law to be reported. State v. Gyenes, 121 Or App 208, 855 P2d 642 (1993)

 

      162.035

 

NOTES OF DECISIONS

 

      Under Oregon’s Controlled Substances Act, which is substantial adoption of Uniform Controlled Substances Act, but which did not adopt crime of possession of controlled substance with intent to transfer, attempted transfer is punishable as completed transfer. State v. Boyd, 92 Or App 51, 756 P2d 1276 (1988), Sup Ct review denied

 

      162.055

 

NOTES OF DECISIONS

 

      Where defendant testified that he paid woman and that she signed satisfaction of judgment, his other testimony, such as where and how he got money, was material and sufficient to support perjury charge. State v. Ray, 36 Or App 375, 584 P2d 366 (1978), Sup Ct review denied

 

      Where defendant, in proceeding to terminate her parental rights, made false statement in regard to her use of drugs, these statements were not material under this section, where usage of drugs was not alleged in petition for grounds for termination. State v. Darnell, 49 Or App 461, 619 P2d 1321 (1980)

 

      To be sworn statement, oath or affirmation may be in any form having sufficient level of formality to impress maker with seriousness of act. State v. Carr, 319 Or 408, 877 P2d 1192 (1994)

 

      162.065

 

NOTES OF DECISIONS

 

      Where the defendant testified that he did not remember a fact about which he had previously made statements, the issue of whether the defendant knew and remembered such fact at the time of the testimony claimed to be perjured must, of necessity, be established by circumstantial evidence. State v. Shoemaker, 277 Or 55, 559 P2d 498 (1977)

 

      Where defendant’s allegedly false statement was made during hearing on motion to suppress and no evidence of contents of that motion or issues at the hearing were introduced, perjury conviction was reversed because there was insufficient evidence of materiality of statement. State v. Greenlaw, 49 Or App 15, 618 P2d 1291 (1980), as modified by 50 Or App 97, 622 P2d 325 (1980)

 

      Where defendant, in proceeding to terminate her parental rights, made false statements in regard to her use of drugs, these statements were not material where usage of drugs was not alleged in petition as grounds for termination and conviction for perjury was improper. State v. Darnell, 49 Or App 461, 619 P2d 1321 (1980)

 

      Where there was no specific statutory authority for administration of oath by Release Assistance Officer, defendant could not be convicted of perjury for false statements under oath administered by that official. State v. Flamer, 54 Or App 17, 633 P2d 860 (1981)

 

      There was sufficient evidence that defendant’s verifications on custody release questionnaire that information there was “true and complete” were in fact false, where defendant knew that he did not disclose complete criminal record. State v. Proctor, 92 Or App 557, 759 P2d 316 (1988)

 

      Because trial court administrator has express statutory authority to administer oaths and appoint deputies, and because court administrator acted within that authority in appointing release officer as deputy, defendant could be convicted of perjury for giving false information on oath administered by release officer so appointed. State v. Proctor, 92 Or App 557, 759 P2d 316 (1988)

 

      Defendant was wrongly convicted of perjury where state presented no evidence even remotely suggesting that defendant did not sincerely believe his statement. State v. Hayes, 116 Or App 287, 843 P2d 944 (1992)

 

      To prove perjury, state must show that defendant knew that statement was false, not that defendant was uncertain about truthfulness of statement. State v. Park, 120 Or App 294, 852 P2d 872 (1993), Sup Ct review denied

 

      Where defendant was not administered formal oath, but signed construction lien notice falsely attesting to knowledge and belief of facts asserted, defendant was guilty of perjury. State v. Carr, 125 Or App 270, 863 P2d 1316 (1993), aff’d 319 Or 408, 877 P2d 1192 (1994)

 

      Materially false statement is not perjury unless sworn to or affirmed before person authorized to take oaths or affirmations. Josephine County v. 1983 Chevrolet PU, 164 Or App 501, 992 P2d 947 (1999)

 

      162.085

 

NOTES OF DECISIONS

 

      It is not grant of unequal privileges or immunities under Article I, section 20 of the Oregon Constitution that prosecutor may choose between charging false statements under election laws (ORS 260.715) and unsworn falsification under this section. State v. Huntley, 82 Or App 350, 728 P2d 868 (1986), Sup Ct review denied

 

      Even though not convicted, finding that accused committed crimes of forgery, unsworn falsification and bigamy was sufficient to disbar attorney. In re Kirkman, 313 Or 181, 830 P2d 206 (1992)

 

      Statement filed as required to avoid detriment is not necessarily statement made in connection with application for benefit. American Federation of Teachers v. Oregon Taxpayers United, 208 Or App 350, 145 P3d 1111 (2006), on reconsideration209 Or App 518, 149 P3d 159 (2006), aff’d 345 Or 1, 189 P3d 9 (2008)

 

      “Application” for benefit includes submission to continue or renew existing benefit. American Federation of Teachers v. Oregon Taxpayers United, 208 Or App 350, 145 P3d 1111 (2006), on reconsideration 209 Or App 518, 149 P3d 159 (2006), aff’d 345 Or 1, 189 P3d 9 (2008)

 

      162.115

 

NOTES OF DECISIONS

 

      Where the defendant testified that he did not remember a fact about which he had previously made statements, the issue of whether the defendant knew and remembered such fact at the time of the testimony claimed to be perjured must, of necessity, be established by circumstantial evidence. State v. Shoemaker, 277 Or 55, 559 P2d 498 (1977)

 

      Testimony by single witness concerning statements by defendant could not be corroborated through testimony of same witness concerning other observations. State v. Real, 131 Or App 737, 886 P2d 501 (1994)

 

      162.135

 

NOTES OF DECISIONS

 

      The facts warranted submission to the jury the question whether defendant “escaped” within the meaning of this provision and a related provision, ORS 162.155, and not only a charge of attempt to escape, where defendant broke away and ran from a guard in courthouse parking lot and was caught only moments later, having never been more than 20 steps ahead of the guard. State v. Fitzgerald, 16 Or App 376, 518 P2d 678 (1974), Sup Ct review denied

 

      The State of Oregon had no jurisdiction over the Indian defendant for an escape which occurred solely and entirely upon the Warm Springs Reservation. State v. Smith, 277 Or 251, 560 P2d 1066 (1977)

 

      Definition of contraband is not unconstitutionally vague. State v. Williams, 37 Or App 419, 587 P2d 1049 (1978)

 

      Evidence, inter alia, that two grams of marijuana were prized possession likely to be subject of contention between inmates was insufficient to establish that item was “article or thing whose use would endanger safety and security” of county jail or any person in it. State v. Franklin, 283 Or 439, 583 P2d 557 (1978)

 

      Language of this section is broad enough to include marijuana as potentially being “contraband.” State v. Meyer, 283 Or 449, 583 P2d 553 (1978)

 

      Defendant, who fled when officer told her he had warrant for her arrest and wanted to talk with her about it, was not in “custody” at time of flight and did not commit “escape.” State v. Gleason, 94 Or App 208, 764 P2d 964 (1988)

 

      On remand, phrase “unlawful departure” in ORS 162.135 is not unconstitutionally vague since one can ascertain with reasonable degree of certainty when departure would be unlawful and when lawful. State v. McKenzie, 97 Or App 267, 775 P2d 907 (1989)

 

      Notwithstanding statutory definition of “custody,” as used in definition of “unauthorized departure,” custody includes detention in correctional facility. State v. Galligan, 312 Or 35, 816 P2d 601 (1991)

 

      Where defendant was cited for being minor in possession of alcohol and pulled away and ran when officers tried to take him to detoxification center, he was not in “custody” within meaning of this section. State v. McVay, 313 Or 292, 833 P2d 297 (1992)

 

      Pretrial release into home detention program without posting security or being released on own recognizance constitutes conditional release that cannot form basis of escape charge. State v. Wilde, 123 Or App 493, 862 P2d 105 (1993)

 

      As used in definition of unauthorized departure, “temporary release” means authorization for inmate to leave assigned quarters for particular purpose. State v. Manley, 326 Or 204, 951 P2d 686 (1997)

 

      Inclusion of article on list of items banned by statute, rule or order does not, by itself, satisfy independent requirement that use of article would endanger safety or security of institution or person. State v. Hernandez, 186 Or App 86, 61 P3d 951 (2003)

 

      For purposes of failure to appear statute (ORS 162.205), “custody” does not include constructive restraint by court. State v. Ford, 207 Or App 407, 142 P3d 107 (2006)

 

      Person fails to return after temporary release if person is not in custody when temporary release expires. State v. Elvig, 230 Or App 57, 213 P3d 851 (2009)

 

      When read with ORS 162.145, escape for purposes of escape in third degree occurs when person runs away from officer who lawfully asserted authority to control person’s freedom in course of carrying out arrest. State v. Davis, 360 Or 201, 377 P3d 583 (2016)

 

      162.145 to 162.165

 

NOTES OF DECISIONS

 

      Nonviolent flight from an attempted arrest is not criminal and thus evidence was insufficient to sustain escape charge where defendant was convicted of driving under influence of intoxicants and third degree escape. State v. Swanson, 34 Or App 59, 578 P2d 411 (1978)

 

      162.145

 

NOTES OF DECISIONS

 

      Indictment alleging that person other than defendant used physical force while aiding defendant’s escape did not allege elements of escape in first degree, but did sufficiently charge escape in third degree. State v. Snow, 77 Or App 317, 713 P2d 611 (1986)

 

      Defendant, who fled when officer told her he had warrant for her arrest and wanted to talk with her about it, was not in “custody” at time of flight and did not commit “escape.” State v. Gleason, 94 Or App 208, 764 P2d 964 (1988)

 

      Because defendant who ran when officers tried to take him to detoxification center was not in custody under ORS 162.135, defendant did not commit crime of escape in third degree. State v. McVay, 313 Or 292, 833 P2d 297 (1992)

 

      Where defendant ran away from police after defendant’s involvement in assault and police yelled, “Stop, police!,” defendant did not commit escape in third degree, when read with ORS 162.135, because yelling for defendant to stop running did not place defendant in custody. State v. Davis, 360 Or 201, 377 P3d 583 (2016)

 

      162.155

 

NOTES OF DECISIONS

 

      The facts warranted submission to the jury the question whether defendant “escaped” within the meaning of this provision and a related provision, ORS 162.135, and not only a charge of attempt to escape, where defendant broke away and ran from a guard in courthouse parking lot and was caught only moments later, having never been more than 20 steps ahead of the guard. State v. Fitzgerald, 16 Or App 376, 518 P2d 678 (1974), Sup Ct review denied

 

      The State of Oregon had no jurisdiction over the Indian defendant for an escape which occurred solely and entirely upon the Warm Springs Reservation. State v. Smith, 277 Or 251, 560 P2d 1066 (1977)

 

      Where defendant who escaped from confinement in work camp located in Tillamook County, was charged with escape under this section, venue was proper only in that county so prosecuting defendant in Marion County, where he had been confined prior to transfer, was improper. State v. Dillenburg, 49 Or App 911, 621 P2d 1193 (1980)

 

      Custody is “result” of conviction or finding of guilt if person has been placed in actual or constructive restraint of police officer, and not within correctional facility, following finding of guilt and remand to custody of officer or agency or following judgment of conviction and order of commitment to correctional facility. State v. Palaia, 289 Or 463, 614 P2d 1120 (1980)

 

      Program from which defendant escaped qualified as “work release program” and defendant was in constructive custody of Multnomah County jail, a correctional facility. State v. Scott, 94 Or App 250, 764 P2d 976 (1988)

 

      Defendant was guilty of escape in second degree when defendant failed to comply with terms of inmate furlough program including requirements that defendant return to sister’s home each evening and maintain phone contact with sheriff’s department. State v. Sasser, 104 Or App 251, 799 P2d 1146 (1990), Sup Ct review denied

 

      Where defendant was in custody at time jury rendered guilty verdict and court received verdict, custody status of defendant was result of guilty verdict even though court did not expressly remand defendant. State v. McCauley, 119 Or App 384, 851 P2d 608 (1993), Sup Ct review denied

 

      Where home detention qualified as conditional release, failure to comply with terms was not escape. State v. Wilde, 123 Or App 493, 862 P2d 105 (1993)

 

      Unauthorized departure from court-ordered home detention constituted escape from correctional facility. State v. Esmond, 125 Or App 613, 866 P2d 494 (1994)

 

      Where defendant escaping from outside site was under uninterrupted supervision of correctional facility employee, escape was from constructive confinement in correctional facility rather than from custody. State v. Croghan, 162 Or App 251, 986 P2d 579 (1999), Sup Ct review denied

 

      “Escaping from custody” means that person subject to actual or constructive restraint or control by peace officer sets out on course of action that results, even momentarily, in person no longer being within officer’s restraint or control. State v. Metcalfe, 172 Or App 501, 19 P3d 374 (2001)

 

      Where deputy sheriff was present in courtroom, order reducing defendant to custody of deputy sheriff made courtroom correctional facility. State v. Lane, 341 Or 433, 144 P3d 927 (2006)

 

      Act of escaping is complete at time person departs from actual or constructive restraint by peace officer. State v. Lonergan, 344 Or 15, 176 P3d 374 (2008)

 

      For purpose of determining whether person used or threatened to use physical force to escape custody, person is in custody when peace officer has actually or constructively restrained person for purpose of charging person with offense. State v. Alexander, 238 Or App 597, 243 P3d 476 (2010), Sup Ct review denied

 

      Escape from custody imposed as result of post-prison supervision violation after defendant served sentence of incarceration is not escape from custody “imposed as a result” of felony conviction within meaning of this section. State v. Patterson, 269 Or App 885, 346 P3d 614 (2015)

 

      162.165

 

NOTES OF DECISIONS

 

      Legislature did not intend that assault during escape attempt could be punished as both attempted first degree escape and first degree assault. State v. Fitzgerald, 14 Or App 361, 513 P2d 817 (1973)

 

      State is not required to elect between escape and assault charges prior to verdict. State v. Tron, 39 Or App 603, 592 P2d 1094 (1979)

 

      One may not be convicted of both escape in first degree and assault when assault is part and parcel of escape. State v. Wigget, 75 Or App 474, 707 P2d 101 (1985)

 

      Indictment alleging that person other than defendant used physical force while aiding defendant’s escape did not allege elements of escape in first degree, but did sufficiently charge escape in third degree. State v. Snow, 77 Or App 317, 713 P2d 611 (1986)

 

      162.175

 

NOTES OF DECISIONS

 

      Person may be charged under this section for failure to return to custody after temporary release from a correctional facility. State v. Galligan, 312 Or 35, 816 P2d 601 (1991)

 

      Where correctional facility is local facility, person who fails to return after authorized attendance at off-premises treatment program commits crime of unauthorized departure, not escape. State v. Manley, 326 Or 204, 951 P2d 686 (1997)

 

      Person fails to return after temporary release if person is not in custody when temporary release expires. State v. Elvig, 230 Or App 57, 213 P3d 851 (2009)

 

      162.185

 

NOTES OF DECISIONS

 

      Evidence, inter alia, that two grams of marijuana were prized possession likely to be subject of contention between jail inmates was insufficient to establish that marijuana was “contraband” within meaning of this section. State v. Franklin, 283 Or 439, 583 P2d 557 (1978)

 

      Information alleging that jail inmate possessed marijuana was sufficient to charge violation of this section. State v. Meyer, 283 Or 449, 583 P2d 553 (1978)

 

      Legislative declaration that contraband “means any article or thing...whose use would endanger the safety and security” of correctional and juvenile facilities and state hospital, as well as persons in those institutions, is constitutionally sufficient directive to state and local agencies given power to issue rules and orders defining contraband. State v. Long, 110 Or App 599, 823 P2d 1031 (1992), aff’d 315 Or 95, 843 P2d 420 (1992)

 

      Where defendant does not control act of introducing contraband into correctional facility, defendant’s voluntary acts resulting in unknowing introduction of contraband by another do not create liability. State v. Getzinger, 189 Or App 431, 76 P3d 148 (2003)

 

      162.195

 

NOTES OF DECISIONS

 

      While trial court did not err in entering separate convictions for violation of each release agreement requiring appearance on specified date, defendant could be sentenced only for one crime. State v. Eastman, 112 Or App 256, 828 P2d 484 (1992)

 

      “Release agreement” has meaning given in ORS 135.230 and applies only to time period before entry of judgment or during appeal. State v. Tally, 184 Or App 715, 57 P3d 592 (2002)

 

      Place of confinement of defendant prior to release under release agreement or security release is not material element of offense. State v. Duvall, 187 Or App 316, 67 P3d 424 (2003)

 

      Where person failed to appear at hearing in connection with diversion agreement that suspended offense proceeding, failure was in connection with charge against person. State v. McCoin, 193 Or App 623, 91 P3d 760 (2004)

 

      Where multiple offenses are covered by single release agreement, failure to appear is single violation. State v. Camarena-Velasco, 207 Or App 19, 139 P3d 979 (2006)

 

      Defendant, who was released on security release but without evidence of sworn writing in release agreement to appear, may be convicted for second-degree failure to appear. State v. Taylor, 258 Or App 737, 311 P3d 953 (2013), Sup Ct review denied

 

      162.205

 

NOTES OF DECISIONS

 

      Evidence of defendant’s whereabouts one month following his failure to appear was properly admitted. State v. Sims, 23 Or App 438, 543 P2d 300 (1975)

 

      Where court properly considered criminal and crime, sentence within maximum was not excessive, cruel or unusual. State v. Bilton, 36 Or App 513, 585 P2d 50 (1978)

 

      Where defendant violated parole from Washington burglary conviction and failed to appear at Oregon extradition proceeding, he was properly convicted of failure to appear in connection with Washington burglary charge. State v. Beirley, 46 Or App 73, 610 P2d 1233 (1980)

 

      Argument that court should have granted defendant’s motion for judgment of acquittal because to “appear personally in connection with a charge against him” does not mean that defendant must make himself available for incarceration by remaining in courtroom is without merit. State v. Johnson, 66 Or App 123, 672 P2d 1249 (1983)

 

      Where, under release agreement, defendant agreed to appear and answer charges in circuit court on dates and times “to be set” and voluntarily failed to appear on last day of trial, his violation of release agreement was not excused by his presence on other days of trial. State v. Phillips, 84 Or App 316, 734 P2d 4 (1987), Sup Ct review denied

 

      Mistaken belief concerning necessity for appearance was relevant to issue of intent to not appear. State v. Ross, 123 Or App 264, 859 P2d 569 (1993)

 

      “Custody” does not include constructive restraint by court. State v. Ford, 207 Or App 407, 142 P3d 107 (2006)

 

      Where defendant is released from custody under release agreement, defendant may be convicted for failure to appear as required by agreement regardless of whether defendant remains entitled to release on date of alleged failure. State v. Crawford, 208 Or App 340, 144 P3d 1073 (2006)

 

      162.225

 

NOTES OF DECISIONS

 

      For purposes of ORS 162.295 and 162.325, “physical evidence” means item of physical substance that has at least some plausible, nonspeculative relationship to factual matter to be determined in pending or immediately impending official proceeding. State v. Martine, 277 Or App 360, 371 P3d 510 (2016)

 

      162.235

 

NOTES OF DECISIONS

 

      Instruction that “intimidation” means “intentionally placing another in fear by threats to commit a crime”, was in language of this section and proper. State v. Mattila, 77 Or App 219, 712 P2d 832 (1986), Sup Ct review denied

 

      Mere refusal to cooperate with law enforcement officers unaccompanied by one of four statutorily prohibited means of obstruction is not criminal act. Papst v. Bay, 354 F. Supp. 2d 1175 (D. Or. 2005)

 

      Violation through “physical interference or obstacle” requires that person engage in taking action that results in bodily or material obstruction to government activity or process. State v. Gaines, 346 Or 160, 206 P3d 1042 (2009)

 

      162.247

 

NOTES OF DECISIONS

 

      Speech alone does not constitute acting in manner that prevents or attempts to prevent peace officer from performing duty. State v. Lam, 176 Or App 149, 29 P3d 1206 (2001)

 

      “Lawful order” is not unconstitutionally vague term. State v. Andre, 178 Or App 566, 38 P3d 949 (2002)

 

      Prohibition against refusing to obey lawful order is not facially overbroad violation of constitutional right of free speech or freedom of assembly. State v. Illig-Renn, 341 Or 228, 142 P3d 62 (2006)

 

      Prohibition against refusing to obey lawful order is not facially vague, vague for conferring uncontrolled discretion to punish or vague for failure to give fair warning. State v. Illig-Renn, 341 Or 228, 142 P3d 62 (2006)

 

      Unlawful police conduct in initiating encounter does not prevent order issued during encounter from being lawful order. State v. Neill, 216 Or App 499, 173 P3d 1262 (2007), Sup Ct review denied

 

      To commit crime of interfering with peace officer or parole and probation officer, person does not need to have culpable mental state with respect to lawfulness of police order. State v. Ruggles, 238 Or App 86, 242 P3d 643 (2010), Sup Ct review denied

 

      Defendant, who did not obey officers’ commands but instead ignored officers and continued working on vehicle, was not “engaging in passive resistance,” which means engaging in acts or techniques of noncooperation commonly associated with government protest or civil disobedience. State v. Patnesky, 265 Or App 356, 335 P3d 331 (2014)

 

      Refusal to obey officer’s lawful order requires defendant to consciously intend to disobey officer’s lawful order, not merely fail to disobey order. State v. Enyeart, 266 Or App 763, 340 P3d 57 (2014)

 

      “Passive resistance” means noncooperation for any reason with lawful order of peace officer in manner that does not involve violence or active measures. State v. McNally, 361 Or 314, 392 P3d 721 (2017); State v. Washington, 286 Or App 650, 401 P3d 297 (2017)

 

      State may bring alternative charges of resisting arrest and interfering with peace officer against defendant based on same acts but may not convict defendant of both resisting arrest and interfering with peace officer. State v. Garcia, 361 Or 672, 399 P3d 444 (2017)

 

      When state brings alternative charges of resisting arrest and interfering with peace officer against defendant based on same acts, trial court should submit both charges to jury with appropriate instruction or verdict form. State v. Garcia, 361 Or 672, 399 P3d 444 (2017)

 

      162.257

 

NOTES OF DECISIONS

 

      Speech alone does not constitute acting in manner that prevents or attempts to prevent firefighter or emergency medical services provider from performing duty. DeNucci v. Henningsen, 248 Or App 59, 273 P3d 148 (2012)

 

      162.285

 

NOTES OF DECISIONS

 

      Inducing witness to elude service of legal summons is not witness tampering. State v. Wagner, 67 Or App 75, 676 P2d 937 (1984)

 

      Inducement or attempted inducement of witness to be absent from official proceeding does not constitute tampering with witness unless witness has been officially summoned at time inducement or attempted inducement is made. State v. Martin, 95 Or App 170, 769 P2d 203 (1989)

 

      “Any official proceeding” includes potential future proceedings. State v. Bailey, 219 Or App 526, 183 P3d 232 (2008), aff’d 346 Or 551, 213 P3d 1240 (2009)

 

      Person may be “witness” whether or not person has testified or has been subpoened to testify. State v. Bryan, 221 Or App 455, 190 P3d 470 (2008), Sup Ct review denied

 

      Where defendant was found guilty of witness tampering based on letter defendant sent to defendant’s mother encouraging mother and brother either to not testify against defendant or to change their stories, guilty verdicts merge under ORS 161.067 because violations of two different paragraphs of this section do not constitute violations of separate statutory provisions. State v. Jenkins, 280 Or App 691, 383 P3d 395 (2016), Sup Ct review denied

 

      Evidence that defendant reasonably believed that complainant would be called to testify at future official proceeding is not sufficient to show that defendant was attempting to induce complainant to give false testimony at proceeding. State v. Ortiz-Saldana, 288 Or App 230, 406 P3d 61 (2017)

 

      162.295

 

NOTES OF DECISIONS

 

      Defendant, who damaged own property but filed police report alleging that defendant’s ex-boyfriend damaged property on day before scheduled hearing to continue defendant’s restraining order against ex-boyfriend, cannot be convicted under this section. State’s inference that defendant destroyed property with hope that ex-boyfriend would be cited with contempt of restraining order does not amount to defendant having knowledge that official proceeding regarding contempt citation is about to be instituted, as required by this section. State v. Austin, 265 Or App 140, 333 P3d 1224 (2014)

 

      Evidence that defendant knew that defendant was under arrest was sufficient to permit reasonable inference that defendant swallowed marijuana with “knowledge” that official proceeding was about to be instituted. State v. Jacobs, 276 Or App 453, 369 P3d 82 (2016)

 

      162.305

 

ATTY. GEN. OPINIONS: Change of names in public records, (1977) Vol 38, p 945

 

      162.315

 

NOTES OF DECISIONS

 

      Language of this section includes resisting arrest of another person, as well as resisting one’s own arrest. State v. Brandon, 35 Or App 661, 582 P2d 52 (1978), Sup Ct review denied

 

      This section is not unconstitutionally vague or overbroad. State v. Crane, 46 Or App 547, 612 P2d 735 (1980), Sup Ct review denied

 

      Though this section defines “resist” in alternative forms, complaint charging defendant with resisting arrest in language of statute was sufficiently specific to survive demurrer. State v. Strandquist, 57 Or App 404, 644 P2d 658 (1982), Sup Ct review denied

 

      Where arrested defendant’s thrashing about was intended to help others resist her arrest, trial court did not err in denying defendant’s motion for judgment of acquittal on resisting arrest charge. State v. Hasan, 93 Or App 142, 760 P2d 1377 (1988)

 

      Trial court properly denied motion for judgment of acquittal where evidence was sufficient for jury to find defendant’s conduct was not passive but posed substantial risk of injury to others. State v. Hutchinson, 94 Or App 441, 765 P2d 248 (1988)

 

      Former version of this section encompasses resistance both at precise moment one is placed under arrest and while en route to police station for booking. State v. Bolden, 104 Or App 356, 801 P2d 863 (1990), Sup Ct review denied

 

      Specific exclusion of passive resistance from scope of statute prohibits local ordinance against hindering police officer by failing to leave area when given lawful order. City of Eugene v. Kruk, 128 Or App 415, 875 P2d 1190 (1994)

 

      Passive resistance provision preempts local ordinance from enforcing police order to disperse. City of Portland v. Roth, 130 Or App 179, 880 P2d 967 (1994), Sup Ct review denied

 

      Elements of offense are established by exertion of resistance in general without regard to what resistance is exerted against individual officers. State v. Owens, 159 Or App 80, 979 P2d 284 (1999), Sup Ct review denied

 

      To constitute resisting arrest, behavior must be intended to resist custodial status. State v. Powell, 209 Or App 255, 147 P3d 933 (2006)

 

      “Arrest” includes being taken into custody for violating parole. State v. McClure, 256 Or App 200, 300 P3d 210 (2013), aff’d 355 Or 704, 335 P3d 1260 (2014)

 

      Where defendant did not know defendant was under arrest, defendant could not resist arrest because this section requires defendant to act intentionally to resist arrest and such conscious objective requires knowledge of arrest. State v. Olive, 259 Or App 104, 312 P3d 588 (2013)

 

      As used in this section, “resisting arrest” means resisting “actual or constructive restraint” whether or not that restraint is for purpose of charging person with offense. State v. McClure, 355 Or 704, 335 P3d 1260 (2014)

 

      162.325

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 161.230)

 

      Where court may punish crime committed by principal either as felony or by imposing lesser punishment resulting in classification as misdemeanor, election to punish as misdemeanor does not affect status of person charged with hindering prosecution. State v. Shay, 8 Or App 360, 493 P2d 737 (1972), Sup Ct review denied

 

      The mere denial of knowledge of whereabouts of offender did not amount to accessorial conduct; there must also have been evidence from which jury could infer that actor told lie with intent to aid offender and that lie was, under existing circumstances, likely to aid offender to escape arrest or punishment. State v. Clifford, 263 Or 436, 502 P2d 1371 (1972)

 

In general

 

      Information, which merely alleged that defendant had hindered prosecution by withholding eyewitness testimony in order to protect himself, was insufficient to charge defendant under this section, and thus arrest warrant on hindering prosecution charge was invalidly issued. State v. Christian, 35 Or App 339, 581 P2d 132 (1978), Sup Ct review denied

 

      Person suspected of crime who fails to turn himself in is not therefore subject to prosecution under this section for hindering his own prosecution. State v. Christian, 35 Or App 339, 581 P2d 132 (1978), Sup Ct review denied

 

      Where police went to defendant’s residence to arrest robbery suspect allegedly staying there, defendant produced no identification but gave alias used by suspect, and police took defendant into custody pursuant to arrest warrant but were uncertain as to whether she was in fact the suspect, police had probable cause to conduct search to determine if suspect named in warrant was within residence; thus, evidence resulting from search, i.e., suspect whom defendant was charged under this section with concealing, was admissible. State v. Jordan, 36 Or App 45, 583 P2d 1161 (1978), aff’d 288 Or 391, 605 P2d 646 (1980)

 

      Defendant’s denials, which hindered his co-defendant’s prosecution but served his own interest against self-incrimination, could not form the basis for conviction for hindering prosecution. State v. Pugh, 55 Or App 305, 637 P2d 1325 (1981)

 

      Juvenile whose prosecution is hindered may commit “crime” punishable as felony regardless of whether juvenile is subject to criminal prosecution, conviction or punishment. State ex rel Juvenile Dept. v. Fitch, 192 Or App 56, 84 P3d 190 (2004), Sup Ct review denied

 

      Act of omission in failing to respond to inquiries by law enforcement authorities may constitute harboring or concealing of fugitive. State v. Turley, 202 Or App 40, 120 P3d 1229 (2005), Sup Ct review denied; distinguished in State v. Hutchins, 281 Or App 495, 383 P3d 399 (2016)

 

      Where concealment, alteration or destruction of physical evidence does not affect discovery or apprehension of person, but may prevent discovery that person has committed crime, then concealment, alteration or destruction does not constitute hindering prosecution. State v. Werdell, 340 Or 590, 136 P3d 17 (2006)

 

      Person commits crime of hindering prosecution if person hinders apprehension of juvenile where juvenile conduct constitutes crime punishable as felony in criminal proceeding. State v. McCullough, 347 Or 350, 220 P3d 1182 (2009)

 

      To prove that defendant hindered prosecution by “conceal[ing]” a “person” under subsection (1)(a) of this section, state must present evidence from which jury could reasonably conclude that defendant concealed that person’s physical presence and something more than attempting to obscure that person’s identity through deception; therefore, where defendant and another person both spoke to law enforcement officers from inside building and defendant subsequently failed to provide officers with information about identity of other person or to open door, state did not present sufficient evidence that defendant concealed person who was a fugitive. State v. Hutchins, 281 Or App 495, 383 P3d 399 (2016)

 

      Because guest who is sheltered and received by owner or occupant of property cannot, by same action, shelter and receive host, guest cannot harbor fugitive-host under this section; thus, jury could not permissibly find that defendant harbored fugitive under this section where defendant was guest in shed that was fugitive’s own abode. State v. Hutchins, 281 Or App 495, 383 P3d 399 (2016)

 

      Defendant’s lies regarding ever knowing criminal, going with criminal to property where criminal was hiding and ever seeing anyone (including criminal) flee from garage could reasonably constitute concealing criminal’s physical presence. State v. Carpenter, 287 Or App 720, 404 P3d 1135 (2017), Sup Ct review allowed

 

      162.375

 

NOTES OF DECISIONS

 

      Initiating false report requires supplying false information at time incident is initially reported. State v. McCrorey, 216 Or App 301, 172 P3d 271 (2007)

 

      Evidence in record that showed that youth repeatedly and falsely asserted to police detective that youth had been kidnapped was sufficient to support that youth “knowingly initiated a false report” under this section. State v. J.L.S., 268 Or App 829, 343 P3d 670 (2015)

 

      Where defendant did not begin police report but where evidence showed that defendant acted in concert with other person and simultaneously participated in making false report of hit-and-run accident to police officer, each person could commit crime of initiating false report under this section. State v. Velasquez, 286 Or App 400, 400 P3d 1018 (2017)

 

      In context of questioning initiated by law enforcement, if person falsely alleges new circumstances to which law enforcement agency is reasonably likely to respond as current separate crime or emergency about which person is being questioned, person “initiates a false alarm or report” within meaning of this section. State v. Branch, 362 Or 351, 408 P3d 1035 (2018)

 

      162.385

 

NOTES OF DECISIONS

 

      Defendant must act with knowledge that police officer requested identification for purpose of issuing citation. State v. Jaha, 118 Or App 497, 848 P2d 622 (1993)

 

      162.405

 

COMPLETED CITATIONS: State v. Johnson, 6 Or App 195, 487 P2d 115 (1971), Sup Ct review denied

 

      162.415

 

NOTES OF DECISIONS

 

      This section does not require, for criminal culpability, that personal benefit flow to public employe, but it is sufficient that employe act with intent to grant benefit to third party. State v. Rodda, 56 Or App 580, 642 P2d 364 (1982), Sup Ct review denied

 

      “Unauthorized exercise in official duties” requires that public servant be acting in official capacity and must knowingly perform act that is abuse of powers, responsibilities or opportunities of office while in that capacity. State v. Florea, 296 Or 500, 677 P2d 698 (1984); State v. Davis, 189 Or App 436, 76 P3d 144 (2003)

 

      Benefit under this section includes personal sexual gratification. State v. Moffitt, 104 Or App 340, 801 P2d 855 (1990)

 

COMPLETED CITATIONS: State v. Johnson, 6 Or App 195, 487 P2d 115 (1971), Sup Ct review denied