218
Submitted on remand from the Oregon Supreme Court December 12, 2017,
affirmed October 23, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROSE IDA KOUNTZ,
Defendant-Appellant.
Multnomah County Circuit Court
120951044; A154677
452 P3d 993
On remand from the Supreme Court for reconsideration in light of the court’s
opinion in State v. Garcia, 361 Or 672,
399 P3d 444 (2017), the Court of Appeals
concluded that its earlier opinion in this case, State v. Kountz,
279 Or App 262,
379 P3d 664 (2016), vac’d and rem’d for recons,
362 Or 175,
406 P3d 612 (2017),
in which the court held that a person cannot be charged with interfering with a
police officer based on conduct that also constitutes resisting arrest, was incorrect under Garcia, and that the trial court therefore did not err in denying defendant’s motion for judgment of acquittal on the charge of interfering with a police
officer.
Affirmed.
On remand from the Oregon Supreme Court, State v.
Kountz, 362 Or 175,
406 P3d 612 (2017).
Stephen K. Bushong, Judge.
Peter Gartlan, Chief Defender, Elizabeth Dailey, Deputy
Public Defender, and Rond Chananudech, Deputy Public
Defender, Office of Public Defense Services, filed the briefs
for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce,
Solicitor General, and Peenesh H. Shah, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Egan, Chief Judge,
and Hadlock, Judge.
EGAN, C. J.
Affirmed.
Cite as 300 Or App 218 (2019) 219
EGAN, C. J.
This case is on remand from the Supreme Court
for reconsideration in light of the court’s opinion in State
v. Garcia, 361 Or 672,
399 P3d 444 (2017). In that case, the
defendant was charged with resisting arrest, ORS 162.315,
and two counts of interfering with a peace officer, ORS
162.247, based on the same conduct of preventing police from
arresting her boyfriend. ORS 162.247(3)(a), which defines
the offense of interfering with a peace officer, provides that
it “does not apply in situations in which the person is engaging in … [a]ctivity that would constitute resisting arrest
under ORS 162.315.” The defendant in Garcia moved for a
judgment of acquittal on the interfering counts, contending
that she could not be charged with an interfering offense
based on the same conduct giving rise to the resisting arrest
charge.
361 Or at 676. The state acknowledged that a person
could not be convicted of both offenses, but contended that
both offenses could be submitted to the jury. The trial court
denied the defendant’s motion, submitted both offenses to
the jury, and instructed the jury that, if it should find that
the defendant was guilty of resisting arrest, it must return
a verdict of not guilty as to the interfering counts relating to
the same conduct. The defendant was ultimately convicted
on one interfering charge but acquitted of the second interfering charge and the resisting charge.
Id. at 677.
On the defendant’s appeal in State v. Garcia, 278
Or App 639,
377 P3d 596 (2016), we held that a person cannot be charged with interfering with a peace officer for the
same conduct that also constitutes resisting arrest, and
we reversed the defendant’s conviction for interfering. The
Supreme Court reversed this court, holding that, as alternative charges based on the same conduct, a person can be
charged with both resisting arrest and interfering with a
peace officer, and that both offenses can be submitted to the
jury. The court further said that, to avoid conflicting convictions under ORS 162.247(3)(a), when both offenses are submitted to the jury and the defendant disputes the charges,
the jury should be instructed to address the resisting charge
first, and to consider the interference charge only if the jury
does not find the defendant guilty of resisting arrest. 361
220 State v. Kountz
Or at 687. The court reversed this court and reinstated the
judgment of conviction for interfering with a peace officer.
Id.
In this case, the procedural facts are slightly different. Based on the theory that defendant had interfered
with police by resisting the arrest of her son, defendant was
charged with interfering with a peace officer. She was not,
however, charged with resisting based on that conduct.1
Defendant sought a judgment of acquittal on the interfering
charge under ORS 162.247(3)(a), contending that the conduct on which the interfering charge was based would constitute resisting arrest, and the state therefore should not
be allowed to go forward. The trial court denied the motion,
and defendant was convicted.
On appeal, defendant challenged only her conviction for interfering, and her first assignment assigned error
to the denial of her motion for judgment of acquittal based
on ORS 162.247(3)(a) and to the failure to instruct the jury
that she could not be found guilty of interfering based on
conduct that would constitute resisting. We issued our opinion before the Supreme Court’s opinion in Garcia. State v.
Kountz, 279 Or App 262,
379 P3d 664 (2016). Citing our
opinion in Garcia, we agreed with defendant on her first
assignment that she could not be charged with interfering
based on conduct that could also constitute resisting, and
we reversed defendant’s interfering conviction.
279 Or App
at 266. Because we reversed defendant’s conviction for that
reason, we did not address defendant’s second assignment
of error, in which she contended that the trial court erred in
failing to give an instruction that a person cannot be convicted of interfering based on conduct that also constitutes
resisting.
Id. at 264.
Now, in light of the Supreme Court’s opinion in
Garcia, we conclude that we were incorrect in this case
in concluding that the court erred in denying defendant’s
motion for judgment of acquittal on the interfering charge.
Additionally, under Garcia, the trial court did not err in
1
Defendant was also charged with and convicted of resisting her own arrest.
This appeal does not concern that conviction.
Cite as 300 Or App 218 (2019) 221
denying defendant’s motion for an instruction that defendant could not be convicted of interfering for conduct that
also constituted resisting. Having reconsidered the case
in light of the Supreme Court’s opinion in Garcia, we now
reject both of defendant’s assignments of error and conclude
that defendant’s conviction for interfering with a peace officer must be affirmed.
Affirmed.
