State v. Swartz

                                       93

Submitted November 26, 2019, affirmed January 29, petition for review denied
                        June 4, 2020 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      DENNIS RAY SWARTZ,
                       Defendant-Appellant.
                    Douglas County Circuit Court
                       16CR38702; A167696
                                   

    Defendant was convicted of one count of interfering with a peace officer
(IPO), ORS 162.247. On appeal, he argues that the trial court plainly erred in
finding him guilty and convicting him, because his conduct constituted “passive
resistance” under ORS 162.247(3)(b), as interpreted in State v. McNally, 

, 

 (2017), such that the evidence was legally insufficient to support
the conviction. Defendant argues that the only evidence was that, when a deputy
ordered him to stop, he passively continued walking and, in the deputy’s words,
“ignored” the order. Held: The trial court did not plainly err. Under the standard
articulated in McNally, it is not obvious and is reasonably in dispute that a person who continues walking after being ordered to stop may—let alone must—be
engaged in “passive resistance” for purposes of ORS 162.247.
    Affirmed.



    Frances Elaine Burge, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
   Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
    AOYAGI, J.
    Affirmed.
94                                                          State v. Swartz

           AOYAGI, J.
          Defendant was convicted of one count of interfering with a peace officer (IPO), ORS 162.247. On appeal,
he argues that the trial court plainly erred in finding him
guilty and convicting him, because his conduct constituted
“passive resistance” under ORS 162.247(3)(b), as interpreted
in State v. McNally, 

, 

 (2017), such
that the evidence was legally insufficient to support the conviction.1 We affirm.
         The relevant facts are undisputed for purposes of
appeal. One afternoon, a Douglas County sheriff’s deputy
received a report that defendant was driving with a suspended license and had failed to signal before turning into
a parking lot. The deputy was nearby and arrived at the
parking lot within seconds. He saw defendant walking away
from the driver’s side of a pickup truck and toward an alley
that goes behind an “RV store.” Believing that he had probable cause to stop defendant for traffic violations, the deputy
activated the overhead lights on his marked patrol car and
drove into the alley, following directly behind defendant.
Defendant turned, saw him, and continued walking. The
deputy exited his vehicle and yelled for defendant to stop.
According to the deputy, defendant “ignored [his] command
to stop and continued walking away from [him] towards the
back door of the RV store” and into the RV store. Given defendant’s “noncompliance,” the deputy entered the RV store and
directed defendant to come outside. Defendant argued about
coming outside, until an off-duty deputy arrived and the two
deputies put defendant in an escort hold and walked him
outside. Defendant was subsequently charged with IPO.
           As relevant here, a person commits the crime of IPO
“if the person, knowing that another person is a peace officer[,] … [r]efuses to obey a lawful order by the peace officer,” ORS 162.247(1), except “in situations in which the person is engaging in … [p]assive resistance,” ORS 162.247
(3)(b). The Supreme Court recently construed the “passive
resistance” exception to IPO in McNally.

   1
     Separately, defendant assigns error to the trial court’s imposition of a $100
misdemeanor fine. We reject that assignment of error without written discussion.
Cite as 

 (2020)                                  95

          In McNally, the defendant refused to comply with
a police officer’s order to leave a bus station and verbally
insisted that the officer “couldn’t make him leave.” 

. The defendant was charged with IPO and, at trial,
asked the court to instruct the jury on “passive resistance.”

. The court declined to do so, and, on appeal, we
affirmed, relying on a narrow construction of the term
“passive resistance.” 

. On review, the Supreme
Court reversed, construing “passive resistance” to mean
any “noncooperation with a lawful order of a peace officer
that does not involve active conduct.” 

. “Because
there was evidence in the record that defendant engaged in
inactive, nonviolent noncooperation when the police officer
ordered him to leave the bus station,” the trial court should
have given the “passive resistance” instruction. 

 In distinguishing between “active” and “passive” resistance, the
court noted that “a person who runs away when lawfully
ordered by a peace officer to stop” would be “actively, physically, refus[ing] to obey” an order, not passively resisting. 

.
        Defendant relies on McNally to argue that the evidence was insufficient to find him guilty and convict him
of IPO. He argues that the only evidence was that, when
the deputy ordered him to stop, defendant passively continued walking, as he was already doing, and, in the deputy’s
words, “ignored” the order. Defendant emphasizes that,
unlike the hypothetical runner in McNally, he was already
walking and simply continued doing so. In response, the
state argues that walking is “active” and therefore cannot
constitute passive resistance, regardless of whether the person starts walking before or after an officer orders him to
stop.
         An unpreserved claim of error is susceptible to
plain-error review only if the alleged error is an error of law;
is “obvious, not reasonably in dispute”; and appears on the
record. State v. Corkill, 

, 

,
rev den, 

 (2014). Under McNally, it is obvious and
not reasonably in dispute that a person who fails to move
when ordered to move (like the defendant in McNally) may
be engaged in “passive resistance” within the meaning of
ORS 162.247(3)(b), and, conversely, a person who runs away
96                                           State v. Swartz

after being ordered to stop (like the hypothetical runner in
McNally) is not engaged in “passive resistance.” See McNally,

. But it is not obvious and is reasonably in
dispute that a person who is already walking and continues
walking after being ordered to stop may be—let alone necessarily is (as defendant argues here)—engaged in “passive
resistance.” Any error therefore is not plain.
        Affirmed.