State v. Wootten

                                    697

 Submitted June 5; conviction for second-degree disorderly conduct reversed,
                     otherwise affirmed August 5, 2020


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 RYAN EDWARD WOOTTEN,
                     Defendant-Appellant.
                Clackamas County Circuit Court
                     17CR19292; A170109
                                

   Heather Karabeika, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Conviction for second-degree disorderly conduct reversed;
otherwise affirmed.
698                                                  State v. Wootten

          PER CURIAM
         Defendant was convicted of one count of second-degree disorderly conduct under ORS 166.025(1)(c), which
makes it a crime under certain circumstances to “[d]isturb[ ]
any lawful assembly of persons without lawful authority.”
On appeal, defendant argues that the trial court erred in
denying his motion for a judgment of acquittal on that count,
because there is no evidence that his actions disturbed more
than one person, let alone an “assembly of persons.” The
state concedes the error, and, as explained below, we accept
the concession and reverse.
         Defendant was charged with various offenses after
an incident on a MAX platform in which defendant, while
intoxicated, bumped into a woman, refused to apologize,
and then began cursing and screaming.1 One of the counts
charged second-degree disorderly conduct under ORS
166.025(1)(c), which provides that a person “commits the
crime of disorderly conduct in the second degree if, with
intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, the person: … [d]isturbs
any lawful assembly of persons without lawful authority.”
         After the state presented its case, defendant moved
for a judgment of acquittal, pointing out the state’s failure to
produce evidence that there was any “assembly of persons”
at the MAX station at the time of the incident or that those
persons were disturbed. Defendant argued:
       “We have evidence that he bumped into one person. I
   think on its face, the Court can find that is not unlawful
   [sic] assembly of persons. We have not heard testimony
   from a witness that people were alarmed, or somehow disturbed, or that the train was delayed.”
        In response to the motion, the state acknowledged
that there was a lack of witness testimony about who was
nearby at the time of the incident but suggested that it was
nonetheless reasonable to infer that people were assembled
on the MAX platform, based on the nature of the station,
the time of night (around 10:00 p.m.), and the evidence that

   1
     Defendant was charged with other offenses as well, but the trial court
granted his motion for a judgment of acquittal on those counts.
Cite as 

 (2020)                            699

multiple officers were policing the station. The trial court
denied defendant’s motion, and he was ultimately convicted
of second-degree disorderly conduct.
         On appeal, defendant argues that the plain text of
ORS 166.025(1)(c) requires disturbing an assembly of persons, plural, and that the state failed to prove that anyone
was disturbed other than the woman defendant bumped
into. The state concedes that the record “sufficed to permit a
reasonable trier of fact to find that defendant disturbed, at
most, only one person, the woman he bumped into,” whereas
an “ ‘assembly’ requires more than one person” under ORS
166.025(1)(c). We agree with the state’s concession. The statute requires that the state prove both that there was an
assembly of persons and that the assembly was disturbed.
Nothing in this record gives rise to a nonspeculative inference that there was an assembly of persons, or that anyone
other than a single person—as opposed to an assembly—was
disturbed by defendant’s conduct. Thus, the trial court erred
in failing to grant his motion for a judgment of acquittal.
        Conviction for second-degree disorderly conduct
reversed; otherwise affirmed.