State v. Evans

                                     523

  Submitted December 15, 2020; conviction for interfering with a peace officer
    reversed and remanded, remanded for resentencing, otherwise affirmed
                             January 13, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   LANCE WILLIAM EVANS,
                     Defendant-Appellant.
                  Umatilla County Circuit Court
                     19CR06797; A170828
                                 

   Gregory L. Baxter, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Conviction for interfering with a peace officer reversed and
remanded; remanded for resentencing; otherwise affirmed.
524                                             State v. Evans

        PER CURIAM
         Defendant appeals a judgment of conviction for
interfering with a peace officer, ORS 162.247, and harassment, ORS 166.065. He argues that the trial court plainly
erred in failing to acquit him on the charge of interfering
with a peace officer. We reject that argument without discussion. He also argues that the trial court plainly erred in
instructing the jury on the interfering with a peace officer
charge based on a different theory of the offense than that
alleged in the indictment. The state concedes that the court
plainly erred in that regard.
           A person can commit the offense of interfering with
a peace officer either by preventing or attempting to prevent the officer from performing lawful duties, or by refusing to obey a lawful order of the peace officer. ORS 162.247
(1)(a), (b). The indictment in this case alleged the latter theory of the offense, and the evidence and legal arguments
concerned that theory. The jury was not instructed on that
theory, but instead was instructed on the theory concerning preventing or attempting to prevent an officer from performing lawful duties. As we have previously held, a trial
court errs in instructing a jury in a manner that creates a
material variance with what was alleged in the indictment.
See, e.g., State v. Burk, 

, 

(2016) (citing cases in which jury was instructed in a manner that varied from indictment). Although such errors are
not necessarily always prejudicial, in this case, defendant’s
argument that the jury instruction was not only erroneous
but harmful is well-taken. Accordingly, we accept the state’s
concession and exercise our discretion to correct the error.
         Conviction for interfering with a peace officer
reversed and remanded; remanded for resentencing; otherwise affirmed.