State v. Donato

                                       321

  Submitted October 21, 2022; Count 1 reversed, remanded for resentencing,
                  otherwise affirmed February 23, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                      KRISTINA EVA DONATO,
                         Defendant-Appellant.
                      Curry County Circuit Court
                        20CR59860; A175853
                                    

     Defendant appeals her judgment of conviction for interfering with a peace
officer (IPO) (Count 1) and harassment (Count 2). She assigns error to the trial
court’s denial of her motion for a judgment of acquittal (MJOA) on Count 1, which
relates to allegations that defendant refused to obey a peace officer’s lawful order
to sit down in a patrol car. Defendant challenges the sufficiency of the evidence
to establish the order’s lawfulness for the purpose of an IPO conviction. The state
contends that defendant’s claim is unpreserved and that, regardless, the order
was justified on officer-safety grounds. Held: Defendant preserved her challenge
to the lawfulness of the order by objecting below to the sufficiency of the evidence
to establish that the officer had authority to issue any order at the specified time.
On the merits, the state failed to meet its burden to prove that the officer-safety
concerns lawfully justified the order. The evidence did not support a conclusion
that the officer subjectively believed that defendant’s actions prior to the order
constituted a threat to his safety or that the basis for any such threat was objectively reasonable. Evidence that defendant was handcuffed at the time and that
a second officer was present for safety purposes mitigated any safety concerns.
Also, the officer’s testimony that defendant’s behavior prior to his order offended
rather than concerned him for his safety indicated that the officer had no subjective safety concerns toward defendant. The trial court thus erred in denying
defendant’s MJOA.
    Count 1 reversed; remanded for resentencing; otherwise affirmed.



    Cynthia Lynnae Beaman, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Hellman, Judge, and
Landau, Senior Judge.
322                                       State v. Donato

  ORTEGA, P. J.
   Count 1 reversed; remanded for resentencing; otherwise
affirmed.
Cite as 

 (2023)                            323

        ORTEGA, P. J.
         Defendant appeals from a judgment convicting
her of interfering with a peace officer (IPO) (Count 1) and
harassment (Count 2). She assigns error to the trial court’s
denial of her motion for a judgment of acquittal (MJOA) on
Count 1. She argues, among other things, that the evidence
is insufficient to establish that Officer Smithers’s order to
“sit down” was “lawful” for the purpose of her IPO conviction. The state disagrees, contending that defendant did
not preserve her argument concerning the lawfulness of
the order and that, regardless, the order was justified on
grounds of officer safety. Because we conclude that defendant’s challenge is preserved and that the evidence was not
sufficient to establish that Smithers’s order was lawful, the
trial court erred in denying defendant’s MJOA on Count 1.
Accordingly, we reverse the judgment of conviction as to
that count, remand for resentencing, and otherwise affirm.
         We review the denial of an MJOA for legal error.
State v. Newkirk, 

, 

, rev den,

 (2022). In doing so, “we view the evidence in
the light most favorable to the state to determine whether
a rational factfinder could find that the state had proved
every element of the offense beyond a reasonable doubt.”
State v. Fields, 

, 

 (2020);
ORS 136.445. We set forth the relevant facts with that standard in mind.
         On the occasion at issue, Officer Smithers approached
defendant and her son, who were in their parked truck.
Smithers intended to investigate an incident involving
defendant’s son, whom Smithers believed to be driving without a license. As Smithers attempted to talk to defendant’s
son, defendant got out of the truck. She was agitated and
continuously yelled at Smithers and at Detective Freeman,
who had arrived at the scene to assist Smithers. Smithers
handcuffed defendant, and defendant kicked him in the shin.
Smithers took defendant to the patrol car and instructed
her to sit down three times before she complied the fourth
time.
       The state charged defendant by information with
harassment (ORS 166.065) for kicking Smithers and IPO
324                                                          State v. Donato

(ORS 162.247 (2019), amended by Or Laws 2021, ch 254,
§ 1)1 for failing to sit down upon his first three requests.
Defendant pleaded not guilty, and the case was tried to a
jury.
         Smithers testified at trial, and the state introduced
video footage of the incident recorded by the dashboard camera on Smithers’s patrol car. According to Smithers, when he
approached the truck’s passenger side door to talk to defendant’s son, defendant—who was in the driver’s seat—became
“confrontational.” Video footage showed that the truck’s
doors were closed and defendant’s arms were reaching out
of the truck’s driver-side window as Smithers approached;
as Smithers tried to speak to defendant’s son, defendant
said, among other things, “Call your supervisor”; “I’m
driving, bitch”; “I suggest before you force a Waco motherfucking situation here [inaudible]”; “Get the fuck off my
fucking car … terrorist bitch.” As Smithers spoke to defendant’s son, defendant got out of the truck and moved toward
Freeman, who had arrived at the scene to ensure Smithers’s
safety. The video footage shows that, while getting out of the
truck, defendant said, “Look at me”; “I have no fucking gun”;
“You see.” She was wearing tight-fitting clothes that could
not conceal a weapon.
         Defendant then approached Freeman and stood by
him for about a minute, saying, among other things, “Get
your supervisor here now”; “You guys want Waco? You want
to force a Waco situation in Brookings?” She then started
moving closer to Freeman and quickly changed direction
and moved towards Smithers while saying, “Get the fuck
off my car, bitch.” Freeman immediately followed defendant.
Smithers testified that he attempted to tell defendant to
stop but “she got too close too fast,” giving Smithers no time
to finish his sentence advising her to stop, so he promptly
began to handcuff her. The video shows that Freeman put
    1
      In 2021, the legislature amended ORS 162.247. Or Laws 2021, ch 254, § 1.
The amendment is not relevant to our analysis. See id. at § 2 (“The amendments
to ORS 162.247 by section 1 of this 2021 Act apply to conduct alleged to constitute
an offense under ORS 162.247 occurring on or after the effective date of this 2021
Act.”); see also State v. Lanig, 

, 

 (1998) (“Whether
a particular enactment is to be applied retroactively is a matter of legislative
intent.”). Accordingly, we cite to the 2019 version of the statute, which was current at the time of the incident.
Cite as 

 (2023)                                                325

his hand against defendant’s shoulder while Smithers handcuffed her. At that point, defendant asked, “How many officers do you think I’m going to take down?” Smithers advised
her, “I’m doing this for my own safety,” and told her to relax,
as she continued to be verbally confrontational. Smithers
testified that defendant physically cooperated while being
handcuffed but continued to curse and yell. She said to
Smithers, “Take your hands off me,” at which point she
stomped on the ground and kicked Smithers, who was handcuffing her hands behind her back.
         Once defendant was handcuffed, Smithers and
Freeman walked her to the patrol car, and Smithers
instructed her to sit down four times. Defendant complied
after eight seconds, on Smithers’s fourth request. According
to Smithers, being kicked on the job offended him; he did
not say that it caused him concern for his safety and did not
explain why he took defendant to the patrol car.
         At the close of evidence, defendant moved for a judgment of acquittal on both the harassment and IPO charges.
Regarding the IPO charge—the only charge at issue on
appeal—defendant argued that the evidence was insufficient to establish that she knowingly disobeyed Smithers’s
order or that Smithers had “authority” to place her in the
patrol car at that point in time, considering that she was not
under arrest.
        The trial court denied defendant’s MJOA. It concluded that the evidence was sufficient to go to the jury, considering that the elements to be proved were that defendant
“unlawfully and knowingly refused to obey a lawful order”
by Smithers rather than “resisting arrest” or “interfering.”
The jury found defendant guilty, and the court entered a
judgment of conviction.
         On appeal, defendant assigns error to the trial
court’s denial of her MJOA on the IPO charge.2 She argues
that neither handcuffing her nor ordering her into the patrol
    2
      A challenge to the sufficiency of the evidence that an officer’s order was
lawful, for the purpose of proving an element of the crime, is properly raised in
a motion for a judgment of acquittal. State v. White, 

, 

, adh’d to as clarified on recons, 

, 

, rev den, 

 (2007).
326                                            State v. Donato

car was legally justified; rather, she argues, those actions
were disproportionate and unreasonable under the circumstances. The state contends that defendant did not preserve
her challenge to the lawfulness of Smithers’s order and that,
regardless, the order was lawful because it followed a lawful
detention that was reasonable as a safety precaution.
         We begin with preservation. Appellate courts generally will not review a claim of error that was not preserved
in the lower court. ORAP 5.45 (1). “[A]n objection as to the
legal insufficiency of evidence to prove a claim” requires
that the objecting party “explain to the court and opposing
party a specific reason for the asserted legal insufficiency.”
State v. K. J. B., 

, 

 (2018).
         Asserting that defendant’s challenge to the lawfulness of Smithers’s order is unpreserved, the state contends
that defendant did not sufficiently alert the trial court of
her objection to the lawfulness of her handcuffing or of
Smithers’s order itself. We need not decide whether a challenge to Smithers’s authority to handcuff defendant is preserved because the lawfulness of Smithers’s encounter with
her is not dispositive as to whether any order given during
the encounter was lawful. State v. Kreis, 

, 668
n 16, 

 (2019) (explaining that the lawfulness
of an order under ORS 162.247(1)(b) is to be judged “independently of the validity of the initial police confrontation”).
         As to whether defendant’s challenge to the lawfulness of Smithers’s order itself is preserved, we conclude that
defendant preserved her challenge. Defendant’s objection
to Smithers’s authority to place her in the patrol car sufficiently alerted the trial court to her challenge to the sufficiency of the evidence as to that element. By asserting below
that the evidence was insufficient to establish that Smithers
had “authority” to issue the disputed order, defendant fairly
apprised the trial court and the state of the “specific reason
for the asserted legal insufficiency” of the order. K. J. B.,

; see also Hagler v. Coastal Farm Holdings,
Inc., 

, 

 (2013) (the plaintiff “adequately … serve[d] the essential purposes of the
preservation rule” by “explain[ing] to the trial court that
her argument was ‘sort of leaning toward’ ” a specific legal
Cite as 

 (2023)                                            327

theory, which was sufficient to “fairly” apprise the parties of
the argument and give them “an opportunity to respond to
it”; that is “all that the rule of preservation requires”).
         We turn to the merits of defendant’s claim, which
concerns the lawfulness of Smithers’s order to sit down in
the police car after he handcuffed defendant.3 The applicable statutory provision, ORS 162.247, provides:
      “(1) A person commits the crime of interfering with a
   peace officer … if the person, knowing that another person is a peace officer …:
       “…
        “(b)   Refuses to obey a lawful order by the peace officer
   ….”
          An order given under ORS 162.247(1)(b) is “lawful”
if it is “authorized by, and is not contrary to, substantive
law.” Kreis, 

 (The question of whether an
order is contrary to substantive law depends on “the authority granted, and the restrictions imposed[ ] by the substantive law.”); see also State v. Navickas, 

,

, rev den, 

 (2015) (explaining that
“[t]he term lawful order in ORS 162.247(1)(b) does not create an opening for unequal or discretionary application”
and “leaves nothing to the ad hoc judgment of an individual police officer[,]” judge, or jury (internal quotation marks
omitted; citation omitted)).
         Arguing, as she did below, that Smithers’s order was
unlawful under ORS 162.247 because he had no authority to
order her to sit down, defendant asserts that there was no
indication that Smithers had elevated officer-safety concerns
that justified his request. Admitting that she was “belligerent” during the incident, defendant contends that ordering
her to sit down in the patrol car on officer-safety grounds,
after she was already handcuffed, was unreasonable under
the circumstances. The state contends that Smithers’s order
was lawful because it followed a lawful detention. It asserts

    3
      Because defendant did not challenge below the lawfulness of her handcuffing, we assume its lawfulness, but, under Kreis, we nonetheless determine independently whether Smithers’s subsequent order to sit down was also justified.

 n 16.
328                                           State v. Donato

that Smithers’s testimony and the footage from the incident
established that defendant was hostile to a level that would
reasonably raise a suspicion of a safety threat that would
justify Smithers’s conclusion that he should take active
safety measures to protect himself from her. According to
the state, defendant’s undisputed belligerence—especially
her references to “Waco”—would reasonably make Smithers
fear that defendant might harm him or, at a minimum,
defendant’s words set the stage for Smithers to fear her as
she approached him quickly.
          Both parties’ arguments are solely based on officer-safety concerns, which in turn focuses our review. Article I,
section 9, of the Oregon Constitution affords a law enforcement officer authority to “take reasonable steps to protect
himself or others if, during the course of a lawful encounter
with a citizen, the officer develops a reasonable suspicion,
based upon specific and articulable facts, that the citizen
might pose an immediate threat of serious physical injury
to the officer or to others then present.” State v. Bates, 

, 

 (1987); see also State v. Rudder,

, 

 (2009) (“reasonableness … is
not [and should not be] biased in favor of the concerns of the
police,” which “does not and cannot [have] greater weight
than the constitutional right of all persons … to be free
of unreasonable searches and seizures”). “[T]he question of
whether the police reasonably could suspect that the person
with whom they are interacting posed a threat of serious
physical harm must be resolved by considering the totality
of the circumstances” at the time of the action at issue. State
v. Madden, 

, 

 (2018). Accordingly,
as we review Smithers’s order independently under Kreis,

 n 16, we look at the totality of the circumstances to assess whether any safety concerns existed at the
time that order was given, thus justifying Smithers’s action.
Madden, 

.
         To prove that an officer’s action is justified under
officer-safety concerns, the state must meet the following
two-part inquiry:
   “First, the state bears the burden of establishing that:
   (1) based on specific and articulable facts known to the
Cite as 

 (2023)                                  329

   officer, the officer (2) had subjective reasonable suspicion,
   that (3) the defendant posed an immediate threat, and
   (4) the threat was of serious physical injury. Second, the
   state must prove that (1) the officer’s subjective safety concerns of an immediate threat of serious physical injury were
   objectively reasonable, and that (2) the officer’s response to
   the safety concerns was, itself, objectively reasonable. To
   determine whether an officer’s suspicion or the precautions
   that the officer took were reasonable, we look to the totality
   of the circumstances.”
State v. Phillips, 

, 

 (2021)
(citations omitted).
          In Madden, officer-safety concerns justified seizing
a person who was sitting in a parked car outside a “drug
house” where police had arrived to execute a warrant. 

. The three officers involved testified about their
reasons for their actions toward the defendant. Despite having no particularized information about the defendant, the
officers testified that they knew that the person sitting with
the defendant in the car was involved with drug crimes, and
the car’s proximity to the house gave officers a reasonable
belief that the two individuals had “some connection” to
the house. 

 One of the officers saw the defendant reach
back and shove a bag down between the seats as the officers approached. 

. Those facts, coupled with the
officers’ need to quickly secure the scene before entering
the house where the number of occupants or weapons was
unknown and the officers could reasonably expect individuals to behave violently or be under the influence of drugs,
amounted to a legitimate officer-safety concern justifying
the temporary detention of the defendant. 

.
Nevertheless, once the officers had secured the house, continuing to detain the defendant in handcuffs was not justified based on a safety threat because those measures “could
not have made the officers any safer from the perceived
threat.” 

.
         Similarly, in State v. Morgan, we concluded that
officer-safety concerns justified placing into custody and
frisking a defendant whom the police reasonably believed
to be armed with a gun and in the course of a possible kidnapping; nevertheless, once the suspect was detained and
330                                          State v. Donato

“frisked, any concern about immediate danger dissipated,
especially [considering the officer’s] description of [the]
defendant as polite and cooperative.” 

,

, rev den, 

 (1991) (internal quotation
marks omitted).
         Here, the state relies on Madden’s justified officer-safety measures to contend that defendant’s situation is even
more concerning, considering that the defendant in Madden
did not threaten the detectives and did not invoke violent
resistance as defendant did here. We note that the state’s
arguments on appeal go beyond what it offered at trial to
establish that Smithers had a subjective belief that defendant’s actions constituted a threat to his safety and had an
objective basis for such a belief. Unlike in Madden, where
the officers testified about the reasons for taking safety
measures, here, as explained above, 324 Or App at 325, the
state did not introduce testimony that explained whether
Smithers felt threatened under the circumstances. Nor,
upon defendant’s challenge to his authority in her MJOA,
did the state offer evidence to contend that Smithers’s action
was justified.
         Moreover, even assuming that Smithers was justified in handcuffing defendant based on a suspicion that
her quick approach posed a threat to him, as the state now
contends, Madden does not assist the state in explaining
why Smithers was justified on safety grounds in ordering
defendant to sit down after she was already handcuffed.
Indeed, the state fails to contend with Madden’s recognition that officer safety does not justify continuing measures
when the police gain control of the circumstances that pose
a safety threat. Though Madden does not support the resolution urged by the state, we nevertheless assess whether the
evidence in the record supports a conclusion that defendant
continued to pose a threat and to act with violent resistance
even after Smithers handcuffed her.
        Recognizing the dangers inherent in police work
and the challenges inherent in officer-safety decisions, we
cannot conclude that Smithers’s order was justified if we
conclude that any subjective suspicion concerning defendant
was not objectively reasonable. See Phillips, 312 Or App at
Cite as 

 (2023)                             331

244. Here, we conclude that any threat was mitigated once
defendant was handcuffed. The record establishes that,
although defendant was belligerent and, after being handcuffed, kicked Smithers in the shin, she did not present a
threat of serious physical injury to Smithers or to Freeman,
as required by Bates and Rudder.
         We note that Smithers’s testimony did not point to
specific and articulable facts that would support an objectively reasonable fear of defendant. Madden, 

(“[T]he officer must be able to point to specific and articulable facts … that would reasonably create a fear for
the safety of the officer or others[.]” (Quotation marks and
citation omitted.)). Instead, Smithers simply testified to the
accuracy of the video footage of the incident and confirmed
some of the assertions made by defendant. He did not testify
about defendant’s reference to “Waco,” a focus of the state’s
argument here, and as for defendant’s action of kicking
him in the shin (the only indication that she was physically
aggressive), Smithers testified that her behavior offended
him, but did not express concern for his safety. Article I,
section 9, requires an officer to suspect a safety threat to
justify measures to restrain a defendant, and the facts here
support neither a concern about safety nor an objective basis
for such a concern. Bates, 

.
        Beyond the references to Waco and defendant’s action
in kicking Smithers, the record contains no other evidence that defendant could have posed a threat to the officers’ safety. Despite defendant’s belligerence, the record
shows that Smithers had no reason to believe that she was
armed given her tight clothes that could not have concealed
a weapon and her assertion that she did not have a gun.
Additionally, Smithers testified that he was aware that
Freeman, who helped handcuff defendant, was present to
ensure Smithers’s safety, and defendant was handcuffed at
the time of the orders to sit down.
        It is understandable that Smithers might feel more
comfortable with defendant sitting in the police car; officers
commonly order citizens to do things for all sorts of reasons.
The question here, though, is whether Smithers’s order to
defendant to sit down was a lawful order that makes her
332                                           State v. Donato

failure to immediately obey punishable as IPO. The record
contains no indication that Smithers’s order was justified
by Article I, section 9, officer-safety concerns. Because we
conclude that the evidence does not support an inference
that Smithers reasonably suspected that defendant posed
a threat to him at the time that he ordered her to sit down,
we need not assess whether his order was reasonable on that
basis. Therefore, the state did not present sufficient evidence
that Smithers’s order was a lawful order for the purposes of
ORS 162.247(1)(b), and it consequently failed to prove every
element of IPO “beyond a reasonable doubt.” The trial court
thus erred in denying defendant’s MJOA.
         Count 1 reversed; remanded for resentencing; otherwise affirmed.