State v. E. L. W.

                                313

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
        Submitted June 12, reversed and remanded July 26, 2023


                  In the Matter of E. L. W.,
                           a Youth.
                   STATE OF OREGON,
                         Respondent,
                              v.
                           E. L. W.,
                          Appellant.
                 Curry County Circuit Court
                    21JU01875; A176312


  Cynthia Lynnae Beaman, Judge.
   Ginger Fitch and Youth, Rights & Justice filed the brief
for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
  JOYCE, J.
  Reversed and remanded.
314                                                       State v. E. L. W.

           JOYCE, J.
         Youth appeals from a judgment finding him within
the jurisdiction of the juvenile court based on acts that, if
committed by an adult, would constitute interfering with a
police officer, ORS 162.247(1)(b) (2021), amended by Or Laws
2021, ch 254, § 1. We reverse and remand.
         Two police officers, Dunning and Fleming, along
with two people from the Oregon Youth Authority went to
youth’s family home to arrest youth on a probation violation warrant. While they were waiting for youth to come to
the door, Dunning walked around to the back of the building and saw youth climb out of a window and run away.
Dunning began to chase youth, shouting, “Don’t do it,”
“Stop,” and, “You’re under arrest.” Fleming ran around the
other side of the building, saw Dunning chasing youth, and
yelled, “Stop,” to no avail. Police apprehended youth a few
hours later.
         The state alleged that youth “unlawfully and knowingly refuse[d] to obey a lawful order of [Officer] Fleming
… which order was to stop.” Accordingly, at the adjudicatory hearing, the parties’ arguments on that count focused
on whether youth heard Fleming yell, “Stop.”1 However, the
juvenile court found youth to be within its jurisdiction on
the basis that youth “knew or should have known that he
refused to obey a lawful order … by the peace officer, that
order, ‘Don’t do it,’ and, ‘You’re under arrest’ ”—orders that
were given by Dunning, not, as the petition alleged, the one
given by Fleming. Neither party made any objections at that
point.
        On appeal, youth argues, and we agree, that the
juvenile court plainly erred in applying the lesser culpable mental state of “knew or should have known” (emphasis
added). See State v. Ruggles, 

, 

 (2010), rev den, 

 (2011) (to commit interfering with a police officer, a “person must refuse to obey
the order, and that verb implies knowledge and intent”
(emphasis omitted)); see also State v. Lane, 

,

    1
      The state also alleged that youth committed escape in the third degree, but
the juvenile court found the evidence to be insufficient on that count.
Nonprecedential Memo Op: 

 (2023)                            315

 (2006) (“Having alleged that defendant acted
knowingly, the state was required to prove defendant’s
knowledge.”). To be sure, as the state observes, the juvenile
court also found that youth “knew” that the officers were
there to arrest him, could hear Dunning say, “You’re under
arrest,” and continued to run. In the state’s view, the record
is thus ambiguous as to whether the court found the requisite “knowingly” mental state and therefore cannot be plain
error. We disagree because, as noted, the petition did not
allege Dunning’s orders as the basis for the allegation, and
the juvenile court did not find that youth knowingly refused
Fleming’s order to stop.
         Under the circumstances, we consider it appropriate to exercise our discretion to correct the error. See Ailes
v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991) (describing the factors to consider when deciding
whether to address plain error). We do not think that the
policies behind the preservation rule weigh so strongly in
this case, because given how the state charged youth (using
the correct mental state) and how the parties argued the
case (focusing on Fleming’s order), the court’s ruling likely
took the parties by surprise. See State v. Keene, 

, 

 (2022) (excusing the preservation
requirement where “[c]onsidering how the case was tried,
the trial court’s verdict was a surprise that defendant had
no reason to anticipate”). We further consider the nature of
the case—a delinquency adjudication—and the gravity of
the error to weigh in favor of exercising our discretion. We
therefore reverse and remand to the trial court.2
           Reversed and remanded.




    2
      Youth argues that we should reverse, while the state argues that we should
vacate and remand to the juvenile court. In our view, reversing and remanding is
the correct disposition.