State v. Moore

                                       91

       Submitted March 17, affirmed July 12, petition for review denied
                     December 21, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   JOSHUA CHARLES MOORE,
                       Defendant-Appellant.
                   Douglas County Circuit Court
                     20CR50577, 21CR06898;
                    A176448 (Control), A176449
                                  

    Defendant was convicted by a jury of second-degree disorderly conduct for
obstructing traffic after an incident during which he walked down the middle of
the road at night while intoxicated. Defendant appeals the trial court’s denial of
his motion for a judgment of acquittal on the charge, arguing that the state failed
to adduce sufficient evidence that he “obstructed traffic” as required under ORS
166.025. Held: A reasonable factfinder could conclude that defendant created a
sufficient risk of public inconvenience, annoyance, or alarm to support a conviction. The state was not required to prove that the obstruction was of any certain
duration or any number of people were actually affected. A member of the public
driving behind defendant would have been required to enter the oncoming traffic
lane or drive on the shoulder to get around him and would reasonably have been
alarmed by attempting to pass him.
    Affirmed.



    William A. Marshall, 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 Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
    JACQUOT, J.
    Affirmed.
92                                              State v. Moore

        JACQUOT, J.
         Defendant was convicted of interfering with a peace
officer, ORS 162.247 (Count 1); harassment, ORS 166.065
(Count 2); and second-degree disorderly conduct, ORS
166.025 (Count 3), after an incident during which he walked
down the middle of a road while intoxicated. On appeal,
defendant first assigns error to the trial court’s denial of his
motion for a judgment of acquittal (MJOA) on Count 3, arguing that the state failed to adduce sufficient evidence that
he “obstructed traffic” as required under ORS 166.025. We
conclude that the trial court did not err in denying defendant’s MJOA. Second, he assigns error to the trial court’s
failure to instruct the jury that it must agree on what conduct constituted the offense of interfering with a peace officer. We summarily reject that argument, noting only that,
even if the trial court plainly erred in failing to give a concurrence instruction, we would not exercise our discretion to
correct the error because it was harmless. Accordingly, we
affirm.
         On review of the denial of an MJOA, we view the
facts in the light most favorable to the state. State v. Street,

, 

, rev den, 

 (2022).
Late one evening, a couple called the police after they discovered defendant looking into an open door of their SUV.
Defendant’s hair was “a mess” and he was wearing only
camouflage pajama pants with no shirt or shoes. After the
couple confronted defendant, he walked away and then
began running down the street. Upon responding to the
couple’s call, a police officer found defendant walking down
the middle of the northbound lane of a two-lane road with
a truck following behind him. The officer, driving a marked
patrol SUV, passed defendant and the truck going south
in the southbound lane, turned around, approached defendant from behind in the northbound lane, and turned on
his lights. The officer testified that the truck that had been
behind defendant was no longer at the scene, although it is
unclear from trial testimony precisely how it left.
        Defendant began running towards the patrol SUV.
At that point, the officer got out of the vehicle. The officer
attempted to get defendant out of the road, but defendant
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repeatedly returned to the middle of the northbound lane.
Eventually, the officer tased and arrested defendant. Upon
being taken into custody, defendant stated that he had
taken a highly concentrated form of THC and was in “panic
mode.”
          At the close of the state’s case, defendant orally
moved for a judgment of acquittal, arguing that the evidence
did not establish that he was obstructing traffic within the
meaning of ORS 166.025(1)(d), 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 … “[o]bstructs vehicular or pedestrian traffic on a public way.” In defendant’s view, the term “obstructing traffic”
in the statute requires that there be some actual traffic to
impede. According to the defense, because there was only
one vehicle, the truck that may have been intentionally following him, he was not obstructing traffic. The trial court
denied defendant’s motion, concluding that, viewing the evidence in the light most favorable to the state, the effect that
defendant’s conduct had on the one vehicle was sufficient
to allow the question to go to the jury. The jury convicted
defendant.
        In his first assignment of error, defendant argues
that “obstructed” traffic within the meaning of ORS
166.025(1)(d) requires conduct that significantly blocks or
impedes the flow of vehicular traffic. According to defendant, “a mere momentary delay or a slight adjustment to
another vehicle’s trajectory” is insufficient to constitute an
obstruction. Relying on the culpable mental state in ORS
166.025(1)(d), “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof”; other
methods of committing disorderly conduct; legislative history; and our case law discussed below, he argues that the
“extent and duration of the obstruction must have been of
such severity that it had a genuine tendency to provoke a
breach of the peace.”1 Defendant contends that evidence that

   1
     “Public inconvenience, annoyance or alarm” is modern terminology for what
was at common law termed a “breach of the peace.” Commentary to Criminal Law
Revision Commission Proposed Oregon Criminal Code, Final Draft and Report
94                                                            State v. Moore

he walked down a two-lane road being followed by a single
truck, that the police officer was able to pass both defendant
and the vehicle in the other lane, and that the truck was
able to leave the road once the police officer turned around,
is insufficient for a reasonable factfinder to conclude that
defendant “obstructed traffic.” Therefore, defendant asserts,
the trial court erred when it denied his MJOA.
         We review the denial of an MJOA for legal error,
including where the “challenge to the legal sufficiency of the
state’s evidence depends upon the meaning of the statute
defining the offense.” Street, 

. To address
the parties’ arguments, we engage in our usual mode of
statutory construction to determine what the legislature
intended, first considering the text and context of ORS
166.025(1)(d). State v. Gaines, 

, 

 (2009). We may then also consider the legislative history of the statute under examination and give it the weight
that we consider to be appropriate. ORS 174.020(3); Gaines,

. “Then, based on the proper construction of
the statute, we view the evidence in the light most favorable
to the state to determine whether a rational factfinder could
have found the elements of the offense beyond a reasonable
doubt.” Street, 

 (internal quotation marks
and citation omitted).
         When the legislature has not defined a statutory
term, but the term includes “words of common usage,” we
examine its “plain, natural, and ordinary meaning,” which
is usually accomplished by reference to a contemporary dictionary. State v. Castillo, 

, 

(2021) (internal quotation marks omitted). If a term has
more than one meaning, the context of its use guides our
determination of which of multiple meanings the legislature intended. State v. Fries, 

, 

(2008). A statute’s context “includes other provisions of the
same or related statutes, the pre-existing statutory framework within which the statute was enacted,” and prior decisions interpreting the relevant statutory wording. Ogle v.
Nooth, 

, 

 (2014).

§ 220 (July 1970) (“[The disorderly conduct statute] is directed at conduct causing
what the common law termed a breach of the peace.”).
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           ORS 166.025(1)(d) provides:
       “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) Obstructs vehicular or pedestrian traffic on a public way[.]”

The legislature has not defined the term “obstructs” in ORS
166.025(1)(d), and we have not expressly construed the term,
although we have implicitly addressed its meaning in prior
cases as discussed below. Because ORS 166.025 does not
define “obstructs,” we will first look to the ordinary meaning of the term. Gaines, 

. We agree with
the parties that the following is the most likely definition
intended by the legislature: “to block up : stop up or close up
: place an obstacle in or fill with obstacles or impediments
to passing <traffic ~ing the street> <veins ~ed by clots>.”
Webster’s Third New Int’l Dictionary 1559 (unabridged ed
2002).
         However, defendant further argues that “obstructs”
also includes temporal and severity requirements, requiring
a prolonged and severe blockage. He asserts that the legislature intended “obstructing” vehicular traffic under ORS
166.025(1)(d) to apply to persons whose conduct physically
blocks up a street to a degree that risks causing a breach
of the peace or, in modern language, public inconvenience,
annoyance or alarm.2
        We agree that a plain reading of the statute
requires that the conduct (obstruction) must, at minimum,
create a risk of causing public inconvenience, annoyance or

    2
      Defendant also argues that the legislature only intended to cover “ ‘intentional obstructions’ as opposed to mere negligent or reckless obstructions,” meaning that the severity of the obstruction must be commensurate with a breach of
the peace. (Emphasis in original.) However, that argument depends on a legal
issue that is not before us—namely, the statutorily required culpable mental
state of disorderly conduct. Defendant did not argue at trial or in his MJOA, and
does not argue on appeal, that he did not possess the requisite culpable mental
state. As a result, we reject that argument.
96                                                            State v. Moore

alarm.3 Otherwise, the conduct element of the offense would
not be satisfied. But we disagree with defendant that the
cases he relies on are sufficiently similar or support his construction of “obstructs” as including his proposed temporal
requirement.
         Defendant points to City of Eugene v. Lee, 

, 

 (2001), to support his claim that
causing a “mere redirection” is insufficient to establish
obstruction, but that case is distinguishable. In Lee, the
defendant, a street preacher, was convicted of disorderly
conduct under a provision of the Eugene City Code identical
to ORS 166.025(1)(d). 

. The defendant was loudly
preaching at a pedestrian mall, calling some passersby
offensive terms and causing a crowd to gather around him
on the south side of the mall. 

. We reversed the
defendant’s conviction, determining that because pedestrians who did not want to stop and listen could walk past the
crowd unimpeded, and the defendant was engaged in constitutionally protected expressive activity, the disorderly conduct provision could not constitutionally be applied to that
defendant under those circumstances. 

.
         Defendant’s reliance on Lee is misplaced. First, the
defendant in Lee brought an as-applied constitutional challenge to his conviction because he was engaged in a protected activity. Here, defendant was not engaging in any
constitutionally protected activity but was instead walking
down the middle of the road at night. Second, although the
pedestrians in Lee had to slightly alter their path, they were
not forced into an area not intended for, or potentially dangerous to, pedestrian traffic. Instead, they could simply walk
around where the defendant and the crowd were gathered
unimpeded and without exiting the pedestrian mall. Here,
on the facts presented, vehicles would have been forced to
     3
       Because ORS 166.025 was derived from a New York statute, defendant
relies on a New York Court of Appeals case to argue that defendant’s conduct
must threaten “public order” in a manner distinct from a personal clash between
individual disputants, and that the conduct must create a risk of escalation into
a public problem. People v. Pritchard, 

, 

 (1970).
Even assuming arguendo that we would construe the Oregon statute in that way,
on the facts before us viewed in the light most favorable to the state, there is no
indication that defendant was engaged in a personal clash with another specific
individual.
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stop, travel into the oncoming traffic lane, or drive onto the
shoulder to get around defendant.
         Defendant also relies on State v. Hund, involving a
group of environmental activists who were convicted of disorderly conduct for preventing a logging company’s vehicles
from entering a forest to remove timber. 

,

 (1985), rev den, 

 (1986). Although
the group stated that they would permit any traffic other
than the logging company’s vehicles to pass, we rejected
their argument that the trial court should have sua sponte
granted a judgment of acquittal and affirmed their convictions, explaining that
   “they would necessarily have had to stop that traffic temporarily in order to determine whether it could move through
   their blockade. Although the conclusion is not compelled,
   a rational trier of fact could have determined that defendants’ acts could cause public inconvenience …. That is
   sufficient to justify the jury’s verdict.”
Id. at 93 (emphases added). Hence, in certain circumstances,
stopping traffic even temporarily has sufficient potential
to cause public inconvenience within the meaning of ORS
166.025(1)(d). Hund therefore does not support defendant’s
proposed definition of “obstructs” as including a temporal
boundary.
          Defendant also relies on State v. Horn, in which we
concluded that testimony that the defendants stepped into
the road in front of vehicles and that traffic had backed up
was sufficient for the trial court to deny the defendants’
MJOA and for the jury to find that the defendants obstructed
traffic. 

, 

 (1982). Although
we pointed to testimony regarding the back up of traffic as
evidence sufficient to present to the jury, we did not require
any specific extent of obstruction or number of vehicles in so
concluding. 

        To the extent that defendant intends to argue that,
because his actions only affected one member of the public,
the truck following him, and because it is unclear whether
the truck was intentionally following him, he could not
have caused inconvenience to the public, our prior decisions
have clearly rejected that argument. In State v. Willy, the
98                                             State v. Moore

defendants were convicted by a jury of disorderly conduct for
making unreasonable noise for firing guns at night in their
neighborhood. 

, 

 (1998). At
that time, existing case law held that evidence of actual
inconvenience, annoyance, or alarm to a substantial number of people was required to prove disorderly conduct, and
the defendants argued that the state did not prove that their
conduct actually annoyed or alarmed more than two people.

. We overruled the existing case law, explaining
that “[t]here is no support in the language of ORS 166.025(1)
… that the statute requires proof of actual public inconvenience, annoyance or alarm or that the ‘public’ nature of
inconvenience, annoyance or alarm is determined by reference to the number of persons actually so affected.” 

.
         Viewing the facts in the light most favorable to the
state, a reasonable factfinder could conclude that by walking in the middle of one lane of a two-lane road at night,
defendant created a sufficient enough risk of public inconvenience, annoyance, or alarm to support a conviction for
disorderly conduct by obstructing traffic. Although defendant did not block all lanes of traffic, he correctly acknowledges that an individual need not entirely block all passage
to have “obstructed.” Additionally, although there was only
one vehicle on the road at that time, the state need not prove
actual public inconvenience, annoyance, or alarm to any
specific number of people. Further, not only would a member
of the public driving behind him be required to get around
him by entering the oncoming traffic lane or driving on the
shoulder, it is reasonable to infer from the circumstances
that a member of the public driving behind defendant would
be alarmed about passing him at all. He was walking at
night, in the dark, in the middle of the northbound lane,
and did not move out of the road when a vehicle approached
him. Reasonable members of the public observing defendant
at that time in that state could be alarmed about whether it
was safe for themselves and defendant to attempt to drive
around him.
        Accordingly, viewing the evidence in the light most
favorable to the state, we determine that a rational factfinder
could have found beyond a reasonable doubt that defendant
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committed the crime of disorderly conduct by obstructing
traffic and the trial court did not err when it denied defendant’s MJOA.
        Affirmed.