State v. Bryant

566                  February 7, 2024                No. 73

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
             GEORGE WILLIAM BRYANT,
                 Defendant-Appellant.
            Washington County Circuit Court
                 21CR12260; A176017

  Ramón A. Pagán, Judge.
  Argued and submitted December 20, 2022.
   John Evans, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  POWERS, J.
  Conviction on Count 1 reversed; otherwise affirmed.
Cite as 

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        POWERS, J.
          In this criminal proceeding, defendant challenges
his conviction for one count of hindering prosecution, ORS
162.325, arising out of his actions when law enforcement
arrested his friend on an outstanding warrant. We must
decide what “force” means for purposes of the hindering
prosecution statute when defendant prevented or obstructed
officers in their attempts to arrest his friend. More specifically, in a single assignment of error, defendant asserts
that the trial court erred in concluding that he prevented or
obstructed the officers from arresting his friend “by means
of force.” As explained below, we conclude that, based on the
proper construction of the statute, there was insufficient
evidence to support the trial court’s determination that
defendant used force. Accordingly, we reverse defendant’s
conviction and affirm the dismissal of an unrelated charge.
         When a defendant challenges the legal sufficiency of
the state’s evidence and the challenge depends on the meaning of the statute defining the offense, we review the trial
court’s interpretation and construction for legal error. State
v. Holsclaw, 

, 

, rev den, 

 (2017). After so doing, we then 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. 

 Accordingly, we begin
by describing the facts under our standard of review.
         On an early March evening, Officers Collins and
Bunday arrived at a park in downtown Hillsboro to arrest
Salah on an outstanding felony warrant. Defendant was at
the park with Salah. As Collins approached, Salah began
walking away, and defendant walked toward Collins briefly
blocking the officer’s path. Salah continued walking away
from Collins, who called out, “Stop. You have a felony warrant. Stop now.” Ultimately, Salah ended up with his back
against the wall of a storefront with defendant standing
with his back to Salah in between Salah and the officers.
The officers repeatedly told defendant that he needed to
move or they were going to take him to jail. Defendant
maintained his ground, standing between Salah and the
officers with his arms outstretched, moving back and forth
568                                                         State v. Bryant

to keep Salah against the wall and to maintain a barrier
between Salah and the officers. The officers testified that
defendant’s acts impeded and slowed down their efforts to
arrest Salah because defendant was “physically blocking”
Salah. The brief incident was captured on the officers’ body
cameras, and the videos were entered into evidence as a single exhibit during the bench trial. The following screenshot
from the body-camera footage illustrates defendant’s actions
that evening:




        After more officers arrived at the scene, Collins
shoved defendant toward Bunday, which allowed Bunday to
pull defendant by the arm away from Salah. The officers
then arrested Salah and defendant without further incident. The time between when the first officer arrived at the
scene and when defendant was pulled away from Salah was
about two minutes.
         Defendant was charged with hindering prosecution under ORS 162.325(1)(d), the text of which we set out
in full below, and another charge that was later dismissed.1
The indictment provided, in part, that “defendant … did
unlawfully, with intent to hinder the apprehension, prosecution, conviction or punishment of” Salah, a person who

    1
      Defendant was charged with one count of hindering prosecution (Count 1)
and one count of criminal trespass in the second degree (Count 2). The trial court
dismissed Count 2 on the state’s motion before trial, and that dismissal was later
incorporated into the judgment.
Cite as 

 (2024)                                   569

committed a felony, “prevent or obstruct a person by means
of force from performing an act which … might have aided
in the apprehension of” Salah. Defendant waived his right
to a jury trial, and the case proceeded to a trial before the
court.
        During the bench trial, the trial court heard testimony from Officers Collins, Bunday, and Shrestha and
received into evidence a video exhibit of the officers’ body
camera footage. Ultimately, the trial court concluded that
the state presented sufficient evidence that defendant
committed hindering prosecution “by means of force.”
Specifically, focusing on the period of time when defendant
was in between the officers and Salah, the court explained:
      “So then by means of force. He—is it—I think there’s an
   argument to be made that him simply move—running and
   putting himself in between the officers and Mr. Salah could
   be considered the force, but I don’t need to use that. I think
   that’s—I think the Court of Appeals could clarify that.
       “But [it] is when he starts hemming him in. At that
   point, he’s using his physical force to maintain. It is his use
   of force at that point in his maintaining a barrier between
   himself and law enforcement and Mr. Salah.
      “At that point, he is using more than just kind of standing there, because if—had he—and here’s the thing.
      “Had he just stood there and not listened to them and
   done nothing else, he’d be interfering with a peace officer.
       “But instead, he actually started taking physical
   actions to make sure that he was in between the officers at
   all time[s], and I think at that point, he has ‘forced himself
   in between them.’
      “And I can think of other kind of similar situations
   where, again, it’s just a person kind of putting their body
   and using the force of their body to come in between an officer and a person being arrested, and that’s what happened
   here.”
Defendant timely appeals his conviction, challenging the
trial court’s interpretation of the hindering prosecution
statute.
570                                          State v. Bryant

         On appeal, the issue is narrow, focusing on an issue
of statutory construction. That is, the parties focus on the
meaning of the phrase “by means of force” for purposes
of the hindering prosecution statute and whether there is
sufficient evidence in the record to meet that requirement.
Defendant argues that the word “force” should be defined as
“power, violence, compulsion, or constraint exerted upon or
against a person or thing,” and that it should not include the
de minimis physical interference that a person uses to stand
upright or move from side to side. The state remonstrates
that “force” should be defined as “any affirmative physical
act” that impedes or stops the performance of an act that
might aid in the apprehension of a felon. Thus, under the
state’s interpretation, defendant’s act of creating a barrier
between Salah and the officers was sufficient to constitute
force.
         In advancing their differing interpretations, the
parties’ arguments implicitly acknowledge that the trial
court’s conclusion was unclear as to (1) whether defendant
used force against the officers or Salah and (2) whether
defendant’s acts prevented or obstructed the officers from
arresting Salah or prevented or obstructed Salah from aiding in his own apprehension. They further agree that we
need not resolve that ambiguity because accepting either
of their respective proposed constructions of the phrase “by
means of force” would result in that party prevailing under
any theory. Thus, we turn to whether defendant’s act of
holding his outstretched arms while moving back and forth
when standing in between Salah and the officers constituted
“force” within the context of ORS 162.325(1)(d). To do so, we
turn to the familiar method of statutory interpretation set
out in State v. Gaines, 

, 

(2009), to ascertain the legislature’s intent.
         We begin by considering the text of the statute giving “careful attention to the exact wording of the statute”
because “only that wording received the consideration and
approval of a majority of the members of the Legislative
Assembly.” DCBS v. Muliro, 

, 

(2016) (internal quotation marks omitted). If the statute
does not define the disputed term, we initially assume that
Cite as 

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the term has its “plain, natural, and ordinary” meaning. 

at 746 (quoting PGE v. Bureau of Labor and Industries, 

, 

 (1993)). That is, if the legislature
has not defined a term and if nothing suggests that the legislature intended the term to have a specialized meaning,
we often consult dictionary definitions on the assumption
that, absent a specialized definition, the dictionary definition reflects the meaning that the legislature would have
intended. Importantly, we do not interpret statutes solely
based on dictionary definitions; instead, we examine word
usage in context to evaluate whether competing definitions
fit with what the legislature more likely intended. See Kaser
v. PERS, 

, 

, rev den, 

 (2022) (so stating).
         The hindering prosecution statute provides, in full:
       “(1) A person commits the crime of hindering prosecution if, with intent to hinder the apprehension, prosecution,
   conviction or punishment of a person who has committed a
   crime punishable as a felony, or with the intent to assist a
   person who has committed a crime punishable as a felony
   in profiting or benefiting from the commission of the crime,
   the person:
      “(a) Harbors or conceals such person; or
      “(b) Warns such person of impending discovery or
   apprehension; or
      “(c) Provides or aids in providing such person with
   money, transportation, weapon, disguise or other means of
   avoiding discovery or apprehension; or
      “(d) Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which
   might aid in the discovery or apprehension of such person;
   or
       “(e) Suppresses by any act of concealment, alteration
   or destruction physical evidence which might aid in the discovery or apprehension of such person; or
      “(f) Aids such person in securing or protecting the proceeds of the crime.
      “(2)   Hindering prosecution is a Class C felony.”
572                                          State v. Bryant

ORS 162.325. As noted earlier, defendant was charged with
violating ORS 162.325(1)(d), which has three main statutory
components, the first two of which are not at issue in this
appeal. First, the defendant must have the specific intent,
which is either an intent “to hinder the apprehension, prosecution, conviction or punishment of a person who has committed a crime punishable as a felony” or an intent “to assist
a person who has committed a crime punishable as a felony
in profiting or benefiting from the commission of the crime.”
ORS 162.325(1).
         Second, the defendant must perform an act that
“[p]revents or obstructs” another person “from performing
an act which might aid in the discovery or apprehension of
such person.” ORS 162.325(1)(d); see also State v. Hansen,

, 

 (2012) (concluding that
the term “prevent” “implies that a person does some act to
stop an occurrence from happening” and the term “obstruct”
“implies making someone’s action more difficult, as opposed
to stopping the action completely”).
         Third, the defendant’s act must be done “by means
of force, intimidation or deception.” ORS 162.325(1)(d). As
noted earlier, because the indictment in this case alleged
that defendant prevented or obstructed a person “by means
of force” from performing an act that might have aided in
the apprehension of Salah, we focus on the term “force.”
As explained below, because we ultimately conclude that
defendant did not use force against the officers or Salah,
we assume without deciding that the use of force contemplated in ORS 162.325(1)(d) could be force against the officers attempting to make the arrest or force against another
person. Moreover, for the same reason, we need not decide
whether defendant’s acts prevented or obstructed the officers’ efforts to arrest Salah or Salah’s ability to aid in his
own apprehension.
         The term “force” is not defined in the statute, and
thus we initially look to the dictionary definition. See Dept.
of Rev. v. Faris, 

, 

 (2008) (explaining that, when a term is not statutorily defined, we look
to the dictionary definition); State v. James, 

, 667 n 3, 

 (2014) (“Because the content of
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 (2024)                                     573

Webster’s—excluding the addenda section—has remained
static since 1961, in general, it is appropriate to treat it as
a contemporaneous source for statutes dating from at least
that point forward[.]”). The definition of “force” in Webster’s
Third New Int’l Dictionary 887 (unabridged ed 2002) provides, in part:
   “1 a : strength or energy [especially] of an exceptional
   degree : active power : vigor … c : power to affect in physical relations or conditions … 3 a : power, violence, compulsion, or constraint exerted upon or against a person or
   thing … b : strength or power of any degree that is exercised without justification or contrary to law upon a person
   or thing c : violence or such threat or display of physical
   aggression toward a person as reasonably inspires fear of
   pain, bodily harm, or death.”
(Boldface omitted.) The broad definition of force, which
includes “power, violence, compulsion, or constraint” and
“strength or power of any degree,” does not settle the matter.
Based on the dictionary definition alone, both parties’ interpretations are plausible. Thus, we turn to the context and
legislative history of the statute to aid in our interpretation of “force” and what the legislature may have intended.
See State v. Cloutier, 

, 

 (2011)
(explaining that dictionary definitions do not tell us what
words mean, but they provide guidance as to what words
can mean depending on the context and manner in which
they are used).
         When interpreting the text and context of a statute, we “consider all relevant statutes together, so that they
may be interpreted as a coherent, workable whole.” Unger v.
Rosenblum, 

, 221, 

 (2017). Although
nothing precludes the legislature from defining a term to
have different meanings in different statutes, we generally
assume that the legislature intended to use terms in related
statutes consistently, unless there is evidence to the contrary. Cloutier, 

.
        The hindering prosecution statute was enacted
as part of the 1971 Revised Criminal Code, and it has not
been amended since. Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
574                                          State v. Bryant

§ 207 (July 1970). The commentary to the hindering prosecution statute does not discuss the intended meaning of the
word “force.” Thus, we begin by looking at other parts of the
1971 Revised Criminal Code that use the word “force” to
inform our understanding of what the legislature would have
intended it to mean at that time. See Hansen, 

 (examining the definition of the term “obstruct” in
another part of the 1971 Revised Criminal Code to determine the legislature’s intent for the definition of “obstruct”
in the context of ORS 162.325(1)(d)).
         The first example in the 1971 Revised Criminal
Code is the crime of obstructing governmental administration, which provided that “[a] person commits the crime of
obstructing governmental administration if [the person]
intentionally obstructs … by means of intimidation, force,
physical interference or obstacle.” Final Draft and Report
§ 198(1); see also ORS 162.235 (setting out the current version of the crime, which has been amended since its initial
adoption in 1971). The commentary noted that the prohibited
conduct must be manifested by “threats, violence or physical
interference” to limit the prohibited conduct to avoid constitutional issues. Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 198, 199 (July 1970). The parallel structure
of the crime and the corresponding commentary suggests
that the commission equated “intimidation” with “threats,”
“force” with “violence,” and “physical interference or obstacle” with “physical interference.” Moreover, the use of the
phrase “physical interference or obstacle” suggests that the
commission intended to prohibit any physical act that creates an obstruction to governmental administration; however, it did not use the term “force” to describe that broad
range of conduct.
         The second example in the 1971 Revised Criminal
Code involves resisting arrest, which defined “resists” as
“the use or threatened use of violence, physical force or
any other means that creates a substantial risk of physical
injury to any person.” Final Draft and Report § 206(2); see
also ORS 162.315 (setting out the current version of resisting
arrest, which has been amended since its initial adoption in
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1971). The commentary noted that resisting arrest usually
involved “physical violence directed at the arresting officer” and was thus limited “to the use, or threatened use, of
physical violence or other acts producing a ‘substantial risk
of physical injury.’ ” Commentary § 206 at 204. Therefore,
for purposes of resisting arrest, the term “physical force”
involved some level of physical violence or other acts that
produce a risk of physical injury and not just any affirmative physical act. Taken together, those two examples tend
to show that the term “force” means something beyond “any
affirmative physical act” as the state contends.
         That understanding of the term “force” comes more
into focus when considering the differences between two
other examples in the 1971 Revised Criminal Code: escape
in the third degree and escape in the second degree. Thirddegree escape occurred when an offender “escapes from custody,” whereas escape in the second degree occurred when
an offender “uses or threatens to use physical force escaping
from custody.” Final Draft and Report §§ 190(1), 191(1)(a);
see also ORS 162.145 (setting out codified version of thirddegree escape, which has not been amended since its adoption in 1971); ORS 162.155 (setting out the current version
of second-degree escape, which has been amended since its
initial adoption in 1971). Thus, it is unlikely that the commission intended “force” to mean “any affirmative physical
act,” because that construction would mean that there was
no difference between third- and second-degree escape.
          Although we are not required to conclude that the
legislature in adopting the 1971 Revised Criminal Code
would have intended “force” to have the same meaning in
all the statutes, there is no evidence to the contrary. In
fact, there are places within the criminal code where the
commission likely intended to criminalize the concept of
“any affirmative physical act,” but it did not use the term
“force.” Instead, the phrase “by word or conduct” was used
to describe a broad range of prohibited conduct. For example, a person committed menacing “if by word or conduct
[the person] intentionally attempts to place another person
in fear of imminent serious physical injury.” Final Draft
and Report § 95(1). The commentary explained that it was
576                                          State v. Bryant

“intended to cover not only menacing physical acts but also
threatening words unaccompanied by a physical movement.”
Commentary § 95 at 96. The commission thus specified that
“physical acts” and “physical movements” of any kind could
be prohibited if accompanied by the requisite intent.
         Similarly, second-degree robbery provided that a
person committed the crime if the person “[r]epresents by
word or conduct that [the person] is armed with what purports to be a dangerous or deadly weapon.” Final Draft and
Report § 149(1)(a). The commentary observed that it prohibited acts that “create[ ] the impression that [the person] is
armed.” Commentary §§ 148-150 at 155 (emphasis omitted).
The commission described a broad range of conduct, including any act that creates the impression that the offender
is armed such as using the “hand-in-pocket” technique or
a fake weapon. Accordingly, in both crimes, the term “conduct” was likely intended to mean “any affirmative physical act.” Thus, instead of using the term “force” to mean
“any affirmative physical act,” it is likely that the criminal
code would use a different term. Said differently, if the legislature had intended the hindering prosecution statute to
apply as broadly as those two statutes, it is doubtful that it
would have chosen the term “force.”
         Finally, we have reviewed the legislative history
surrounding the adoption of the hindering prosecution
statute, and it does not further illuminate the meaning of
“force.” It is sufficient that the legislature used the word
“force” when prohibiting conduct that involves violence or a
risk of physical harm and used phrases such as “by word or
conduct” or “physical interference” to describe mere affirmative physical acts. In short, we conclude that the definition
of “force” means more than “any affirmative physical act”
for purposes of the hindering prosecution statute. Given the
underlying facts in this case, however, we need not delve
deeper into the particular contours of the term.
          Turning back to the facts of this case, we conclude
that, under the proper construction of the phrase “by means
of force,” defendant did not use force against Salah or the
officers. Defendant’s acts included stretching out his arms
and moving back and forth to keep Salah up against the
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wall. When the officers eventually apprehended Salah, they
were able to do so by grabbing defendant’s arm and pulling him away, and defendant did not resist. Those are mere
physical acts and physical movements that do not qualify
as “force” as that term is used in the hindering prosecution
statute. Although defendant temporarily created a barrier
between the officers and Salah, which obstructed and interfered with the officers’ apprehension of Salah by slowing it
down, defendant’s actions did not rise to the level of “force.”
Accordingly, we conclude that there was insufficient evidence for the trial court to enter a judgment of conviction.
        Conviction on Count 1 reversed; otherwise affirmed.