majority">CALKINS, J.

[¶ 1] Sharon Matson appeals from a judgment of conviction of obstructing government administration (Class D), 17-A M.R.S.A. § 751 (Supp.2002), and violating a condition of release (Class E), 15 M.R.S.A. § 1092 (2003), entered after trial *214in District Court (Rockland, Anderson, /.). On appeal, Matson argues that there was insufficient evidence that her rude and disruptive conduct toward a police officer who was in the process of arresting her companion constituted “intimidation” within the meaning of section 751. We agree and vacate the judgment.

[¶ 2] At approximately 2 a.m. on December 7, 2001, Rockland Police Officer Finnegan stopped a car for having a license plate light out, illegal attachment of plates, and suspicion of operating under the influence (OUI). Finnegan testified that he smelled alcohol on the breath of the driver, Gifford Campbell, and Finnegan asked Gif-ford to step out and walk to the front of Finnegan’s cruiser for field sobriety tests. Campbell’s passenger, Sharon Matson, came out of the car yelling, “No, no fucking way. You’re not doing to him what you did to me,” a reference to the fact that Finnegan had arrested her for OUI a few months before. Finnegan told Matson to sit in the car, to calm down, and not to interfere, but she refused and kept shouting. Finnegan performed a horizontal gaze nystagmus test on Campbell but did no additional field sobriety tests because Matson continued yelling at him and no back-up officers were available. As Finnegan told Campbell he was under arrest for operating after suspension, Matson “charged forward,” saying, “No, no fucking way. You’re not arresting him.” Matson stepped to within a couple of feet of Finnegan; as he began walking Campbell to the cruiser, she stepped in his way and refused to move, shouting all the while. Finnegan warned her she could be arrested for obstructing government administration and told her to step back, get out of the way, and stop interfering. She responded by saying, “Arrest.me.” He moved her out of the way with his left hand while holding Campbell with his right and walked past her to the cruiser. She followed, shouting. Finnegan stopped to search Campbell, and then moved him toward the rear door of the cruiser. Matson stepped in front of them, stood with her back against the door, spread her arms, and said, “No, no way, you’re not taking him to jail.” Finnegan told her to get out of the way, and she refused and again told him to arrest her. He moved her aside again, this time with his right hand, put Campbell in the cruiser, and arrested her. Matson said, “Good, I wanted you to arrest me.” On cross-examination, Finnegan stated that he was not in fear of Matson at any time and that she never struck him, threatened him, or called him names.

[¶ 3] The court took judicial notice of the file in Matson’s OUI case, which indicated that she had been released on bail, with conditions, in May 2001, and that the conditions remained in effect until the court found her not guilty in January 2002. Campbell and Matson testified to a story different from Finnegan’s, in which Finnegan used excessive force against Matson. In its closing, the State noted that it did not allege disorderly conduct and that Matson had a right to say what she said, but it argued that Matson had interfered with Finnegan’s arrest of Campbell by intimidation and force. The court found that Finnegan’s testimony was credible, that Matson’s testimony was inconsistent, and that it was unlikely that the events transpired as she had described them. The court found that Matson’s conduct involved intimidation but not force and found her guilty of obstructing government administration and of violating a condition of release by committing new criminal conduct. The court sentenced Matson to pay fines.

[¶ 4] We review the sufficiency of the evidence in the light most favorable to the State to determine whether the trier of fact rationally could have found beyond a *215reasonable doubt every element of the offense charged. State v. Radley, 2002 ME 150, ¶ 20, 804 A.2d 1127, 1133. Title 17-A M.R.S.A. § 751(1) provides: “A person is guilty of obstructing government administration if the person uses force, violence or intimidation or engages in any criminal act with the intent to interfere with a public servant performing or purporting to perform an official function.” Because the court based its determination of guilt on a finding that Matson had used intimidation, not force, and because there is no doubt that, in arresting Campbell, Finnegan was a public servant performing an official function and that Matson intended to interfere with that arrest, the issue on appeal is whether the evidence supports a finding that her conduct involved intimidation within the meaning of the statute.

[¶ 5] We have interpreted the intimidation provision in section 751 once, in State v. Janisczak, 579 A.2d 736 (Me.1990). The defendant in that case interfered with an arrest by yelling profanities at officers, who were struggling with a large, violent suspect. We adopted a definition of intimidation as “[u]nlawful coercion, extortion, duress, or putting in fear.” Id.at 738 (quoting Black’s Law Dictionary 736 (5th ed.1979)). We then applied that definition to hold that

[n]o reasonable trier of fact could find on the evidence presented that Janisczak’s actions constituted unlawful coercion, extortion, or duress. Further, although all five of the officers who were present at the scene testified at trial, none stated that he was put in fear by the defendant. Nor did any officer present testimony from which a jury reasonably could infer that one or more of the officers was afraid of Janisczak or his actions.

Id.

[¶ 6] The State attempts to distinguish Janisczakon the basis that the defendant’s conduct there consisted solely of speech, whereas Matson physically interfered with the arrest here. This argument is unconvincing. In holding in Janisczakthat the evidence was insufficient to prove intimidation, we focused not on the lack of physical interference, but on the fact that the officers were not actually intimidated by the defendant’s conduct. That analysis is controlling here. Finnegan admitted that he was not put in fear by Matson’s conduct, and there is no basis for concluding that her actions constituted coercion, much less duress or extortion. The State presented no evidence that Finnegan was intimidated.1

[¶ 7] The State seems to suggest that Matson must have been guilty of obstructing government administration because she physically interfered with an arrest. However, physical interference without the use of force, violence, or the commission of a crime and which does not actually intimidate the police officer has not been made a crime. The Legislature could have drafted section 751 to prohibit any physical interference with a public servant performing an official function, but it chose not to do so. Cf. Model Penal Code § 242.1 (2001) (“A person commits a misdemeanor if he purposely obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle .... ”). Or, having modeled the obstructing government administration statute on New Hampshire’s, see 17-A M.R.S.A. § 751,1975 cmt. (1983) (stating that section 751 is based on *216N.H. Rev. Stat. AnN. § 642:1), the Legislature could have adopted a separate statute similar to N.H. Rev. Stat. AnN. § 642:2 (1996), which prohibits physical interference with an arrest by the arrestee or another person. Instead, 17-A M.R.S.A. § 751-A (Supp.2002) only prohibits refusal to submit to arrest by the arrestee himself, and then only if it involves physical force or substantial risk of bodily injury. The Legislature chose to draft section 751 narrowly, and we have construed it narrowly. See Janisczak, 579 A.2d at 741-42 (Clifford, J., concurring) (“Because of the narrow construction required to be given to criminal statutes, I agree with the Court that the actions of Janisczak do not constitute intimidation within the meaning of 17-A M.R.S.A. § 751(1).”).

[¶ 8] The evidence was insufficient to support Matson’s conviction for obstructing government administration. Because that conviction cannot stand, there was also insufficient evidence to prove that Matson violated a condition of release by committing new criminal conduct.

The entry is:

Judgment vacated. Remanded for entry of judgment of acquittal.

Dissent: SAUFLEY, C.J., and ALEXANDER and LEVY, JJ.

. The dissent utilizes the defense evidence to find intimidation. The trial court, however, disparaged the defense testimony, finding it "inconsistent” and an “unlikelihood” that events had occurred as Matson described them.

Citation profile

Relationships

How this case has been treated — in progress