State v. Allison , 104 Or. App. 149 ( 1990 )

WARREN, P. J.

Defendant appeals his conviction for resisting arrest. ORS 162.315. He assigns error to the denial of his motion for judgment of acquittal. ORS 136.445. We affirm.

Officers Bailey and Mahler stopped to investigate what appeared to be an unoccupied vehicle that was on the side of the road with its engine running. They found defendant slumped over in his seat. He was intoxicated and hostile and refused the officers’ orders to turn off the engine and get out of the car. He grabbed Bailey’s radio and stuffed it down his pants. Bailey grabbed defendant’s left arm and tried to pull him out of the vehicle, but he locked his right arm around the steering wheel. Mahler tried to help, and the men struggled for several minutes. Defendant eventually relented and stepped out of his vehicle. The officers then had to drag him to the police vehicle by his handcuffed arms while he fought against them by digging his feet into the ground.

Defendant argues that his motion for a judgment of acquittal should have been granted, because the state failed to prove that defendant “resisted” within the meaning of the statute. We review the evidence, viewed in the light most favorable to the state, to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. King, 307 Or 332, 768 P2d 391 (1989).

At the time of defendant’s arrest, ORS 162.315 provided, in part:

“(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer in making an arrest.

“(2) ‘Resists,’ as used in this section, means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person.”

The statute did not prohibit passive resistance or flight. State v. Hutchinson, 94 Or App 441, 765 P2d 248 (1988). We disagree with defendant’s contention that his conduct was mere passive resistance. A rational trier of fact could find that clutching a steering wheel while one’s body is being pulled the other direction involves the use of physical force.

The state also had to offer evidence that defendant’s conduct created “a substantial risk of physical injury to any person.” ORS 162.315(2). (Emphasis supplied.) See also State v. Crane, 46 Or App 547, 612 P2d 735, rev den 289 Or 903 (1980). The legislative history indicates that “any person” includes “the actor, the peace officer or other persons in the immediate area.” Commentary to Proposed Oregon Criminal Code 204, § 206 (1970). (Emphasis supplied.) A rational trier of fact could conclude that defendant’s conduct created a substantial risk of injury to himself. By locking his arms around the steering wheel, defendant put himself in the position of a rope in a tug-of-war. With enough force, eventually, the rope will break. Officers should not have to risk pulling a defendant’s arm out of its socket in order to place him under arrest. The trial court correctly denied defendant’s motion for judgment of acquittal.

Affirmed.