State v. Hitchins , 287 Or. App. 597 ( 2017 )

PER CURIAM

Defendant appeals from a judgment of conviction for second-degree disorderly conduct, ORS 166.025, and second-degree criminal trespass, ORS 164.245. He assigns error to, among other things, the trial court’s denial of his motion for judgment of acquittal on the disorderly conduct charge.¹

Defendant’s convictions are associated with events that occurred at a protest outside of a private residence, in which defendant participated in chanting as part of a group of 30-40 protesters, and briefly yelled on his own. He was charged with disorderly conduct under ORS 166.025(l)(b). As an element of that offense, the state was required to prove that defendant made “unreasonable noise.” Defendant argued in a motion for judgment of acquittal that the state had presented insufficient evidence that he personally had made “unreasonable noise.” See State v. Rich, 218 Or App 642, 647, 180 P3d 744 (2008) (interpreting the term “unreasonable noise” in ORS 166.025(l)(b), “insofar as it might refer to noise caused by speech, to refer only to its noncom-municative elements,” such as its “volume, duration, etc.”). The state concedes that the evidence was insufficient to prove that defendant made “unreasonable noise” within the meaning of ORS 166.025(l)(b). We agree, accept the state’s concession, and reverse the conviction for disorderly conduct.

Conviction for disorderly conduct reversed; otherwise affirmed.

1 We reject without written discussion defendant’s second and third assignments of error.