State v. Moore ( 2023 )

No. 365 July 12, 2023 91
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSHUA CHARLES MOORE,
Defendant-Appellant.
Douglas County Circuit Court
20CR50577, 21CR06898;
A176448 (Control), A176449
William A. Marshall, Judge.
Submitted March 17, 2023.
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, argu-
ing 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 defen-
dant’s MJOA. Second, he assigns error to the trial court’s
failure to instruct the jury that it must agree on what con-
duct constituted the offense of interfering with a peace offi-
cer. We summarily reject that argument, noting only that,
even if the trial court plainly erred in failing to give a con-
currence 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,
317 Or App 1, 4, 505 P3d 425, rev den, 369 Or 705 (2022).
Late one evening, a couple called the police after they dis-
covered 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 defen-
dant 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
Cite as 327 Or App 91 (2023) 93
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] per-
son commits the crime of disorderly conduct in the second
degree if, with intent to cause public inconvenience, annoy-
ance or alarm, or recklessly creating a risk thereof, the per-
son * * * “[o]bstructs vehicular or pedestrian traffic on a pub-
lic 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 fol-
lowing him, he was not obstructing traffic. The trial court
denied defendant’s motion, concluding that, viewing the evi-
dence 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 defen-
dant, “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, annoy-
ance or alarm, or recklessly creating a risk thereof”; other
methods of committing disorderly conduct; legislative his-
tory; 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, 317 Or App at 4. 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, 346 Or 160, 171-72, 206 P3d
1042 (2009). We may then also consider the legislative his-
tory of the statute under examination and give it the weight
that we consider to be appropriate. ORS 174.020(3); Gaines,
346 Or at 171-72. “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, 317 Or App at 4 (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 dic-
tionary. State v. Castillo, 313 Or App 699, 705, 495 P3d 191
(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 legisla-
ture intended. State v. Fries, 344 Or 541, 546, 185 P3d 453
(2008). A statute’s context “includes other provisions of the
same or related statutes, the pre-existing statutory frame-
work within which the statute was enacted,” and prior deci-
sions interpreting the relevant statutory wording. Ogle v.
Nooth, 355 Or 570, 584, 330 P3d 572 (2014).
§ 220 (July 1970) (“[The disorderly conduct statute] is directed at conduct causing
what the common law termed a breach of the peace.”).
Cite as 327 Or App 91 (2023) 95
ORS 166.025(1)(d) provides:
“A person commits the crime of disorderly conduct in
the second degree if, with intent to cause public inconve-
nience, annoyance or alarm, or recklessly creating a risk
thereof, the person:
“* * * * *
“(d) Obstructs vehicular or pedestrian traffic on a pub-
lic 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 mean-
ing of the term. Gaines, 346 Or at 171-72. 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 legis-
lature 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 “ ‘inten-
tional obstructions’ as opposed to mere negligent or reckless obstructions,” mean-
ing 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 con-
struction of “obstructs” as including his proposed temporal
requirement.
Defendant points to City of Eugene v. Lee, 177
Or App 492, 34 P3d 690 (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). Id. at 494. 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. Id. at 494-95. We reversed the
defendant’s conviction, determining that because pedestri-
ans who did not want to stop and listen could walk past the
crowd unimpeded, and the defendant was engaged in consti-
tutionally protected expressive activity, the disorderly con-
duct provision could not constitutionally be applied to that
defendant under those circumstances. Id. at 503.
Defendant’s reliance on Lee is misplaced. First, the
defendant in Lee brought an as-applied constitutional chal-
lenge to his conviction because he was engaged in a pro-
tected 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 dan-
gerous 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, 27 NY2d 246, 248-49, 265 NE2d 532 (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.
Cite as 327 Or App 91 (2023) 97
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 dis-
orderly conduct for preventing a logging company’s vehicles
from entering a forest to remove timber. 76 Or App 89, 91-92,
708 P2d 621 (1985), rev den, 300 Or 477 (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 convic-
tions, explaining that
“they would necessarily have had to stop that traffic tempo-
rarily 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 defen-
dants’ 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. 57 Or App 124, 130, 643 P2d 1338 (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. Id.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. 155 Or App 279, 282, 963 P2d 739 (1998). At
that time, existing case law held that evidence of actual
inconvenience, annoyance, or alarm to a substantial num-
ber 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.
Id. at 283. 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 incon-
venience, annoyance or alarm or that the ‘public’ nature of
inconvenience, annoyance or alarm is determined by refer-
ence to the number of persons actually so affected.” Id. at
287.
Viewing the facts in the light most favorable to the
state, a reasonable factfinder could conclude that by walk-
ing in the middle of one lane of a two-lane road at night,
defendant created a sufficient enough risk of public incon-
venience, annoyance, or alarm to support a conviction for
disorderly conduct by obstructing traffic. Although defen-
dant did not block all lanes of traffic, he correctly acknowl-
edges 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
Cite as 327 Or App 91 (2023) 99
committed the crime of disorderly conduct by obstructing
traffic and the trial court did not err when it denied defen-
dant’s MJOA.
Affirmed.