State v. Pitts ( 2023 )

350
Submitted July 6, conviction on Count 1 reversed, remanded for entry of a con-
viction on Count 3 and for resentencing, otherwise affirmed August 9, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHARLES RANDAL PITTS,
aka Charles Randall Pitts,
Defendant-Appellant.
Multnomah County Circuit Court
19CR40942; A176685
535 P3d 349
Defendant was found guilty of two counts of interfering with public transpor-
tation (IPT), ORS 166.116 (Counts 1 and 3), based on conduct involving a TriMet
bus. The two verdicts were merged into a single conviction on Count 1. On appeal,
defendant assigned error to the denial of his motion for judgment of acquittal on
Count 1, which pertained to a verbal altercation with the bus driver inside the
bus. As relevant to Count 1, a person commits the crime of IPT under ORS 166.116
(1)(c) if the person, “[w]hile in or on a public transit vehicle or public transit station,
engages in disorderly conduct in the second degree as defined in ORS 166.025[,]”
and second-degree disorderly conduct includes engaging in “violent, tumultuous or
threatening behavior.” Held: The trial court erred in denying the motion for judg-
ment of acquittal on Count 1, because the evidence was legally insufficient to prove
that defendant engaged in “violent, tumultuous or threatening behavior” in the bus.
Conviction on Count 1 reversed; remanded for entry of a conviction on Count 3
and for resentencing; otherwise affirmed.
Amy M. Baggio, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Conviction on Count 1 reversed; remanded for entry of a con-
viction on Count 3 and for resentencing; otherwise affirmed.
Cite as 327 Or App 350 (2023) 351
AOYAGI, P. J.
Defendant was found guilty of two counts of interfer-
ing with public transportation (IPT), ORS 166.116 (Counts
1 and 3), based on an incident involving a TriMet bus.1 The
trial court merged the guilty verdicts, resulting in a single
conviction on Count 1. On appeal, in his sole assignment of
error, defendant challenges the denial of his motion for judg-
ment of acquittal (MJOA) on Count 1. We agree with defen-
dant that the evidence was legally insufficient to find him
guilty on Count 1. Accordingly, we reverse the conviction on
Count 1 and remand for entry of a conviction on Count 3.
On review of the denial of a motion for judgment of
acquittal, our task is to examine the evidence “in the light
most favorable to the state to determine whether a rational
trier of fact, accepting reasonable inferences and reasonable
credibility choices, could have found the essential element of
the crime beyond a reasonable doubt.” State v. Cunningham,
320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005(1995).
As relevant to Count 1, a person commits the crime
of IPT under ORS 166.116(1)(c) if the person, “[w]hile in or
on a public transit vehicle or public transit station, engages
in disorderly conduct in the second degree as defined in
ORS 166.025[.]” Here, the state alleged that, while “in” a
TriMet bus, defendant engaged in disorderly conduct in the
second degree as defined in ORS 166.025(1)(a), i.e., that “with
intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof,” he “[e]ngage[d] in fighting
or in violent, tumultuous or threatening behavior.”
There is no statutory definition of “violent, tumul-
tuous or threatening behavior.” State v. Atwood, 195 Or App
490, 495, 98 P3d 751 (2004). However, in case law, we have
narrowly construed that language so as not to infringe on
constitutionally protected speech. State v. Hosley, 282 Or App
880, 883, 388 P3d 387 (2016) (“Over the past 30 years, our
cases applying ORS 166.025(1)(a) have construed that stat-
ute in a manner that will not infringe upon constitutionally
1
Defendant was also charged with one count of menacing, ORS 163.190
(Count 2), but that count was dismissed on the state’s motion before trial.
352 State v. Pitts
protected speech.”). To engage in “violent, tumultuous or
threatening behavior,” a person must either use physical
force or engage in physical conduct immediately likely to
result in the use of physical force:
“The expressed intent of the legislature is to proscribe
behavior amounting to a breach of the peace. * * * We
construe the terms ‘fighting,’ ‘violent,’ ‘tumultuous,’ and
‘threatening’ to have their commonly understood referents
to physical force. We hold that ORS 166.025(1)(a) makes
unlawful only the use of physical force or physical conduct
which is immediately likely to produce the use of such force
and which is intended to create or recklessly creates a risk
of public inconvenience, annoyance or alarm.”
State v. Cantwell, 66 Or App 848, 853, 676 P2d 353, rev den,
297 Or 124 (1984).
In other words, ORS 166.025(1)(a) criminalizes only
physical conduct, not speech. “A person’s speech may provide
circumstantial context for determining whether or not the
person’s conduct was ‘immediately likely to result in physi-
cal force,’ but ORS 166.025(1)(a) does not reach ‘conduct that
is itself speech’ or that is ‘primarily speech.’ ” Hosley, 282 Or
App at 883 (quoting State v. Richardson, 277 Or App 112,
118-19, 370 P3d 548 (2016) (emphasis in original)); see also,
e.g., State ex rel Juv. Dept. v. Krieger, 177 Or App 156, 160-
61, 33 P3d 351 (2001) (“We find nothing in youth’s physi-
cal acts, separate from his speech, that constitutes the sort
of physical force or physical conduct likely to produce such
force that the disorderly conduct statute prohibits.”).
Here, the incident at issue took place when defen-
dant sought to ride a TriMet bus. After loading his bicy-
cle onto the bus’s exterior rack, defendant boarded the
bus, placed a weedwhacker that he was carrying on a seat
near the middle of the bus, then returned to the front of
the bus and paid his fare. The driver asked defendant to
remove a pair of gardening shears that were bungee-corded
to his bicycle, as they were at risk of falling off. Defendant
started down the stairs to exit the bus, then came back up.
He “immediately snapped” and started arguing with the
driver in a “raised” voice that was “very aggressive” but not
Cite as 327 Or App 350 (2023) 353
“necessarily yelling.”2 He was standing “maybe two feet”
from the driver, near the fare box and behind a yellow rail-
ing that separated the driver’s seat. A video shows defen-
dant leaning slightly forward while speaking and emphat-
ically pointing his finger toward the ground several times.
The driver understood defendant to be upset about the
driver “telling him what to do” and “looked at it as TriMet
is controlling him.” Defendant was saying “something about
TriMet” and “was complaining about them.” Although defen-
dant did not say anything threatening, the driver immedi-
ately felt concerned for his personal safety, because he had
never had a passenger react like that. The driver wasn’t
“necessarily scared” but was “very intimidated,” and “it was
pretty uncomfortable.”3
Defendant argued with the bus driver for approxi-
mately 10 seconds, and then exited the bus to comply with
his request. The driver closed the bus door and called dis-
patch. Once he had the gardening shears off his bike, defen-
dant sought to reboard the bus, but the driver kept the door
closed and would not let him in. Defendant stood outside
the closed door, then went around the front of the bus and,
for approximately 10 to 15 minutes, stood or sat in a man-
ner that prevented the bus from leaving (as well as yelling
and gesturing at the driver). At some point, the bus driver
removed defendant’s weedwhacker from the bus and placed
it on the curb. Also at some point, defendant, who was “very
agitated,” “t[ook] one of the shears off and was like threat-
ening to hit the bus or me or whatever through the window.”
The trial court relied heavily on defendant’s shear-
waving outside the bus in denying the MJOA on Count 1.
2
The bus driver initially referred to defendant “yelling” at him, but, when
asked specifically about the volume of defendant’s voice while on the bus, the
driver clarified, “I wouldn’t say he was necessarily yelling at me at the time, but
it was raised, very aggressive.”
3
The driver, who had worked for TriMet for nearly seven years, testified:
“Q: Did the Defendant threaten you at all while on the bus?
“A: Not on the bus, no. Not on the bus.
“Q: Did you ever feel in danger of your personal safety?
“A: I did almost immediately, because I’ve never had a response like that.
I wouldn’t say I was necessarily scared, but it—I felt very intimidated, and I
was by myself. So yeah, it was pretty uncomfortable.”
354 State v. Pitts
However, defendant argues, and the state implicitly con-
cedes, that defendant’s conduct outside the bus is not rele-
vant to Count 1, because ORS 166.116(1)(c) is limited to disor-
derly conduct “in or on a public transit vehicle,” and Count 1
charged defendant with disorderly conduct “in a public tran-
sit vehicle.” We agree and therefore limit our analysis to
defendant’s conduct inside the bus.4
Defendant’s conduct inside the bus was primarily
speech, and we agree with defendant that the nonspeech
aspect of his conduct was legally insufficient to qualify as
“violent, tumultuous or threatening behavior” under the
standard articulated in Cantwell. Defendant did not make
physical contact with the driver or otherwise use any physi-
cal force while inside the bus. There also is no evidence that
the driver or anyone else was “immediately likely” to use
physical force against defendant in response to defendant’s
conduct inside the bus. See Atwood, 195 Or App at 498 (leav-
ing open whether Cantwell’s standard of “immediately likely
to produce the use of [physical] force” refers only to phys-
ical force immediately likely to be used by “the defendant
himself or herself” or also encompasses physical force that
is immediately likely to be used by the object of the defen-
dant’s conduct or by a witness to it (brackets in original)); see
also State v. Wade, 278 Or App 669, 673, 377 P3d 660 (2016)
(noting that that question remains open but that it need not
be resolved until a case arises in which it would affect the
outcome).
Thus, the only question here is whether the evidence
was legally sufficient to establish that defendant was “imme-
diately likely” to use physical force against the bus driver.
We conclude that it was not. There was certainly ample evi-
dence that defendant was angry about the request that he
4
In denying the MJOA on Count 1, the trial court expressly cited the evi-
dence that defendant had “raised the shears and acted in a way that the driver
interpreted as a threat to smash the window,” which the court described as being
“not speech” but “conduct” and “conduct sufficient for the State to satisfy its bur-
den at the MJOA stage.” Shortly thereafter, defendant reminded the court that
the disorderly conduct had to occur “in or on a bus, not near a bus,” as relevant to
the MJOA, but the court did not reconsider its ruling. The court did ultimately
instruct the jury, however, that, as to Count 1, the state had to prove that defen-
dant was “in or on a public transit vehicle while engaging in disorderly conduct.”
The state does not contend that there is any preservation issue, and we are satis-
fied that the principles of preservation were adequately served.
Cite as 327 Or App 350 (2023) 355
remove the gardening shears from his bicycle and that he
expressed that anger by arguing loudly with the driver in
an aggressive manner. The angry interaction inside the bus
was brief, however, and defendant exited the bus before any-
thing occurred that would allow a finding that defendant
was “immediately likely” to use physical force against the
bus driver.
This case is unlike prior cases in which we have held
that sufficient evidence existed to prove “violent, tumultuous
or threatening behavior” for purposes of ORS 166.025(1)(a).
For example, in State ex rel Juv. Dept. v. Saechao, 167 Or
App 227, 234, 236-37, 2 P3d 935, rev den, 331 Or 283 (2000),
the youth joined a group of boys to threaten and surround
the victim, preventing the victim’s escape while another boy
attacked him. In State v. Davies, 195 Or App 534, 536-37,
98 P3d 757 (2004), the defendant aggressively and physi-
cally confronted store employees who had asked him to
leave, including poking or hitting an employee in the chest
and striking one or more employees, after which “[a] fracas
ensued, resulting in various injuries to several employees.”
And, in State v. Miller, 226 Or App 314, 316-18, 203 P3d 319
(2009), the defendant kicked a three-foot-high metal sign
with enough force to send it flying from the sidewalk into
the middle of a four-lane road.
By contrast, we have reversed convictions for
second-degree disorderly conduct where the evidence was
insufficient to prove “violent, tumultuous or threatening
behavior.” No prior case has had similar enough facts to be
directly analogous to this one, but the present situation has
at least some similarities to Atwood.
In Atwood, the district secretary at a school told
the defendant’s daughter that she needed to “improve[ ] her
attitude” if she wanted to use the phone in the school office
to call home after missing the bus. 195 Or App at 492. The
defendant soon came to the school office and demanded to
see both the district secretary and the principal. Id. at 493.
The defendant and the principal ended up talking outside
the closed office door, while the receptionist and the district
secretary hid inside the office. Id. The defendant “appeared
upset,” expressed his concern about the district secretary,
356 State v. Pitts
and asked to see her. Id. The principal went into the office
alone, then returned and lied that the district secretary was
gone for the day. Id. At that point, the defendant “blew up”
and “became very agitated and upset.” Id. He “brought up his
fists” and pointed his finger at the principal, and he stated
in a “loud” voice that he “was going to take off [the district
secretary’s] head and shit down her throat.” Id. The prin-
cipal was concerned for his staff’s safety; he also was con-
cerned that, if the district secretary came out of the office,
his own safety and that of others “would have been in jeop-
ardy.” Id. The principal asked the defendant to leave. Id. As
he left, the defendant turned and, “at the top of his lungs,”
screamed, “You let her know I’m going to rip off her fucking
head and shit down her throat.” Id. at 493-94. Several teach-
ers came out of their classrooms to see what was happening,
and much of the school business was halted for the day. Id.
at 494.
The defendant in Atwood was charged with men-
acing and second-degree disorderly conduct. Id. As relevant
here, he moved for a judgment of acquittal on the disorderly
conduct count that was based on “tumultuous and threat-
ening behavior,” and the trial court denied the motion. Id.
at 494-95. We reversed. Considering the totality of the cir-
cumstances, we held that the defendant’s physical conduct
(raising his fists and pointing his finger at the principal)—
considered in the context of his “angry affect, the source of
that anger, and his statement”—was “insufficient to support
a finding that defendant had engaged in physical conduct
that was immediately likely to produce the use of physical
force by defendant.” Id. at 499 (internal quotation marks
and brackets omitted).
This case differs from Atwood in some regards. A
difference that favors the state is that, in Atwood, the defen-
dant was primarily angry at the district secretary, who was
behind a closed door and out of sight, whereas, in this case,
defendant was angry with TriMet and the bus driver in front
of him as a representative of TriMet. Defendant’s anger was
therefore at least somewhat more directed at the bus driver
personally than the Atwood defendant’s anger was directed
at the principal. There are also differences, however, that
favor defendant. Whereas the Atwood defendant put up his
Cite as 327 Or App 350 (2023) 357
fists, pointed his finger at the principal, and screamed at the
top of his lungs a threat of physical violence, defendant in
this case did not put up his fists, scream, or make any verbal
threats.
On the whole, although no existing published case
has facts closely similar to this one, this case is more in
line with Atwood than it is with the cases in which we have
affirmed convictions for second-degree disorderly conduct
based on “violent, tumultuous or threatening behavior.”
In sum, no one wants to be confronted by an angry
stranger, but not all angry behavior qualifies as disorderly
conduct in the second degree. To support a finding that
someone engaged in “violent, tumultuous, or threatening
behavior,” the evidence must be sufficient to establish either
that the defendant actually used physical force or that the
defendant engaged in physical conduct that was immedi-
ately likely to result in the defendant’s use of physical force
or, possibly, someone else’s use of physical force. Speech may
be considered only as circumstantial context for the defen-
dant’s physical conduct. Here, the evidence was insufficient
to establish that defendant’s physical conduct inside the bus
met the legal standard. The court therefore erred in denying
the MJOA on Count 1. Accordingly, we reverse defendant’s
conviction on Count 1, and we remand for entry of a convic-
tion on Count 3.5
Conviction on Count 1 reversed; remanded for entry
of a conviction on Count 3 and for resentencing; otherwise
affirmed.
5
As previously noted, defendant was found guilty on Count 3, but that ver-
dict was merged with the guilty verdict on Count 1, resulting in a single convic-
tion on Count 1. Count 3 was based on defendant’s conduct outside the bus that
prevented its departure for approximately 10 to 15 minutes, i.e., standing in front
of the bus and sitting on the bike rack. See ORS 166.116(1)(b) (a person commits
IPT if a person “[i]ntentionally or knowingly interferes with the provision or use
of public transportation services by, among other things, interfering with the
movement of, or access to, public transit vehicles”).