State v. McGuire ( 2024 )

760 October 30, 2024 No. 771
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
GWENDOLYN KAY McGUIRE,
Defendant-Appellant.
Tillamook County Circuit Court
23CR05450, 23CR08563; A181796 (Control), A181797
Jonathan R. Hill, Judge.
Submitted September 13, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, and Egan, Judge.
LAGESEN, C. J.
In Case Number 23CR08563, conviction on Count 2
reversed and remanded; remanded for resentencing; other-
wise affirmed. In Case Number 23CR05450, affirmed.
Nonprecedential Memo Op: 335 Or App 760 (2024) 761
LAGESEN, C. J.
In this consolidated appeal, defendant challenges
her conviction for second-degree disorderly conduct. After a
jury trial, defendant was convicted in Case No. 23CR05450
of failure to perform the duties of a driver, ORS 811.700
(Count 1), and she was convicted in Case No. 23CR08563 of
resisting arrest, ORS 162.315 (Count 1), and second-degree
disorderly conduct, ORS 166.025 (Count 2). At the close of
the state’s case, defendant moved for a judgment of acquittal
on all counts. The trial court denied the motion. On appeal,
the state concedes that there was insufficient evidence to
prove all the elements of second-degree disorderly conduct.
We accept the concession as well taken. We reverse the con-
viction on that count.1
“We review the denial of a motion for judgment of
acquittal to determine whether, viewing the evidence in the
light most favorable to the state, a rational factfinder could
have found all the elements of the charged crime beyond
a reasonable doubt.” State v. Curiel, 316 Or App 215, 218,
504 P3d 629 (2021). A person commits the crime of second-
degree disorderly conduct if, “with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating
a risk thereof,” the person “[o]bstructs vehicular or pedes-
trian traffic on a public way[.]” ORS 166.025(1)(d). A person
acts intentionally when the person “acts with a conscious
objective to cause the result or to engage in the conduct so
described.” ORS 161.085(7).
Here, in charging defendant with disorderly con-
duct, the state alleged that defendant acted intentionally.
At trial, Corporal Ault testified that defendant’s vehicle was
blocking access to a homeowner’s driveway. Defendant was
sleeping in the car when Ault arrived. Ault “knocked on the
window and attempted * * * to assist in getting the car at
least moved out of the driveway.” Defendant said the car
would not start. Defendant was not “cooperative” with Ault’s
efforts to move the car. Ault became aware that there was a
warrant for defendant’s arrest. Ault placed defendant under
arrest and physically removed her from the car.
1
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.
762 State v. McGuire
When defendant moved for a judgment of acquittal,
she challenged whether the state proved the intent element.
In denying the motion with respect to the charge of second-
degree disorderly conduct, the trial court relied on the evi-
dence that defendant’s car was blocking the homeowner’s
driveway. But the trial court did not address whether there
was evidence to show that defendant acted “with intent to
cause public inconvenience, annoyance, or alarm.” We agree
with the parties that there was no evidence to show that
defendant acted with the requisite intent. We therefore
reverse defendant’s conviction for second-degree disorderly
conduct.
In Case Number 23CR08563, conviction on Count 2
reversed and remanded; remanded for resentencing; other-
wise affirmed. In Case Number 23CR05450, affirmed.