State v. McClure

704 July 10, 2014 No. 46
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
CURTIS DWAYNE McCLURE,
Petitioner on Review.
(CC 090850307; CA A143705; SC S061434)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 11, 2014.
Jedediah Peterson, Deputy Public Defender, Salem,
argued the case and filed the brief for the petitioner on
review. With him on the brief was Peter Gartlan, Chief
Defender.
Jona Maukonen, Assistant Attorney General, Salem,
argued the case and filed the brief for the respondent on
review. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
WALTERS, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Defendant petitioned for review of a Court of Appeals’ decision affirming the
trial court’s denial of defendant’s motion for judgment of acquittal and admission
of evidence of defendant’s previous conviction for resisting arrest. The Court of
Appeals held that an arrest for a parole violation qualifies as an “arrest” for the
purposes of ORS 162.315. Held: The decision of the Court of Appeals is affirmed.
The trial court correctly denied defendant’s motion for acquittal. The phrase
“resisting arrest” as used in ORS 162.315 means resisting “actual or constructive
restraint” that is more than a stop, whether or not that restraint is imposed for
the purpose of charging a person with an offense. Although the trial court erred
in admitting evidence of defendant’s previous conviction, that error was harm-
less. The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed.
______________
*  Appeal from Multnomah County Circuit Court, Leslie M. Roberts, Judge.
256 Or App 200, 300 P3d 210 (2013).
Cite as 355 Or 704 (2014) 705
WALTERS, J.
In this criminal case, defendant was convicted of
resisting arrest for violating the terms of his parole. We
conclude, as did the trial court and the Court of Appeals,
that an arrest for a parole violation qualifies as an arrest
for purposes of ORS 162.315—the resisting arrest statute—
and affirm.
Because the jury found defendant guilty, we pres-
ent the facts in the light most favorable to the state. State
v. Lewis, 352 Or 626, 628, 290 P3d 288 (2012). In 2009,
defendant was walking in Portland’s Old Town when two
officers stopped him, engaged him in conversation, and
asked for his name. Defendant complied, asked if he was
free to leave, and, after receiving a positive response, did
so. One officer followed defendant at a distance while the
other officer conducted a warrant check, which revealed an
outstanding warrant for defendant’s arrest for a parole vio-
lation.1 The officers then intercepted defendant, informed
him that there was a warrant for his arrest, and began to
restrain defendant. Defendant tightened his arms, grasped
at one officer’s fingers, and, yelling and screaming, held
onto a utility pole. The officers attempted a “hair hold take
down,” and one officer struck defendant in the torso in
an attempt to force defendant to the ground. The officers
also repeatedly instructed defendant to “stop resisting.”
Notwithstanding the officers’ actions and instructions, it
was only with the assistance of private security officers
that the officers were able to force defendant to the ground
and handcuff him.
Defendant was charged with resisting arrest under
ORS 162.315, which provides, in part:
“(1)  A person commits the crime of resisting arrest if
the person intentionally resists a person known by the per-
son to be a peace officer or parole and probation officer in
making an arrest.
1
It is not clear from the record whether the officers knew that the warrant
was for a parole violation. The officers testified only that the computer indicated
an “outstanding warrant.”
706 State v. McClure
“(2)  As used in this section:
“(a)  ‘Arrest’ has the meaning given that term in ORS
133.005 and includes, but is not limited to, the booking
process.
“* * * * *
“(3)  It is no defense to a prosecution under this sec-
tion that the peace officer or parole and probation officer
lacked legal authority to make the arrest or book the per-
son, provided the officer was acting under color of official
authority.”
(Emphases added.) ORS 133.005 defines “arrest” as follows:
“As used in ORS 133.005 * * *, unless the context requires
otherwise:
“(1)  ‘Arrest’ means to place a person under actual or
constructive restraint or to take a person into custody for the
purpose of charging that person with an offense. A ‘stop’ as
authorized under ORS 131.605 to 131.625 is not an arrest.”
(Emphasis added.) Finally, an “offense” is defined in ORS
161.505 as
“conduct for which a sentence to a term of imprisonment
or to a fine is provided by any law of this state or by any
law or ordinance of a political subdivision of this state. An
offense is either a crime, as described in ORS 161.515, or a
violation, as described in ORS 153.008.”
At trial, defendant filed a motion for acquittal rely-
ing on the italicized phrases in those statutes. Defendant
cited a Court of Appeals case, State v. Pierce, 226 Or App 224,
229, 203 P3d 290, rev den, 346 Or 213 (2009), for the prop-
osition that “arrest,” as used in ORS 162.315 and defined in
ORS 133.005, requires that a person be restrained or placed
in custody “for the purpose of charging that person with an
offense.” Defendant argued that, because a parole violation
is not an “offense” as defined in ORS 161.505 and because
he was restrained for a parole violation, the officers had not
placed him under restraint “for the purpose of charging
him with an offense” and therefore had not “arrested” him
within the meaning of ORS 162.315. The trial court denied
defendant’s motion, concluding that a parole violation was a
“part of the prosecution of the [underlying] offense.”
Cite as 355 Or 704 (2014) 707
The jury convicted defendant and the Court of
Appeals affirmed his conviction. State v. McClure, 256 Or
App 200, 300 P3d 210 (2013). The court concluded that,
although an arrest for a parole violation is not an arrest “for
the purpose of charging [defendant] with an offense,” the
legislature nonetheless intended that such an arrest qualify
as an “arrest” for the purposes of ORS 162.315. Id. at 204.
Judge Sercombe dissented. He viewed the majority’s inter-
pretation of ORS 162.315 as contrary to the text of the stat-
ute and would have held that ORS 162.315 does not apply
unless the individual is being arrested for an “offense.” Id.
at 211, 221 (Sercombe, J., dissenting).
In this court, defendant’s statutory argument is
again straightforward. As noted, ORS 162.315(1) provides
that a person resists “arrest” if that person “intentionally
resists *  * a peace officer or parole and probation officer
*
in making an arrest.” ORS 162.315(2)(a) defines “arrest” as
having “the meaning given that term in ORS 133.005.” ORS
133.005, in turn, provides that the term “arrest” means “to
place a person under actual or constructive restraint or to
take a person into custody for the purpose of charging that
person with an offense.” As defendant argues and the state
acknowledges, a probation violation is neither a crime nor a
violation, and thus is not an offense. Therefore, defendant
argues, because he was restrained for the purpose of revok-
ing his probation and not “for the purpose of charging [him]
with an offense,” he did not resist “arrest” as that term is
defined in ORS 133.005(1) and could not be convicted under
ORS 162.315.
The state sees two points of vulnerability in defen-
dant’s analysis. First, the state takes issue with defendant’s
construction of ORS 133.005(1). As noted, that statute
defines “arrest” using two disjunctive clauses: (1) “to place
a person under actual or constructive restraint,” or (2) “to
take a person into custody.” Those clauses are followed by
a qualifying phrase: “for the purpose of charging that per-
son with an offense.” The state argues that the qualifying
phrase modifies only the second clause and therefore that
an “arrest” may occur under ORS 133.005(1) when a per-
son is actually or constructively restrained, even if the pur-
pose of the restraint is not to charge the person with an
708 State v. McClure
offense. Alternatively, the state contends that ORS 133.005
includes the introductory phrase “unless context requires
otherwise.” Therefore, the state argues, the context of the
resisting arrest statute requires that ORS 133.005(1) be
interpreted to encompass arrest for a probation violation.
We begin our analysis with the text of ORS 133.005(1)
and the state’s argument that, based on the “doctrine of
the last antecedent,” the qualifying phrase “for the pur-
pose of charging that person with an offense” modifies only
the immediately preceding clause “to take a person into
custody.” That doctrine instructs that, “where no contrary
intention appears,” referential and qualifying words and
phrases refer solely to “ ‘the last word, phrase, or clause that
can be made an antecedent without impairing the meaning
of the sentence.’ ” State v. Webb, 324 Or 380, 386, 927 P2d 79
(1996) (quoting Norman J. Singer, 2A Sutherland Statutory
Construction § 47.33 at 270 (5th ed 1992)). In this case,
because other evidence of legislative intent is available, we
turn to the enactment history of the pertinent statutes.
The legislature enacted the resisting arrest statute,
ORS 162.315, in 1971. Or Laws 1971, ch 743, § 206. At that
time, the resisting arrest statute did not include a definition
of “arrest.” However, two other statutes did define that term—
former ORS 133.210 and former ORS 133.250. In 1973, the
legislature repealed those two statutes and adopted a new
definition of “arrest” codified at ORS 133.005(1). Or Laws
1973, ch 836, § 62. Then, in 1997, the legislature amended
the resisting arrest statute to define the term “arrest” as
used in that statute by reference to the definition of “arrest”
in ORS 133.005(1). Or Laws 1997, ch 749, § 3. It is that
definition that is the focus of our inquiry, and we therefore
think it helpful to consider the text and transformation of its
predecessors in greater detail.
The two predecessors to ORS 133.005—former ORS
133.210 and former ORS 133.250—both date to the Deady
Code. Former ORS 133.210 defined “arrest” as “the taking
of a person into custody, that he may be held to answer for
a crime.” General Laws of Oregon, Crim Code, ch XXXVI,
§ 360, p 504 (Deady 1845-1864); OCLA § 26-1522; ORS
133.210 (1969). Former ORS 133.250 provided that “[a]n
Cite as 355 Or 704 (2014) 709
arrest is made by an actual restraint of the person of the
defendant, or by his submission to the custody of the offi-
cer.” General Laws of Oregon, Crim Code, ch XXXVI, § 364,
p 504; OCLA § 26-1526; ORS 133.250 (1969). Thus, former
ORS 133.250 did not require that the officer’s restraint or
the arrestee’s submission to custody be for any particular
purpose. Only former ORS 133.210, which defined arrest as
“the taking of a person into custody,” included the qualify-
ing phrase “that he may be held to answer for a crime.”
In 1973, the legislature repealed former ORS
133.210 and former ORS 133.250 and replaced them with one
statute—ORS 133.005. The Commentary to the Criminal
Procedure Code provided: “ ‘Arrest’ is derived, in part, from
ORS 133.210 and 133.250, but specifically includes ‘construc-
tive’ restraint and, with respect to the purpose of custody,
uses the phrase, ‘charging him with an offense’ in place of
‘holding to answer for a crime.’  Commentary to Criminal
”
Law Revision Commission Proposed Oregon Criminal Proce-
dure Code, Final Draft and Report § 89, 52 (November 1972)
(Commentary to the Criminal Procedure Code).2 The leg-
islative purpose was not to change the substantive mean-
ing of the term “arrest,” but to make its definition “easier to
understand.” See id. (“The single definition of ‘arrest’ should
be easier to understand than the existing double definition
found in the two separate statutes.”).
By 1997, when the legislature amended ORS 162.315
to provide that “ ‘arrest’ has the meaning given that term
in ORS 133.005,” this court had discussed ORS 133.005(1)
in two cases that we consider informative. See Liberty
Northwest Ins. Corp., Inc. v. Watkins, 347 Or 687, 692, 227
P3d 1134 (2010) (“As part of the first level of analysis, this
court considers its prior interpretations of the statute.”).3
The first of those cases was State v. Groda, 285 Or 321, 591
P2d 1354 (1979). There, officers had detained and searched
the defendant, taken his car keys, unlocked his car, removed
2
“Legislative history includes the commentary to the Oregon Criminal Pro-
cedure Code.” State ex rel Turner v. Frankel, 322 Or 363, 374, 908 P2d 293 (1995).
3
The state argues that State v. Mendacino, 288 Or 231, 603 P2d 1376 (1980),
also includes a pertinent discussion of ORS 133.005(1), but we agree with defen-
dant that the passing mention of the statute in that case is not helpful in this one.
710 State v. McClure
and searched a briefcase, found drugs, and then had for-
mally arrested him. The question presented was whether
the unwarranted search was lawful as a search incident to
arrest, even though the formal arrest did not occur until
after the search. The court acknowledged that, at the time
of the search, the defendant had not been “formally arrested
for the purpose of ‘charging him with an offense.’  Id. at”
325. Nevertheless, the court held that the defendant had
been arrested “as that word is defined in ORS 133.005(1),”
because, “when the officers searched the defendant, they
placed him ‘under actual * * * restraint.’ ” Id. (ellipsis in orig-
inal).
In reaching that result, the court quoted approv-
ingly from an earlier case that had reasoned that “ ‘it is diffi-
cult to explain how the police can search an individual with-
out arresting him, since any substantial detention without
his consent would fit the definition of an arrest found in such
criminal cases as State v. Christensen, 151 Or 529 [1935].’ ”
Groda, 285 Or at 325 (quoting State v. Krogness, 238 Or 135,
146-47, 388 P2d 120 (1964)). The definition of “arrest” to
which the court referred in Christensen was that provided
in former ORS 133.250: “an actual restraint of the person of
the defendant, or *  * his submission to the custody of the
*
officer.” Thus, in Groda, the court understood ORS 133.005
to be consistent with former ORS 133.250 and to mean that
an officer arrests a person both when the officer in fact sub-
stantially restrains that person’s liberty and when the offi-
cer formally informs the person that the person is under
arrest.
Similarly, in State v. Heintz, 286 Or 239, 594 P2d
385 (1979), the court held that the drawing of a defendant’s
blood was a reasonable search incident to arrest even though
the defendant was unconscious at the time of the blood draw
and had not been formally arrested. The court cited Groda
and ORS 133.005(1) in support of its conclusion that “an
arrest includes the placing of a person ‘under actual or con-
structive restraint.’ ” Id. at 248.
What we take away from the enactment history of
the pertinent statutes and this court’s decisions in Groda
and Heintz is that, under ORS 133.005(1), an “arrest” may
Cite as 355 Or 704 (2014) 711
occur in two distinct circumstances—when an officer for-
mally takes a person into custody or when an officer actu-
ally restrains a person. Our understanding is consistent
with the state’s argument that the legislature intended the
phrase “for the purpose of charging that person with an
offense” to qualify only the former circumstance. However,
the question remains whether that history also supports
defendant’s contrary argument.
Defendant contends that the legislature used the
qualifying phrase to modify both preceding clauses and
to qualify both circumstances. ORS 133.005(1) specifi-
cally excludes “stop[s]” from its definition of “arrest,” and
defendant argues that the legislature intended to define
an “arrest” (as opposed to a “stop”) as a restraint that is
“for the purpose of charging [a] person with an offense” to
distinguish stops from arrests. Because an arrest requires
probable cause to believe that a person has committed or is
committing an offense, defendant argues that any restraint
that constitutes an arrest must be made for the purpose of
charging such an offense. After all, defendant points out,
although officers may restrain and search a person and
therefore “arrest” a person before they “formally arrest”
that person, they must have probable cause to believe that
an offense has been or is being committed. Heintz, 286 Or
at 249; Groda, 285 Or at 326. Defendant argues that, to
make the definition of “arrest” consistent with its exclusion
of “stop[s],” an officer’s restraint, whether de facto or de jure,
must be supported by probable cause and “for the purpose of
charging that person with an offense.”
We are not persuaded. ORS 133.005(1) provides that
a “stop” authorized under ORS 131.605 through 131.625 is
not an “arrest.” ORS 131.605(7) defines a “stop” as “a tempo-
rary restraint of a person’s liberty by a peace officer.”4 ORS
131.615(2) provides that a stop may extend for “no longer
than a reasonable time.” Thus, for the purposes of ORS
133.005(1), the key distinction between a stop and an arrest
is not whether probable cause is required, but the duration
4
At the time of defendant’s arrest, subsection (7) of ORS 131.605 was num-
bered as subsection (6); the statute was renumbered in 2011, Or Laws 2011,
ch 506, § 6, but the substance of the subsection did not change.
712 State v. McClure
of the restraint. Although defendant is correct that officers
who make arrests must, and generally will, have probable
cause to believe that an offense has been or is being commit-
ted, that does not mean that, in enacting ORS 133.005(1),
the legislature did not intend to define “arrest” more broadly.
This case—in which the officer restrained defendant for the
purpose of charging him with a probation violation rather
than an offense—is but one illustration of the circumstances
in which an officer may restrain a person without probable
cause or for a different purpose.
Subsection (3) of ORS 162.315 provides another illus-
tration. Subsection (3) provides that an individual who
resists an arrest is guilty of an offense, regardless of the
legality of the arrest: “It is no defense to a prosecution under
this section that the [arresting] officer lacked legal author-
ity to make the arrest *  *, provided the officer was acting
*
under color of official authority.” The Commentary to the
Criminal Code stated that that subsection “negatives the
defense that the arrest resisted was unlawful, provided
the peace officer is acting ‘under color of his official author-
ity.’  Commentary to Criminal Law Revision Commission
”
Proposed Oregon Criminal Code, Final Draft and Report
§ 206, 204 (July 1970) (Commentary to the Criminal Code).5
The Commentary noted that that provision “departs from
common law and the American majority view governing the
right to resist a lawful arrest.” Id. The Commentary described
the “prevailing rule” as allowing “reasonable resistance to
an unlawful arrest,” but contended that that rule was not a
“desirable means of challenging arrests made under color of
law,” because such resistance “threaten[s]” to create “[c]ivil
disorder and disrespect for the law” and because resistance
to even an unlawful arrest involves a “threat to society posed
by violent street confrontations between private citizens and
the police.” Id. The Commentary recommended, instead,
that citizens who were unlawfully arrested have recourse
to “traditional tort remedies, which today have been greatly
liberalized in favor of the individual citizen.” Id. at 204-05.
5
We consult the Commentary to the Criminal Code as part of our analysis
of the legislative history of the statutes. See State v. Wolleat, 338 Or 469, 475-76,
111 P3d 1131 (2005) (looking to Commentary to the Criminal Code as source of
legislative history); State v. Garcia, 288 Or 413, 416, 605 P2d 671 (1980) (same).
Cite as 355 Or 704 (2014) 713
The Commentary concluded that, in “prohibiting by statute
the forcible resistance of an arrest made under color of law,
Oregon will enter the mainstream of progressive legisla-
tion.” Id. at 205.6
In enacting ORS 162.135(3), the legislature pro-
hibited resistance to arrest even if the arrest is unlawful.
Thus, at that time, the legislature must have understood
ORS 133.005(1) to define “arrest” to include unlawful
restraint, such as arrest without probable cause. To con-
strue ORS 133.005(1) as inapplicable when an officer acts
without the “purpose of charging [a] person with an offense”
would be inconsistent with the legislature’s intent in enact-
ing subsection (3). If we instead interpret ORS 133.005(1) to
define “arrest” to include all instances, other than stops, in
which an officer places a person under actual or constructive
restraint, our interpretation more closely aligns with ORS
162.315(3).7
Thus, the text, context, and legislative history of
ORS 133.005 convince us that the legislature did not intend
the qualifying phrase “for the purpose of charging that
6
Also in 1971, the legislature enacted ORS 161.260, which provides that a
“person may not use physical force to resist an arrest by a peace officer who is
known or reasonably appears to be a peace officer, whether the arrest is lawful or
unlawful.” Or Laws 1971, ch 743, § 32. See State v. Oliphant, 347 Or 175, 192 n 15,
218 P3d 1281 (2009) (noting that, prior to the enactment of ORS 161.260, “Oregon
law gave a person the right to use force to resist an ‘unlawful’ arrest” and that the
“primary concern of the drafters was to discourage people from engaging arrest-
ing officers in combat because of differences of opinion concerning the validity of
an arrest”).
7
That interpretation also is more consistent with the legislative history of
the resisting arrest statute. As noted, the Commentary to the Criminal Code
stated that ORS 162.315 was intended to curtail the threat of “[c]ivil disorder
and disrespect for the law” posed by resistance to officers acting under color of
law. See Commentary to the Criminal Code at 204. By imposing criminal liability
on those who resist even unlawful arrests, the legislature indicated that ORS
162.315 was intended to sweep broadly to fulfill that purpose, an intent that is
counter to defendant’s restrictive interpretation of ORS 133.005(1). Additional
support for that view is found in the legislature’s most recent amendments to
ORS 162.315. In 2005, the legislature provided that it is a crime to resist parole
and probation officers, as well as police officers. See Or Laws 2005, ch 668, § 2
(a person resists arrest by resisting “a person known by the person to be a peace
officer or parole and probation officer in making an arrest”). Although that
amendment changed the description of the persons who may make an arrest for
purposes of the resisting arrest statute, not the definition of the term “arrest,”
the amendment indicates a legislative intent to make the resisting arrest statute
broadly applicable.
714 State v. McClure
person with an offense” to limit the clause “place a person
under actual or constructive restraint.” We conclude that, as
used in ORS 162.315, the legislature intended the phrase
“resisting arrest” to mean resisting “actual or constructive
restraint” that is more than a stop, whether or not that
restraint is imposed for the purpose of charging a person
with an offense.8 We therefore conclude that defendant was
appropriately charged with resisting arrest and that the
trial court correctly denied his motion for acquittal.9
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
8
We therefore need not reach the state’s alternative argument based on the
introductory phrase to the definition of “arrest” in ORS 133.005—“unless context
requires otherwise.”
9
We also conclude, as the state concedes, that the trial court erred in admit-
ting evidence of defendant’s prior conviction for resisting arrest. See State v.
Leistiko, 352 Or 172, 186, 282 P3d 857, adh’d to as modified on recons, 352 Or
622, 292 P3d 522 (2012) (discussing State v. Johns, 301 Or 535, 555, 725 P2d
312 (1986), and emphasizing that, to prove intent through a prior bad act, a
“simple, unremarkable single instance of prior conduct probably will not qualify,
but a complex act requiring several steps, particularly premeditated, may well
qualify.”). However, on the particular facts of this case, we nevertheless affirm,
because the trial court’s error was harmless. See State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003) (Oregon constitution requires affirmance despite error when
there is little likelihood that the particular error affected the verdict).