State v. Strandquist

644 P.2d 658 (1982) 57 Or.App. 404

STATE of Oregon, Appellant,
v.
Neil Victor STRANDQUIST, Respondent.

No. MC81-375; CA A22989.

Court of Appeals of Oregon.

Argued and Submitted March 15, 1982. Decided May 12, 1982.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

John Bennington, Asst. Public Defender, Coos County Public Defender, Coquille, argued the cause and filed the brief for respondent.

Before RICHARDSON, P.J., and THORNTON and VAN HOOMISSEN, JJ.

VAN HOOMISSEN, Judge.

The state appeals a district court order sustaining defendant's demurrer to a complaint charging him with resisting arrest. ORS 162.315.^[1]

Defendant demurred on the grounds that the complaint (1) is not definite and certain and (2) fails to state the acts constituting the offense in such a manner as to enable a person of common understanding to know what is intended. Defendant contends that ORS 162.315(2) defines "resist" in alternative forms, i.e., (1) the threat of physical force, (2) the use of physical force, (3) the threat of violence, (4) the act of violence, or (5) any other means that creates a substantial risk of physical injury to any person, and that it is not clear from the complaint which form the state is charging.

In State v. Crane, 46 Or. App. 547, 612 P.2d 735, rev. den. 289 Or. 903 (1980), we found ORS 162.315 constitutional in the face of a challenge that it is vague and overbroad. The issue then is whether the complaint is legally sufficient. We hold that it is and reverse and remand for trial.

The complaint alleges in relevant part that defendant

"* * * did unlawfully and intentionally resist Curtis M. Decker, a person known by said defendant to be a peace officer, in making an arrest * * *."

Defendant relies on State v. Sanders, 280 Or. 685, 572 P.2d 1307 (1977). The issue in Sanders was whether, in an indictment for burglary, the state must specify the crime it charges the defendant intended to commit when he allegedly unlawfully entered a building. The Supreme Court held that an indictment failing to specify the crime intended is subject to demurrer on the ground that it is not definite and certain. 280 Or. at 691, 572 P.2d 1307. The Sanders court gave three reasons for its holding: (1) the long practice in Oregon of specifying the intent which the defendant is charged with having at the time of the breaking and entering, (2) the unanimous view of other jurisdictions with comparable statutes that it is necessary to specify the intent and (3) the lack of any showing of prejudice to the state by continuing such practice. None of those reasons is applicable here.

The complaint charges defendant in the language of the statute with resisting arrest. The general rule is that a pleading in the language of the statute is sufficiently specific and will survive a demurrer. State v. Tracy, 246 Or. 349, 354, 425 P.2d 171 (1967); State v. Huennekens, 245 Or. 150, 154, 420 P.2d 384 (1966); State v. East, 31 Or. App. 743, 745, 571 P.2d 195 (1977).

Criminal discovery statutes, ORS 135.805 et seq., afford defendant the opportunity to obtain specific and detailed information about the state's theory of its case and the evidence it intends to produce at trial. We have recognized that the purposes that indictments and complaints are designed to serve in criminal cases are now served as well or better by discovery. State v. Shadley/Spencer/Rowe, 16 Or. App. 113, 199-20, 517 P.2d 324 (1973). The trial court erred when it sustained defendant's demurrer.

Reversed and remanded for trial.

NOTES

[1] ORS 162.315 provides:

"(1) A person commits the crime of resisting arrest if he intentionally resists a person known by him to be a peace officer in making an arrest.

"(2) ``Resists,' as used in this section, means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person.

"(3) It is no defense to a prosecution under this section that the peace officer lacked legal authority to make the arrest, provided he was acting under color of his official authority.

"(4) Resisting arrest is a Class A misdemeanor."