672 August 3, 2017 No. 38

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

CATHERINE E. GARCIA,

Respondent on Review.

(CC 120545265; CA A152842; SC S064236)

On review from the Court of Appeals.*

Argued and submitted March 6, 2017, at Lewis & Clark 

College, Northwestern School of Law School, Portland, 

Oregon.

Peenesh H. Shaw, Assistant Attorney General, Salem, 

argued the cause and filed the brief for petitioner on review. 

Also on the brief were Ellen F. Rosenblum, Attorney General, 

and Benjamin Gutman, Solicitor General.

Rond Chananudech, Deputy Public Defender, Salem, 

argued the cause and filed the brief for respondent on review. 

Also on the brief was Ernest G. Lannet, Chief Defender, 

Office of Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, and Nakamoto, Justices.**

NAKAMOTO, J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is affirmed.

______________

** Appeal from Multnomah County Circuit Court, Adrienne C. Nelson, 

Judge. 278 Or App 639, 377 P3d 596 (2016).

** Baldwin, J., retired March 31, 2017, and did not participate in the decision 

of this case. Brewer, J., retired June 30, 2017, and did not participate in the decision of this case. Flynn and Duncan, JJ., did not participate in the consideration 

or decision of this case.
Cite as 361 Or 672 (2017) 673

Case Summary: Defendant was charged with two counts of interfering with 

a peace officer and with resisting arrest. However, by its own terms, the statute defining interfering with a peace officer, ORS 162.247, “does not apply” in 

situations in which a person is “engaging in *** [a]ctivity that would constitute resisting arrest” as defined by statute. Based on that exception, defendant 

argued at trial that the state could not charge her with interfering because it 

had also charged her with resisting arrest for the same acts. The trial court 

disagreed and denied defendant’s motion for judgment of acquittal on the interfering counts. Concluding that ORS 162.247(3)(a) prohibited the type of double 

charging present here, the Court of Appeals reversed. Held: (1) The state is not 

precluded by ORS 162.247(3) from alleging interfering and resisting arrest as 

alternative charges for the same actions. (2) When a defendant contests culpability for resisting arrest, the trial court should submit both charges to the jury with 

an appropriate instruction or verdict form.

The decision of the Court of Appeals is reversed. The judgment of the circuit 

court is affirmed.
674 State v. Garcia

NAKAMOTO, J.

Defendant was charged with two counts of interfering with a peace officer under ORS 162.247 and one count 

of resisting arrest under ORS 162.315 for her actions to 

prevent officers from arresting her boyfriend at a political 

march.1

 Pursuant to ORS 162.247(3)(a), the statute defining the offense of interfering with a peace officer “does not 

apply” when the defendant is “engaging in ** * [a]ctivity 

that would constitute resisting arrest * * *.” At trial, defendant moved for a judgment of acquittal on the interfering 

counts, arguing that ORS 162.247(3) prohibited the state 

from charging her with both interfering and resisting arrest 

for the same acts. The trial court denied the motion, and the 

Court of Appeals reversed, agreeing with defendant that the 

legislature had intended to preclude double charging. State 

v. Garcia, 278 Or App 639, 649-50, 377 P3d 596 (2016).

On review, we are asked to determine the import 

of ORS 162.247(3)(a) and whether the trial court erred by 

denying defendant’s motion and submitting both sets of 

charges to the jury when, as the parties agree, the statute would not permit conviction on both. We conclude that 

ORS 162.247(3)(a) does not preclude the state from alleging 

interfering and resisting arrest as alternative charges, even 

when based on the same acts, and, when the defendant disputes the charges, that the trial court should submit both 

charges to the jury with an appropriate instruction or verdict form. In this case, the trial court properly submitted all 

the charges to the jury. Therefore, we reverse the decision of 

the Court of Appeals and affirm the judgment of the circuit 

court.

I. BACKGROUND

We take the facts from the Court of Appeals opinion 

as supplemented by the trial court record. When, as here, 

the trial court denies a defendant’s motion for judgment of 

acquittal, we view the facts in the light most favorable to 

the state. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 

1 Throughout this opinion, unless otherwise noted, we cite the 2011 versions 

of the relevant statutes, which were the versions in force when the events in this 

case took place.
Cite as 361 Or 672 (2017) 675

(1994), cert den, 514 US 1005, 115 S Ct 1317, 131 L Ed 2d 198 

(1995).

Defendant and her boyfriend, Storaasli, participated in a May Day march in Portland. At a certain point, 

the permit for the march lapsed and the marchers were 

directed to leave the streets. Storaasli disregarded the 

order and remained in the streets to dance. As responding police officers sought to subdue Storaasli and to arrest 

him, defendant ran towards him. In response, an officer 

punched defendant in the chest, causing her to fall to the 

ground. Recovering, defendant proceeded to insert herself 

between the officers and Storaasli by wrapping her arms 

around Storaasli’s waist. While doing so, defendant called 

to other marchers to help her “unarrest” Storaasli. The 

officers repeatedly ordered defendant to release Storaasli, 

which she ignored. Ultimately, the officers succeeded in 

separating defendant from Storaasli and arrested both of 

them.

As relevant here, defendant was charged by information with two counts of interfering with a peace officer, ORS 162.247, and one count of resisting arrest, ORS 

162.315. The state based the two interfering counts on the 

same incident, but assigned to each a different statutory violation: (1) a failure to obey a lawful order and (2) an attempt 

to prevent an officer from his lawful duties with regard to 

another person. The resisting arrest charge simply alleged 

that defendant “intentional[ly] resist[ed]” officers “in making an arrest.”

At trial, the testimony presented in the state’s 

case in chief revealed that the resisting arrest charge did 

not relate to defendant’s own arrest but to her resistance 

to Storaasli’s arrest. Correctly concluding that all three 

charges related to defendant’s actions in response to the 

officers’ efforts to arrest Storaasli, defendant moved for a 

judgment of acquittal on both interfering charges. By its 

own terms, the statute criminalizing and defining interfering with a peace officer, “does not apply in situations in 

which the person is engaging in ** * [a]ctivity that would 

constitute resisting arrest under ORS 162.315.” ORS 

162.247(3)(a). Defendant reasoned that ORS 162.247(3)(a) 
676 State v. Garcia

prohibited the submission of the interfering counts to the 

jury because they flowed from the same activity giving rise 

to the resisting arrest charge.2

 The state did not disagree 

that defendant could not be convicted on both the interfering charges and the resisting-arrest charge; however, 

it argued that all counts should be submitted to the jury. 

The trial court denied defendant’s motion for judgment of 

acquittal.

Following the presentation of her case, defendant 

again sought a judgment of acquittal on the interfering 

charges. The state objected to the form of motion, noting 

that the issue was more appropriately brought as a pretrial 

demurrer or post-conviction motion in arrest of judgment. 

The state argued that, because the statute “does not apply 

to conduct constituting resist[ing] arrest,” the trier of fact 

must first make the factual finding that resisting arrest 

occurred. Defendant responded that she could not have filed 

a demurrer because the state’s information was insufficient 

to identify the basis for the charges, but she offered to craft 

her request as a motion to dismiss so as to “carry out the 

legislature’s instruction” in ORS 162.247(3).

The trial court deferred ruling on defendant’s alternative motions and heard additional argument the next day. 

The state reaffirmed its position that all charges should be 

submitted to the jury. However, the state clarified that, if 

the jury came back with guilty verdicts on both the interfering charges and the resisting arrest charge,

“the [interfering] charges [would be] subsumed by the 

jury’s finding with respect to resisting arrest. And, therefore, it may be, as I mentioned previously, a merger issue, 

a legal issue with respect to the Court’s entry of judgment, 

because the jury has found * ** that the defendant did commit the three offenses, but it would be left to the Court as a 

legal matter which charge to enter judgment on.”

2 Defendant also argued that her conduct could be characterized as “passive resistance” under ORS 162.247(3)(b). Because the Court of Appeals agreed 

with defendant on her first argument—that the interfering charges should not 

have been submitted to the jury under ORS 162.247(3)(a)—it declined to reach 

her passive resistance argument. Garcia, 278 Or App at 646 n 3. On review, 

defendant has not raised that second argument before this court, and we do not 

address it.
Cite as 361 Or 672 (2017) 677

In defendant’s opinion, however, “it’s actually the prosecutor’s duty in a situation like that to charge what they are 

going to charge and follow the available laws.”

Agreeing with the state, the trial court denied 

defendant’s renewed motion for judgment of acquittal on the 

interfering counts and submitted all three counts to the jury. 

The jury was instructed to resolve the two sets of charges in 

the alternative: “[I]f you find in a particular situation that 

[defendant] was engaged in activity that would constitute 

resisting arrest and passive resistance, you must return a 

verdict of not guilty as to the interfering with a peace officer for the same situation.” The jury subsequently convicted 

defendant on the count for interfering with the officers’ lawful duties, but it acquitted her on the remaining interfering 

charge and the resisting arrest charge.

Before the Court of Appeals, the parties presented 

arguments mirroring their positions below. Defendant 

asserted that ORS 162.247(3)(a) barred the state from 

charging interfering and resisting arrest based on the same 

acts. In defendant’s view, if, as here, the state charged interfering based on defendant’s actions in resisting arrest, then 

ORS 162.247(3)(a) should prevent the interfering count from 

being submitted to the jury. For its part, the state contended 

that nothing in the text of ORS 162.247(3)(a) precluded double charging; instead, it urged, the legislature intended subsection (3)(a) to act as a defense to the charge of interfering. 

The state reasoned that, for the trial court to grant a motion 

for judgment of acquittal on the interfering charge, it must 

necessarily conclude “that no rational fact-finder could find 

the defendant innocent of resisting arrest, and [the court] 

would be ruling that she was guilty of that crime as a matter 

of law.” Garcia, 278 Or App at 646. It further explained that, 

without making that determination, a trial court that withdrew the interfering charges would supplant the jury’s role to 

determine whether defendant committed any of the offenses.

After examining the text and legislative history 

of ORS 162.247, the Court of Appeals concluded that “the 

legislature intentionally excluded conduct that constitutes 

resisting arrest from the definition” of the crime of interfering with a peace officer. Garcia, 278 Or App at 649. As a 
678 State v. Garcia

result, the court explained, “the legislature intended to prohibit the state from charging a defendant with both resisting 

arrest and [interfering] based on the same conduct.” Id. The 

court looked to the legislative history of ORS 162.247, which 

was originally enacted in 1997, State v. McNally, 361 Or 314, 

326, 392 P3d 721 (2017), and cited as particularly persuasive the testimony from drafters of the 1999 amendment to 

subsection (3), determining that the legislature had wanted 

to “prevent the offender from being doubled up with two 

charges: both resisting arrest and [interfering].” Garcia, 278 

Or App at 649-50. As a result, the court concluded that “the 

state cannot charge a defendant with both resisting arrest 

and [interfering] based on the same conduct” and that the 

trial court erred when it presented the interfering charges 

to the jury, because “[o]nce it became clear that the state 

had engaged in the double charging that the legislature 

intended to prevent, the trial court had to give effect to the 

legislature’s intent by dismissing the [interfering] counts.” 

Id. at 650-51. The Court of Appeals disagreed that dismissal 

of the interfering counts would result in the trial court sitting as trier-of-fact and determining whether defendant was 

guilty of resisting arrest; rather, the trial court needed only 

to decide “whether the state had engaged in prohibited double charging.” Id. at 654 n 4.

The Court of Appeals also concluded that when and 

how a defendant should challenge the double charges would 

depend on when it was evident to the defendant that the 

two charges arose from the same set of acts. Id. at 651-52. 

Although a defendant could demur to the charging instrument when the shared factual basis for the state’s charges 

of interfering and resisting arrest was clearly alleged at the 

outset, the court recognized that it is also permissible for 

a defendant to challenge the charges later at trial, when 

the shared factual basis for the charges becomes clear. Id. 

Consistent with those determinations, the Court of Appeals 

reversed defendant’s conviction for interfering with a peace 

officer. Id. at 655.

II. ANALYSIS

The issue on review concerns the circumstances in 

which it is proper for the state to prosecute a defendant for 
Cite as 361 Or 672 (2017) 679

both interfering with a peace officer and resisting arrest 

for the same acts, a question implicating what the legislature intended to have happen through its enactment of 

ORS 162.247(3)(a). We understand the state’s argument for 

reversal to be that, contrary to the Court of Appeals’ holding, ORS 162.247(3)(a) bars a defendant’s convictions—but 

not the state’s charges—for both interfering and resisting 

arrest when the charges are based on the same acts and 

that, as a result, the trial court must submit both interfering and resisting arrest charges to the jury when the defendant disputes those charges, as in this case.3

Defendant acknowledges that the state may charge 

a defendant with both interfering and resisting arrest at the 

outset of a case, based on potentially different acts by the 

defendant for each charge. But defendant maintains that 

ORS 162.247(3)(a), correctly understood in light of legislative history, prevents the trial court from ultimately submitting both charges to the jury if it turns out that those 

charges are based on the same acts by the defendant. In 

other words, defendant explains, the state could prosecute 

a defendant for acts amounting to interfering that occurred 

when no arrest was taking place and also prosecute the 

defendant for different acts amounting to resisting arrest 

while an arrest was happening—even if both charges arise 

out of a single encounter with law enforcement officers—but 

the state cannot legitimately present both charges to the 

jury when they are based on one set of acts that the defendant allegedly committed.

Thus, the parties present two questions: whether, 

as the Court of Appeals concluded, the state is barred from 

charging a defendant for both crimes based on the same acts 

and, if not, whether and when both charges may be submitted to the jury. As we explain, we conclude that (1) the legislature most likely intended ORS 162.247(3)(a) to permit 

3 In its briefing, the state argued that ORS 162.247(3)(a) describes a defense 

to the crime of interfering with a peace officer. However, at oral argument, the 

state retreated from that position, asserting instead that the statute requires 

the trial court to present both interfering and resisting arrest charges to the 

jury with an instruction for the jury not to reach the interfering charge if the 

jury convicts on the resisting arrest. Thus, the resisting arrest subsection can be 

understood as an exception to a charge of interfering with a peace officer.
680 State v. Garcia

the state to charge a defendant with both interfering with 

a peace officer and resisting arrest based on the same acts, 

given the differing mental state elements of interfering and 

resisting arrest, and (2) when the defendant’s guilt is a disputed matter, the trial court should submit both charges to 

the jury with an appropriate instruction or verdict form.

A. Charging Interfering with a Peace Officer and Resisting 

Arrest

We begin with the conclusion that the Court of 

Appeals reached: that ORS 162.247(3)(a) prohibits the state 

from “double charging,” or charging a defendant with both 

interfering and resisting arrest for the same acts. That is 

an issue of statutory construction, and we turn to our wellestablish principles guiding that task. Following the framework established in PGE v. Bureau of Labor and Industries, 

317 Or 606, 610-12, 859 P2d 1143 (1993), as modified by 

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), we 

seek to determine the legislature’s intent in promulgating 

ORS 162.247(3)(a), and, to aid us in that goal, we review the 

text, context, and legislative history of the statute. Because 

it is the intent of the legislature as expressed through its 

formal enactments that matters, rather than the intent of 

one or two individual legislators, the text and context of the 

statute are the most compelling evidence of the legislature’s 

intent. Gaines, 346 Or at 171.

The crime of interfering with a peace officer is 

defined by ORS 162.247, which states:

“(1) A person commits the crime of interfering with a 

peace officer or parole and probation officer if the person, 

knowing that another person is a peace officer or a parole 

and probation officer * **:

“(a) Intentionally acts in a manner that prevents, or 

attempts to prevent, a peace officer or parole and probation 

officer from performing the lawful duties of the officer with 

regards to another person; or

“(b) Refuses to obey a lawful order by the peace officer 

or parole and probation officer.

“(2) Interfering with a peace officer or parole and probation officer is a Class A misdemeanor.
Cite as 361 Or 672 (2017) 681

“(3) This section does not apply in situations in which 

the person is engaging in:

“(a) Activity that would constitute resisting arrest 

under ORS 162.315; or

“(b) Passive resistance.”

(Emphasis added.) By its terms, ORS 162.247(3)(a) prevents 

the statute defining interfering from “apply[ing]” in a certain situation, namely, when the defendant “is engaging in 

*** [a]ctivity that would constitute resisting arrest.” That 

provision also refers to the statute defining the offense of 

resisting arrest, ORS 162.315, which provides, in part:

“A person commits the crime of resisting arrest if the 

person intentionally resists a person known by the person 

to be a peace officer or parole and probation officer in making an arrest.”

ORS 162.315(1).4

The phrase “does not apply” in ORS 162.247(3) 

comes closest to suggesting that the legislature may have 

intended to bar alternative charging of resisting arrest and 

interfering with a peace officer. For the most part, the parties in their briefing dispute whether the phrase provides a 

defendant with a defense to an interfering charge, with the 

state arguing that the defense does not bar double charging 

and instead requires the jury to determine whether the 

defense applies, as is the case with other defenses. However, 

as noted earlier, the state has refocused its analysis to argue 

4 The interfering and resisting arrest offenses cover similar conduct but differ based on whether the circumstances involved an arrest. As defined, resisting 

arrest requires a showing that the defendant knew the status of the peace officer 

and that the officer’s activity consisted of making an arrest; that the defendant 

acted to resist the arrest; and that defendant intentionally resisted. See State v. 

Olive, 259 Or App 104, 110-12, 312 P3d 588 (2013) (reviewing legislative history 

of ORS 162.315 and concluding that, “[t]o form the intent to resist another person in making an arrest, a person must know that an arrest is taking place”). In 

contrast, to be convicted of interfering under ORS 162.247(1)(a), the state must 

show that the defendant knew the status of the officer; acted in a manner that 

prevents, or attempts to prevent, the officer from performing the lawful duties of 

the officer with regard to another person; and did so intentionally. Thus, interfering does not require proof that an arrest took place, that the defendant knew of 

the arrest, or that the defendant intentionally took action to resist the arrest. It 

is the absence of those elements—which center on the defendant’s knowledge of 

an arrest—that distinguishes interfering from resisting arrest.
682 State v. Garcia

that, whether “does not apply” indicates a defense or something else, such as an exception to the offense of interfering, 

the phrase does not address charging and does not prohibit 

the state from alternatively charging resisting arrest by virtue of subsection (3)(a). We agree with the state that the 

text of subsection (3)(a) cuts against the conclusion that the 

state cannot charge both interfering and resisting arrest.

Normally, the state may bring charges against a 

defendant in the alternative, even with mutually exclusive 

charges. See generally State v. Savastano, 354 Or 64, 81, 

96, 309 P3d 1083 (2013) (recognizing a prosecutor’s discretion to bring particular charges); see also State v. Tron, 39 

Or App 603, 605, 592 P2d 1094 (1979) (prohibition on convictions for alternative counts does not bar the state from 

charging in the alternative). But ORS 162.247(3) does not 

contain an express provision that the state is barred from 

double charging resisting arrest and interfering based on 

the same acts, and elsewhere in the criminal statutes defining offenses, the legislature has chosen to expressly limit 

double charging. For example, ORS 166.370, which defines 

the offenses of possession of a firearm or dangerous weapon 

in public buildings, provides that “[n]otwithstanding the 

fact that a person’s conduct in a single criminal episode 

constitutes” multiple statutory violations for possession in 

a public building and in a school, the state “may charge the 

person with only one of the offenses.” ORS 166.370(7). It is 

apparent that the legislature could have, but did not, provide an express provision in ORS 162.247(3)(a) similarly 

barring alternative or double charging.

And although defendant and the Court of Appeals 

view subsection (3)(a) as presenting a legal question for the 

trial court—whether the interfering charges is based on the 

same conduct that is charged as resisting arrest—the text 

of the resisting-arrest provision in subsection (3)(a) suggests otherwise. By its terms, the phrase engaging in “activity that would constitute resisting arrest” suggests that 

interfering does not apply to the extent that the defendant’s 

activity amounted to resisting arrest. That phrase suggests 

something more than a legal question concerning whether 

there is an identity between the defendant’s physical acts 

relied on by the state for each of the two different charges: it 
Cite as 361 Or 672 (2017) 683

suggests that the offense of interfering does not apply to the 

defendant’s activity when the defendant has committed the 

offense of resisting arrest by engaging in that activity.

“Activity that would constitute resisting arrest,” 

ORS 162.247(3)(a), sounds much like the legislature’s use of 

the phrase “an act that *** would constitute a violation” in 

ORS 419C.005(1), a juvenile delinquency statute describing 

the juvenile court’s jurisdiction. Under ORS 419C.005(1), the 

juvenile court has exclusive original jurisdiction in any case 

involving a person under 18 years of age “who has committed 

an act that is a violation, or that if done by an adult would 

constitute a violation, of a law or ordinance * **.” This court 

has explained that ORS 419C.005(1) provides the court with 

jurisdiction when the juvenile either has committed an act 

that is a violation of state law or when the act would be a 

crime, but for the juvenile’s age. See State v. McCullough, 

347 Or 350, 358-59, 220 P3d 1182 (2009) (internal quotation 

marks omitted) (the latter “refers to the few crimes” that a 

juvenile “cannot actually commit” because age is an element of 

the crime). Both nouns—“activity” and “act”—connote action. 

See Webster’s Third New Int’l Dictionary, 20 (unabridged ed 

2002) (“act” can mean “process of doing : action” (boldface in 

original)); id. at 22 (“activity” can mean “physical motion or 

exercise of force,” as in “vigorous or energetic action”).5

The offense of resisting arrest requires proof not 

only of the defendant’s physical acts but also of the defendant’s accompanying mental state. If the legislature had 

wanted to indicate that double charging for the same physical acts is barred, regardless of whether the defendant’s 

conduct actually amounted to commission of the offense of 

resisting arrest, including by proof of the defendant’s mental state, the legislature could have (1) expressly barred 

double charging or (2) used wording in ORS 162.247(3)(a) 

suggesting a focus on the defendant’s acts rather than the 

commission of an offense, e.g., describing “activity [or acts] 

that might constitute resisting arrest” rather than “activity that would constitute resisting arrest.” In our view, by 

stating that activity “would constitute” resisting arrest, the 

5 In their briefing, neither party argued that “activity” held significance in 

the textual analysis.
684 State v. Garcia

legislature most likely intended that the offense of interfering would not apply when the defendant’s actions constituted 

commission of the offense of resisting arrest.

Our textual analysis is confirmed by the legislative 

history of ORS 162.247(3)(a). Senate Bill (SB) 423 (1997), 

which became ORS 162.247, was proposed by Representative 

Floyd Prozanski in response to a Court of Appeals case, City 

of Eugene v. Kruk, 128 Or App 415, 875 P2d 1190 (1994). In 

Kruk, the Court of Appeals struck down a Eugene ordinance 

prohibiting interfering with an officer. Id. at 417. The court 

explained that the ordinance did not have the exception for 

passive resistance contained in the existing resisting arrest 

statute and, thus, “the [two] laws [were] in conflict.” 128 Or 

App at 421 (quoting City of Portland v. Jackson, 316 Or 143, 

151, 850 P2d 1093 (1993)).

Before the Senate Committee on Crime and 

Corrections, Prozanski testified that SB 423 “has a caveat 

that this statute would not be applicable in the making of an 

arrest” because resisting arrest was already criminalized. 

Tape Recording, Senate Crime and Corrections Committee, 

SB 423, Feb 19, 1997, Tape 13, Side A (statement of Rep 

Floyd Prozanski). He noted, “It is not my intent to create 

a new statute that’s going to give another means of citing 

someone for that same conduct that is already regulated by 

state law under the resisting arrest.” Id. Rather, Prozanski 

suggested, the interfering statute was intended to address

“a situation where you have an officer who is involved in 

something less than performing the arrest but they are 

forced to divert their attention from what could be a very 

serious threatening safety reason for that officer or anyone 

else to deal with somebody that is really out of line and out 

of place for the context of what’s occurring.”

Id. Following Prozanski’s explanation, the legislature 

enacted the bill without changes to the relevant text. As 

originally enacted in 1997, subsection (3) stated that “[t]his 

section does not apply in situations in which a peace officer 

is making an arrest.” Or Laws 1997, ch 719, § 1.

In 1999, the Legislature amended subsection (3), Or 

Laws 1999, ch 1040 § 7, and it has remained unchanged since 
Cite as 361 Or 672 (2017) 685

then. Before the House Committee on Judiciary, Legislative 

Counsel John Horton described the need for House Bill (HB) 

3374 to address an overbroad understanding of ORS 162.247 

(1997):

“The language that is being deleted is language that says 

this section does not apply in situations in which * ** ‘the 

peace officer is making an arrest.’ * ** The original intent, 

as I understand it, of that subsection 3 was to say that if you 

are charging a person with resisting arrest that we are trying to prevent the offender from being doubled up with two 

charges: both resisting arrest and interfering with a peace 

officer. In practice, what has happened is that the language 

‘a peace officer is making an arrest’ has been construed a 

bit too broadly, and so what this would do is simply provide 

that, if the activity constitutes resisting arrest under that 

statute then the person cannot be charged with interfering 

with a peace officer, but, if the activity did not constitute an 

offense under the other statute, then they could be charged 

under this crime of interfering with a peace officer.”

Tape Recording, House Committee on Judiciary, 

Subcommittee on Criminal Law, HB 3374, May 4, 1999, 

Tape 178, Side B (statement of Legislative Counsel John 

Horton) (emphasis added).

Although defendant’s argument is based on a plausible interpretation of the legislative history from 1997 and 

1999, that interpretation does not square with the text of 

ORS 162.247(3), and we view the legislative history in a 

different way that is consistent with the statutory text. In 

defendant’s view, the legislative history reveals that the legislature intended to avoid doubling the charges of resisting 

arrest and interfering for the same conduct. Defendant’s 

argument is a plausible one, given that Prozanski referred 

to “citing someone” in 1997 and Horton used the term 

“charged” in explaining the purpose and effect of the 1999 

amendment while adding his understanding that the 1997 

statute was intended to “prevent the offender from being 

doubled up with two charges.” But defendant’s understanding of the legislative history is difficult to reconcile with the 

text of the statute, which indicates that the offense of interfering is not available only when the defendant has committed the offense of resisting arrest.
686 State v. Garcia

In light of Horton’s description of the purpose of the 

1999 amendment to ORS 162.247(3), we view the legislature’s intention to be consistent with our textual analysis: 

the legislature intended to prohibit the state from obtaining 

a conviction on both interfering and resisting arrest charges 

for the same activity. Neither party explains the import of 

Horton’s description of a need in 1999 to address what had 

become an overly broad construction of the original version of 

subsection (3) and then his explanation of what the amendment would do: “simply provide that, if the activity constitutes resisting arrest under that statute then the person 

cannot be charged with interfering with a peace officer, but, 

if the activity did not constitute an offense under the other 

statute, then they could be charged under this crime.” Tape 

Recording, House Committee on Judiciary, Subcommittee 

on Criminal Law, HB 3374, May 4, 1999, Tape 178 Side B 

(statement of Legislative Counsel John Horton). If that “too 

broadly” construed 1997 version of the statute was hampering prosecutions of defendants for conduct that might 

be either interfering or resisting arrest, depending on what 

the jury determined—a plausible conclusion—then it would 

make sense to narrow that understanding through the 1999 

amendment by clarifying that the interfering statute would 

not apply to acts that would establish that the defendant was 

committing resisting arrest. Defendant’s understanding of 

the legislative history not only does not comport with the 

text of the statute, but it does not comport with the apparent 

problem that the legislature aimed to fix.

B. Procedure in the Trial Court

Given our conclusion that the state may bring alternative charges of resisting arrest and interfering against 

a defendant based on the same physical acts, we go on to 

a procedural question: how must a trial court handle the 

charges at trial? The state urges that the trial court in this 

case correctly submitted both sets of charges to the jury 

with an instruction, because whether defendant’s activity 

amounted to resisting arrest was disputed and subject to a 

factual determination by the jury. We agree.

To find a defendant guilty of resisting arrest, the 

jury must necessarily evaluate mental state facts that are 
Cite as 361 Or 672 (2017) 687

difficult for a prosecutor to identify at the charging stage, 

or even, at times, in advance of submission to the jury. And 

complementary defenses such as self-defense or defense of 

others might offer additional questions of fact for the jury 

to consider, such as whether the defendant’s belief that he 

or she acted in self-defense or in defense of another was reasonable. See State v. Wright, 310 Or 430, 436, 799 P2d 642 

(1990) (concluding that “if an officer making an arrest uses 

excessive force, the permissible use of physical force by the 

arrestee is limited to the use of such force as is reasonably 

necessary under the circumstances”). A prosecutor should 

not be forced to elect one charge or the other in the face of conflicting versions of events presented by the witnesses to the 

event and ultimately uncertainty about whether an element 

going to the defendant’s mental state or a defense to resisting 

arrest can be proven. Thus, a trial court must submit both 

the resisting arrest and the interfering charges to the jury, 

even if based on the same actions taken by the defendant, 

when the defendant contests culpability for resisting arrest.

From a procedural perspective, to avoid the possibility of an inconsistent verdict, when the trial court submits 

both charges to the jury, the court should do so with instructions or with the verdict form. The jury can be instructed to 

address the resisting address charge first, followed by the 

interfering charge only if the jury does not find the defendant guilty of resisting arrest.

In this case, the trial court properly submitted the 

two sets of charges to the jury and instructed the jury on the 

alternative charges. The trial court instructed the jury that, 

if it found, “in a particular situation that [defendant] was 

engaged in activity that would constitute resisting arrest 

and passive resistance,” then it “must return a verdict of not 

guilty as to the interfering with a peace officer for the same 

situation.” The trial court’s submission of the charges to the 

jury was consistent with the statute, and its instruction, 

apparently understood by both the parties and by the jury, 

clarified that the interfering and resisting arrest charges 

were to be considered as alternatives.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is affirmed.