- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 03-23-2016
- Case #: A154517
- Judge(s)/Court Below: Sercombe, P.J., for the Court; Hadlock, C.J., & Tookey, J.
Defendant appealed his conviction of disorderly conduct contending that the lower court erred in denying his motion for judgment of acquittal. Defendant had gone to a friend’s house in an attempt to help her remove an unwanted person in her apartment and banged on the door stating that he was the police, would break down the door, and had a gun. Defendant’s friend’s neighbor called the police. Defendant argued that the State did not prove with sufficient evidence that his actions constituted disorderly conduct under the theory of “fighting or violent, tumultuous, or threatening behavior” as was alleged by the state. Defendant further argued that under State v. Cantwell, the State needed to prove either use of physical force or physical conduct that “was immediately likely to produce the use of physical force.” This Court affirmed Cantwell and its subsequent cases, reinforcing that the focus of ORS 166.025(1)(a) is on the physical aspect rather than speech. This Court concluded that a defendant cannot be convicted on conduct that is speech itself, the banging on the door in this present case, but can be used to “clarify the likely consequences of a nonspeech action.” Count 3 REVERSED; Otherwise AFFIRMED.