State v. Bracken

318 June 18, 2025 No. 545 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. QUINTON LEE BRACKEN, aka Quinton Bracken, Defendant-Appellant. Douglas County Circuit Court 19CR72547; A176684 Frances Elaine Burge, Judge. Submitted April 24, 2023. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge. HELLMAN, J. Conviction on Count 2 reversed; conviction on Count 1 reversed and remanded. Cite as 341 Or App 318 (2025) 319 320 State v. Bracken HELLMAN, J. Defendant appeals a judgment of conviction for resisting arrest, ORS 162.315 (Count 1), and interfer- ing with a peace officer (IPO), ORS 162.247 (Count 2). On appeal, defendant argues first that the trial court erred in denying his motion for judgment of acquittal (MJOA) for IPO because he was engaged in “passive resistance,” which is not punishable under the statute. Second, defendant argues that the court erred by declining to give his requested jury instruction that included a definition of “passive resistance” as a defense to resisting arrest. Finally, the court conducted an in camera review of evidence that defendant subpoenaed, and defendant contends that the court erred by failing to disclose that evidence. As explained below, we first agree that defendant’s conduct constituted passive resistance, and the court erred when it denied his MJOA for IPO. Second, although we agree that the circumstances around the court’s refusal to provide defendant’s requested jury instruction had a proba- bility of creating an erroneous impression of the law, defen- dant’s requested instruction contained an incorrect state- ment of law. Therefore, the court did not err in refusing to provide it. Finally, we agree that the court erred in failing to disclose some of the evidence that defendant subpoenaed. Accordingly, we reverse defendant’s conviction for IPO, and reverse and remand his conviction for resisting arrest. Defendant is the owner of the Point 9 bar. Douglas County Sherriff’s Deputy Whetzel entered the bar late at night looking for a person in an unrelated matter. Whetzel had been to Point 9 many times before in his official capacity and had a contentious relationship with defendant. Defendant, who appeared very intoxicated, approached Whetzel and asked what he was doing there. Whetzel activated his body worn camera and asked defendant if he was in control of the bar. Defendant said that he was not. Whetzel determined that by “confront[ing]” him, defendant had “assum[ed] the role of manager,” which was a violation of OLCC administra- tive rules to do while under the influence of intoxicants. Whetzel ordered that the bar be shut down. The bar- tender insisted that she was in control of the bar, but Whetzel Cite as 341 Or App 318 (2025) 321 said that defendant “was just taking control of the bar just now,” and ordered the bartender to pull the customers’ drinks. The bartender did so while defendant and Whetzel continued to argue about whether defendant was in control of the bar and whether Whetzel was allowed in the bar. As the customers were leaving, defendant walked away from Whetzel and was pushing open the door when Whetzel said, “You’re not going anywhere, [defendant].” With his left hand holding the door ajar, defendant turned slightly toward Whetzel and said, “Yeah, I am.” Whetzel immediately walked toward defendant and responded, “No, you’re not. You’re not free to go.” Whetzel repeated, “You’re not free to go” multiple times as he moved toward defendant. Defendant turned and faced Whetzel directly and said, “I’m going home.” In turning toward Whetzel, defendant took a step backward, moving from the interior of the door’s threshold to the exterior threshold. Defendant was still holding the door open with one hand and had his other hand in his pocket. Whetzel was within a few feet of him and still moving forward. When he reached the interior of the door’s threshold, Whetzel said, “Get back in here.” Defendant made no movement except to shake his head and said “No.” Whetzel responded, “Okay, you’re under arrest” and reached toward defendant. Defendant lifted his arms and “pulled himself away” as Whetzel grabbed him. The struggle brought them both outside into the parking lot, where Whetzel forced defendant to the ground and handcuffed him.