State v. Kreft

Speech does not qualify as the kind of “behavior” necessary to satisfy the elements of ORS 166.025(1)(a) and the statute only encompasses acts of physical violence. Asking someone for the time is not aggressive enough to be deemed behavior that would be likely to produce the use of physical force by an objectively reasonable person under this statute.

Defendant appealed a conviction for second-degree disorderly conduct. The statute reads that one must “unlawfully and recklessly create a risk of public inconvenience, annoyance and alarm by engaging in violent, tumultuous and threatening behavior.” On appeal, Defendant claims it was an error for the trial court to deny his motion for judgment of acquittal because there was insufficient evidence to support the conviction. While in a park, Defendant asked a nine-year-old girl, G, for the time. When she responded that she did not know, her father, Ramirez, began to approach and Defendant walked away. Ramirez became angry and followed Defendant as he spoke to other women in the park. Ramirez asked a woman working in the park to call 9-1-1. Defendant was then arrested and charged. This Court considered the trial court’s denial of defendant’s motion for judgment of acquittal by determining whether a rational factfinder could have found the elements of the crime in question beyond a reasonable doubt. The Court ruled that there was not sufficient evidence to prove that Defendant used physical force or engaged in physical conduct that was immediately likely to produce the use of physical force by either Defendant himself or an objectively reasonable person responding to Defendant’s conduct because asking individuals for the time is not aggressive enough behavior to reasonably warrant the use of physical force. Reversed.