State v. Moravek

The trial court [has] an obligation to instruct the jury on passive resistance only if it is either an element of interfering with a police officer, State v. Gray, 261 Or App 121, 129, 322 P3d 1094 (2014), or a defense other than an affirmative defense that the defendant ‘raised’ at trial.State v. Abram, 273 Or App 449, 456, 359 P3d 431 (2015).

Defendant appealed from a conviction for Interfering with a Police Officer. Defendant assigned error to the trial court’s failure to sua sponte instruct the jury on “passive resistance.” On appeal, Defendant argued that the State failed to present sufficient evidence that her actions did not rise above the level of passive resistance, but rather that Defendant simply refused to stand up on her own power, which can only be understood to be passive resistance. In response, the State argued that the issue was unpreserved at trial. The trial court [has] an obligation to instruct the jury on passive resistance only if it is either an element of interfering with a police officer, State v. Gray, 261 Or App 121, 129, 322 P3d 1094 (2014), or a defense other than an affirmative defense that the defendant ‘raised’ at trial. State v. Abram, 273 Or App 449, 456, 359 P3d 431 (2015). The Court held there was no clear error in the trial court’s failure to sua sponte provide an instruction for passive resistance because the trial court is only required to instruct the jury on passive resistance if it is an element of the charge, and passive resistance is not an element of Interfering with a Police Officer. Affirmed.