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 deci-
sion 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 stat-
ute 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 consti-
tute 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 inter-
fering 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 culpabil-
ity 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 interfer-
ing 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 defin-
ing 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, defen-
dant 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 stat-
ute 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 dis-
putes the charges, that the trial court should submit both
charges to the jury with an appropriate instruction or ver-
dict 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, partici-
pated 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 respond-
ing 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 infor-
mation with two counts of interfering with a peace offi-
cer, 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 vio-
lation: (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 mak-
ing 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 inter-
fering 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 inter-
fering 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 alter-
native 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 interfer-
ing charges and the resisting arrest charge,
   “the [interfering] charges [would be] subsumed by the
   jury’s finding with respect to resisting arrest. And, there-
   fore, 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 com-
   mit 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 “pas-
sive 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 prosecu-
tor’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 offi-
cer for the same situation.” The jury subsequently convicted
defendant on the count for interfering with the officers’ law-
ful 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 inter-
fering 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 dou-
ble charging; instead, it urged, the legislature intended sub-
section (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 with-
drew 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 inter-
fering with a peace officer. Garcia, 278 Or App at 649. As a
678	                                          State v. Garcia

result, the court explained, “the legislature intended to pro-
hibit 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 persua-
sive 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 sit-
ting 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 dou-
ble 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 instru-
ment 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 legis-
lature 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’ hold-
ing, 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 interfer-
ing and resisting arrest charges to the jury when the defen-
dant 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 legisla-
tive history, prevents the trial court from ultimately sub-
mitting 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 defen-
dant 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 submit-
ted to the jury. As we explain, we conclude that (1) the leg-
islature 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 dis-
puted 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 well-
establish principles guiding that task. Following the frame-
work 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 pro-
   bation 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 cer-
tain 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 mak-
    ing 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 par-
ties 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 dif-
fer 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 per-
son 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, interfer-
ing 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 some-
thing 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 vir-
tue 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 discre-
tion to bring particular charges); see also State v. Tron, 39
Or App 603, 605, 592 P2d 1094 (1979) (prohibition on con-
victions 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 defin-
ing 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, pro-
vide 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) sug-
gests otherwise. By its terms, the phrase engaging in “activ-
ity 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 defen-
dant’s accompanying mental state. If the legislature had
wanted to indicate that double charging for the same phys-
ical 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 men-
tal 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 “activ-
ity 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 interfer-
ing 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 try-
   ing 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 plau-
sible 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 leg-
islature 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 understand-
ing of the legislative history is difficult to reconcile with the
text of the statute, which indicates that the offense of inter-
fering is not available only when the defendant has commit-
ted 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 legisla-
ture’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 amend-
ment would do: “simply provide that, if the activity consti-
tutes 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 ham-
pering 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 alter-
native 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 rea-
sonable. 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 con-
flicting 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 possibil-
ity of an inconsistent verdict, when the trial court submits
both charges to the jury, the court should do so with instruc-
tions 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 defen-
dant 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.
