State v. Richardson

State v. Cantwell concluded that under ORS 166.025(1)(a) (Disorderly conduct where conduct is fighting or violent, tumultuous, or threatening behavior”) the State needs to prove that the defendant “either used physical force or engaged in physical conduct that was immediately likely to produce the use of physical force.” Cantwell further provided that a conviction under that statute could not be based on the defendant’s speech but on the physical force aspect. Subsequent cases showed that incidental physical conduct, such as grabbing a shoulder, which is a “common method of gaining someone’s attention” does not fall under the physical force necessary for a conviction under this statute.

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.