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Court of Appeals of Oregon.

STATE of Oregon, Plaintiff–Respondent, v. Maryellen DEVALL, aka Mary Ellen Devall, Defendant–Appellant.

14CR1791; A158544.

Decided: April 20, 2016

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and SHORR, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Defendant was convicted of second-degree disorderly conduct, ORS 166.025(1)(a) (Count 1), and interfering with a peace officer, ORS 162.247(1)(b) (Count 2). On appeal, she assigns error to the denial of her motion for a judgment of acquittal as to Count 1; she does not challenge her conviction on Count 2. The state concedes that there was not legally sufficient evidence that defendant had engaged in “violent, tumultuous or threatening behavior” as required for conviction of second-degree disorderly conduct under ORS 166.025(1)(a). We agree.

In State v. Atwood, 195 Or.App. 490, 500, 98 P3d 751 (2004), we held that “violent, tumultuous or threatening behavior” under ORS 166.025(1)(a) cannot be shown by verbal threats alone; rather, the state must show that the defendant “with the requisite intent, used physical force or engaged in physical conduct likely to produce the use of such force by either [the defendant] or by an objectively reasonable third party responding to that conduct.” The evidence in this case is insufficient to meet that standard. Accordingly, we reverse defendant's conviction of second-degree disorderly conduct on Count 1; otherwise, we affirm.

Conviction on Count 1 reversed; otherwise affirmed.