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FILED: July 5, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,

v.

YEN LIN WAN,
aka Y. L. Wan,
Defendant-Appellant.

Multnomah County Circuit Court 090749043
A143997
Kenneth R. Walker, Judge.
Submitted on December 21, 2011.
Peter Gartlan, Chief Defender, Office of Public Defense Services, and David O. Ferry,

Deputy Public Defender, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Tiffany
Keast, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
NAKAMOTO, J.
Conviction for resisting arrest reversed and remanded; otherwise affirmed.

1  NAKAMOTO, J.  
2  Defendant appeals from a judgment of conviction for interference with a  
3  police officer, ORS 162.247, and resisting arrest, ORS 162.315.  The convictions arose  
4  from defendant's refusal to allow police officers to enter his home when they responded  
5  to a domestic disturbance call.  Defendant contends that the trial court erroneously denied  
6  his motion to suppress evidence that the officers obtained when they entered his home  
7  without a warrant after they heard defendant's girlfriend crying and saw her lying in the  
8  fetal position with her back towards them.  Defendant also argues that the trial court erred  
9  in refusing to give a set of jury instructions concerning the right to self-defense during an  
10  arrest involving unlawful force.  Because the trial court erred in refusing to give a number  
11  of defendant's requested jury instructions, we reverse and remand defendant's conviction  
12  for resisting arrest and otherwise affirm.  
13  Unless stated otherwise, the following facts are not in dispute.  On May 28,  
14  2009, defendant moved from Taiwan to Portland to live with his girlfriend and study  
15  English at Portland State University.  About two months later, in the middle of the night,  
16  defendant and his girlfriend had an argument about their relationship.  Defendant's  
17  girlfriend began to cry loudly for several hours.  The building security called police, and  
18  Officer Tobey and Sergeant Steinbronn responded to the call. Building security told the  
19  officers about the argument and the subsequent crying, which had been ongoing for  
20  approximately four hours. As the officers approached defendant's apartment, they heard  
21  a woman crying.  After the officers knocked on the door, defendant partially opened it.  
22  The officers could not see defendant's girlfriend at this time, but they could hear her loud  

1  crying.  They asked defendant whether they could check on her welfare, but defendant  
2  refused to let them enter.  After repeated requests to enter, defendant opened the door a  
3  little wider, and the officers saw the girlfriend lying in a fetal position facing away from  
4  them.  From his vantage point, Tobey thought she was "either hurt or something else  
5  [was] going on with her."  Tobey told defendant "in no unspecific terms that we were  
6  coming into the apartment to check on the female."  Defendant said "no" and asked the  
7  officers to leave.  As the officers began to enter, defendant began to push the door closed.  
8  Both officers forced the door open and tried to move defendant away from the door and  
9  control him so they could check on his girlfriend.  As the officers tried to gain control of  
10  defendant's arms, defendant twisted and pulled his arms away.  Tobey told defendant  
11  several times to stop resisting.  At one point, Tobey punched defendant in the face when  
12  defendant raised his arms and made a fist.  In the meantime, defendant's girlfriend stood  
13  up and was yelling.  Both officers testified that defendant did not hit them.  Eventually,  
14  Steinbronn pointed his Taser at defendant, ordered him to the ground, and arrested him.  
15  The officers checked on defendant's girlfriend, and she was not physically injured.  
16  Defendant was charged with two counts of interference with a police officer  
17  and one count of resisting arrest. Before trial, defendant moved to suppress evidence  
18  arising from the officers' warrantless entry into his apartment.  The trial court denied the  
19  motion.  
20  At trial, the state presented the facts above.  Defendant testified in his  
21  defense, and his account of what occurred in the apartment differed from the officers'  
22  testimony.  He testified that he was still learning English and did not completely  

1  understand all of the officers' questions or commands.  Defendant testified that, at first,  
2  he denied the officers entry because he believed that the officers had no right to enter  
3  without his consent.  But when the officers began to push against the door, defendant  
4  realized "something might happen," and he attempted to let the officers enter.  However,  
5  defendant was positioned between the door and a shoe-rack, preventing defendant from  
6  opening the door unless he moved out of the way first.  But the only way to do that was  
7  to close the door a little bit to allow space for him to move out between the door and the  
8  shoe rack. When the officers felt the door closing, the officers pushed their way into the  
9  apartment.  
10  Even though the officers testified that they ordered him to stop resisting  
11  when they were inside the apartment, according to defendant, he did not understand their  
12  commands.  Instead, he testified, as soon as the officers entered, they were pushing him  
13  against the wall and trying to control him.  At that time, he did not think he had done  
14  anything wrong, so he did not believe they were trying to arrest him.  He testified that the  
15  officers dragged him from the wall near the door to an open space in the living room.  He  
16  testified that one of the officers punched him and another tried to sweep his legs out from  
17  under him, causing him to move his arms to protect himself from falling.  They also tried  
18  to twist his arm in an "arm bar," a painful maneuver where officers apply pressure to a  
19  person's shoulder and lock the person's elbow.  When Steinbronn pulled out his Taser,  
20  defendant understood that he was being arrested and allowed the officers to handcuff  
21  him.  Defendant's girlfriend also testified that she did not see defendant hit or strike the  
22  officers during the struggle.  

1  At the end of trial, defendant requested Uniform Criminal Jury Instruction  
2  (UCrJI) 1227, entitled "Self-Defense-Resisting Arrest,"1 and three special instructions  
3  regarding self-defense.  The trial court refused to give any of defendant's requested  
4  instructions based on its conclusion that there was no evidence that the officers had used  
5  unlawful or excessive force during the encounter.  Defendant excepted the failure to  
6  deliver his requested self-defense instructions.  The jury found defendant guilty of all  
7  three counts, and the trial court merged the two counts of interference with a police  
8  officer into one count.  
9  On appeal, defendant advances five assignments of error.  In his first  
10  assignment of error, defendant challenges the trial court's denial of his motion to suppress  
11  evidence obtained from the officers' warrantless entry into his apartment.  Defendant  
12  combines his argument on his second, third, fourth, and fifth assignments of error  
13  concerning the trial court's refusal to deliver his four requested jury instructions.  He  
14  argues that he was entitled to a self-defense instruction because he testified that the  
15  officers' use of force was excessive, and he resisted arrest to protect himself from harm.  
16  In response to plaintiff's first assignment of error, the state contends that,  
17  under the emergency aid doctrine, the police officers properly entered defendant's  
18  apartment without a warrant to render aid to defendant's girlfriend, who they perceived  
19  was injured.  As to defendant's combined argument regarding his requested jury  
20  instructions, the state asserts that the trial court's refusal to give the instructions was  
1 When referring to UCrJI 1227, we refer to the version available at the time of trial  
in October 2009.  

1  proper because they provided incorrect statements of law or else would have been  
2  confusing to the jury.  We address each assignment of error in turn.  
3  We begin with defendant's assertion that the trial court erred in denying his  
4  motion to suppress.  We review a trial court's denial of a motion to suppress evidence for  
5  errors of law and are bound by the trial court's findings if they are supported by the  
6  record. State v. Baker, 350 Or 641, 650, 260 P3d 476 (2011).  
7  Defendant contends that any evidence obtained after the officers forced  
8  their way into his apartment should be suppressed because the officers' warrantless entry  
9  was unlawful under Article I, section 9, of the Oregon Constitution.  Warrantless entries  
10  and searches of premises are per se unreasonable unless they fall under a specific  
11  established exception to the warrant requirement.  State v. Davis, 295 Or 227, 237, 666  
12  P2d 802 (1983) (citing Katz v. United States, 389 US 347, 357, 88 S Ct 507, 19 L Ed 2d  
13  576 (1967)).  The state has the burden to prove that police action falls under a recognized  
14  exception to the warrant requirement.  Id. at 237.  Here, the state relies on the emergency  
15  aid doctrine.  
16  In Baker, the Supreme Court explained the standard under the emergency  
17  aid doctrine to determine whether officers can enter a person's home without a warrant:  
18  "[W]e conclude that an emergency aid exception to the Article I, section 9  
19  warrant requirement is justified when police officers have an objectively  
20  reasonable belief, based on articulable facts, that a warrantless entry is  
21  necessary to either render immediate aid to persons, or to assist persons  
22  who have suffered, or who are imminently threatened with suffering,  
23  serious physical injury or harm."  
24  350 Or at 649 (footnotes omitted). Under Baker, the court must determine whether there  

1 are specific and articulable facts to support the officers' belief that a person required aid 2 or assistance and whether that belief was reasonable. 3 Here, there were articulable facts to justify a warrantless entry.  The 4 officers knew that a woman had been crying in an apartment for four hours after an 5 argument.  The officers could hear loud crying as they approached defendant's apartment 6 and confirmed that the crying came from defendant's apartment when defendant opened 7 his door. When defendant opened the door a little wider, the officers saw a woman lying 8 in the fetal position crying.  At that point, the officers had an objectively reasonable 9 belief that a warrantless entry was necessary to assist a person who was seriously injured.  
10 Thus, the trial court appropriately denied defendant's motion to suppress.2 11 We turn to defendant's second, third, fourth, and fifth assignments of error 12 concerning defendant's requested jury instructions on self-defense.  We note that 13 defendant requested a self-defense instruction only in relation to the charge of resisting 14 arrest and not the charge of interfering with a police officer.  We review the trial court's 15 refusal to deliver a requested instruction for legal error.  State v. Branch, 208 Or App 16 286, 288, 144 P3d 1010 (2006).  When discussing defendant's requested jury instructions, 17 we view the facts in the light most favorable to defendant.  State v. Oliphant, 347 Or 175,
The trial court also agreed with the state's argument that the community caretaking  
statute, ORS 133.033, provided a basis for the officers to enter the residence without a  
warrant, and defendant does not challenge that portion of the trial court's ruling on  
appeal. We reach the constitutional issue because a warrantless entry in compliance with  
ORS 133.033 is not necessarily a permissible one under the Oregon Constitution.  See,  
e.g., State v. Salisbury, 223 Or App 516, 523, 196 P3d 1017 (2008) ("Thus, even if the  
state is able to satisfy the requirements of ORS 133.033, it must also satisfy the  
requirements of the emergency aid doctrine.").  

1  178, 218 P3d 1281 (2009).  
2  Defendant argues that he was entitled to a self-defense jury instruction  
3  based on his testimony.  A party is entitled to have the jury instructed on the law that  
4  supports that party's theory of the case when (1) there is evidence to support that theory  
5  and (2) the requested instruction is a correct statement of the law. Branch, 208 Or App at  
6  288.  
7  We first discuss whether there was evidence to support defendant's self

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