dissenting.
The majority concludes that resisting arrest is a crime against public order and, therefore, the identity of the police officer who is resisted is not an element of the crime. 159 Or App at 86. Because I believe that that conclusion ignores the plain language of the resisting arrest statute, I disagree.
The issue is whether a person commits multiple acts of resisting arrest, under ORS 162.315, when the person resists arrest by two or more peace officers. In order to determine the answer, I look to the text of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). At the time of defendant’s arrest, ORS 162.315 provided:
“(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer in making an arrest.
“(2) ‘Resists,’ as used in this section, means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The behavior does not have to result in actual physical injury to the arresting officer. Passive resistance does not constitute behavior intended to prevent being taken into custody.
“(3) It is no defense to a prosecution under this section that the peace officer lacked legal authority to make the arrest, provided the peace officer was acting under color of official authority.
“(4) Resisting arrest is a Class A misdemeanor.”1
Under subsection (2) of the statute, a person resists arrest if that person uses or threatens use of “violence, physical force or any other means that creates a substantial risk of *88physical injury to any person and includes behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer.” (Emphasis added.) The legislature’s use of the definite article “the” indicates that the identity of the officer resisted is a factual element of the offense. In an incident where only one officer is attempting to make an arrest, it is simple to determine whether an arrestee’s acts were for the purpose of overcoming the actions of the arresting officer and thus avoiding custody. Where three officers are involved, however, and the arrestee is struggling against all three, there may be some question as to whether the arrestee is attempting to avoid being taken into custody by all three officers or only by a particular officer.2
For example, it is foreseeable that an arrestee might mistrust one of the three officers and not want to be in that officer’s custody and, therefore, struggle against arrest by that officer but not by the other two. In other instances, the arrestee might, indeed, struggle against all three. In either case, the struggle against each arresting officer would constitute a separate incident of resisting arrest for which the arrestee potentially might be charged. In each case, the factual elements are different.
In State v. Houston, 147 Or App 285, 935 P2d 1242 (1997), we held that, when a defendant has been charged with a single offense that could have occurred on more than one occasion, the jury must agree on a single occasion in which all of the factual elements constituting the crime were present. Houston, in turn, was based on the Supreme Court’s decision in State v. Boots, 308 Or 371, 780 P2d 725 (1989), in which the court held that the jury must agree on the statutorily defined factual circumstances that constitute the crime of aggravated murder.3 Defendant’s first encounter with Rabey constituted one incident in which the elements of the *89offense of resisting arrest may have been present, and his subsequent encounter with Pool, Marshman and Rabey constituted three additional incidents. Under Houston and Boots, the jury would have to agree on the specific set of factual elements proving the charge. In other words, the jury would have to agree as to which officer in which incident was resisted.
In this case, the state chose not to charge defendant with four separate counts of resisting arrest. Rather, the indictment simply stated that defendant had resisted all three officers. Defendant did not move to require the state to elect which incident formed the basis of the charge of resisting arrest, which would have been an appropriate course of action, but he did ask the court for an instruction requiring the jury to agree on the facts constituting the offense. Defendant’s request was appropriate because, without the instruction, some of the jurors could have agreed that he had resisted arrest by Rabey in the first encounter but had not resisted any of the officers during the second encounter, while other jurors could have believed that defendant had not resisted Rabey during the first encounter but had resisted Pool, Marshman or Rabey during the second encounter. Because resistance against each officer during each encounter formed a separate basis for the offense, all the jurors were required to agree on a single incident involving a single officer. Accordingly, defendant’s requested instruction was correct.
Moreover, because the jury was not required to “seriously [confront] the question whether they agree[d] that any factual requirement of [the offense had] been proved[,]” Boots, 308 Or at 375, and because the outcome might have been different if the instruction had been given, Hernandez, 327 Or at 106-07, the error was prejudicial to defendant. Accordingly, I would reverse the judgment of the trial court and remand the case for a new trial.
The legislature amended ORS 162.315 in 1997. Or Laws 1997, ch 749, § 3. The 1997 amendments are not relevant to this case. Defendant does not dispute that there was sufficient evidence presented to prove that he had “resisted” arrest as that term is used in the statute.
The majority states that its conclusion that ORS 162.315 does not focus on the potential of harm to an individual officer is supported by the fact that another statute, ORS 163.208, addresses that problem. 159 Or App at 85-86. That statute, however, applies only when an officer is physically injured and, therefore, its existence does not support the majority’s reading of ORS 162.315.
The Supreme Court later held that the analysis developed in Boots was not limited to cases of aggravated murder. State v. King, 316 Or 437, 441, 852 P2d 190 (1993) (applyingBoots analysis to DUII charge).