State v. Sell

82 September 13, 2023 No. 460

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

BRYAN A. SELL,

aka Bryan Alan Sell,

Defendant-Appellant.

Coos County Circuit Court

21CR06842; A176091

Andrew E. Combs, Judge.

Argued and submitted February 2, 2023.

Meredith Allen, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Joanna Hershey, Assistant Attorney General, argued

the cause for respondent. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

PAGÁN, J.

Affirmed.

Cite as 328 Or App 82 (2023) 83

84 State v. Sell

PAGÁN, J.

Defendant appeals his convictions for assaulting a

public safety officer, ORS 163.208 (Count 1),1 resisting arrest,

ORS 162.315 (Count 2), and interfering with a peace officer,

ORS 162.247 (Count 3). During their deliberations over the

course of a few hours, the jurors sent the trial court a total of

seven notes reflecting their frustrations with each other and

asking questions. In his first assignment of error, defendant

argues that the trial court abused its discretion by denying

his motion for a mistrial based on the notes. However, absent

a clear indication that the jurors could no longer be impar-

tial, the trial court did not abuse its discretion in refusing to

declare a mistrial after only three hours of deliberations. As

a result, we reject defendant’s first assignment of error. In

his other assignments, defendant argues that the trial court

erred by failing to instruct the jury regarding a culpable

mental state for material elements of the crimes charged in

Counts 1 and 2. Although the trial court committed plain

error, we decline to exercise our discretion to correct the

error in the instruction on Count 1, and the error in the

instruction on Count 2 was harmless. We therefore affirm.

I. FACTS

As noted, defendant assigns error to the jury

instructions and to the trial court’s decision not to declare a

mistrial during deliberations. As such, we begin by discuss-

ing the underlying facts as they relate to the culpable men-

tal state of defendant, and we will then turn to the interac-

tions between the court and jury during deliberations.

On February 6, 2021, police officers for the City of

Coos Bay responded to a reported violation of a restrain-

ing order. The officers had three affidavits of probable cause

to arrest defendant for prior violations. When the officers

located defendant, he “took off running.” Officer Rule chased

defendant on foot, while Officer O’Connor got ahead of defen-

dant in a patrol car. Rule yelled at defendant to stop, but he

failed to do so.

1

ORS 163.208 was amended since the conduct at issue here. See Or Laws

2021, ch 489, § 12 (effective Jan 1, 2022). Those amendments do not affect our

analysis, and we refer to the current version of the statute.

Cite as 328 Or App 82 (2023) 85

When the officers confronted defendant, he had his

right hand concealed in his jacket, and the officers were wor-

ried that he had a weapon. Rule and O’Connor simultane-

ously deployed their tasers, but the tasers were not effective

because defendant was wearing thick clothing. O’Connor

deployed pepper spray, after which defendant lay on the

ground.

Defendant concealed his arms under his torso and

refused orders to put his arms behind his back. O’Connor

had to use force to move defendant’s hands, while Rule

kept pressure on defendant to prevent him from standing

up or running away. Eventually, O’Connor managed to

place defendant in handcuffs. Because defendant had been

tasered and pepper sprayed, the officers called for a medical

evaluation. Officer Myers arrived at the scene around the

same time that this was occurring.

When paramedics examined defendant, he com-

plained of back pain, so the officers decided to take defen-

dant to the hospital before transporting him to jail. As

defendant was being escorted to a patrol car by Myers and

O’Connor, defendant began to pull away from the officers,

and he screamed at them. He threatened to spit on the offi-

cers. Defendant refused to sit down in the back of the car.

He was “extremely resistant to getting in the vehicle.” While

officers were attempting to place him inside, he managed to

stand up on the seat of the vehicle, and he yelled to his wife

that he loved her.

The officers pulled defendant to the ground “and got

into another altercation with him.” Defendant was “thrash-

ing, and kicking, and rolling, and screaming at” the offi-

cers. O’Connor focused on getting defendant’s feet secured,

and he kept his body weight on defendant “to keep him

from kicking at us any further.” It took all three officers to

hold defendant on the ground and get him under control.

When defendant was secured in the patrol car, he continued

“thrashing around.” Defendant was “bashing his head into

the Plexiglas and trying to kick out the windows.”

After defendant was secured, Rule told O’Connor

that O’Connor’s head was bleeding. O’Connor did not have

86 State v. Sell

the injury before he struggled with defendant. O’Connor

had a contusion across the right side of his face above his

right eye. The medics cleaned his wound and applied anti-

biotic ointment. O’Connor had a headache for the rest of

the day, he could not sleep on his face, the wound stung in

the shower, and he could not wear a patrol hat. No one saw

defendant land a kick or punch on O’Connor.

Defendant was charged with assaulting a public

safety officer, ORS 163.208; resisting arrest, ORS 162.315;

and interfering with a peace officer, ORS 162.247. At his

jury trial, the jury heard testimony from the three officers

and viewed exhibits, including body camera footage of the

incident. The jury instruction on assault provided that the

state was required to prove that defendant “acted with an

awareness that his conduct was assaultive and would likely

cause physical injury.” The jury instruction on resisting

arrest stated in part that “a person commits the crime of

resisting arrest if the person intentionally resists a person

known by him to be a peace officer in making an arrest.”

The instructions also stated: “Guilty verdicts must be

unanimous, which means that each and every juror must

agree on a guilty verdict. But not-guilty verdicts may be

nonunanimous.”

That brings us to the deliberations. At around

3:00 p.m., after the jury had been deliberating for an hour,

a juror sent a handwritten note to the trial court. It stated:

“So we are stuck on one count. We are 50% - 50% on one, and

unanimous on the other two. Do we have to get 10 for not

guilty or 100% guilty or stay here?” The trial court proposed

responding to the note by stating that “not guilty verdicts do

not have to be unanimous.” The prosecutor agreed. The trial

court suggested telling the jury to continue deliberating but

indicated that it was not otherwise inclined to respond fur-

ther. Defense counsel proposed instructing the jury “that it’s

got to be 12 for a guilty verdict, ten for a not guilty verdict,

and continue deliberating,” and he did not think that there

was “a hung jury.” Defense counsel observed that the jury

had been deliberating for only about an hour, and that it

was “appropriate to encourage them to continue,” but that

he might conclude otherwise if “it keeps going through mul-

tiple rounds.”

Cite as 328 Or App 82 (2023) 87

The trial court was aware of the option of giving a

dynamite instruction,2 but it did not want to push the jury

“too hard.” Thus, the trial judge responded to the jury by

instructing them to continue deliberating. More specifically,

at 3:10 p.m., the trial court responded to the jury by stating,

in writing:

“Dear Jury:

“Guilty verdicts must be unanimous, which means that

each and every juror must agree on a guilty verdict. Not-

guilty verdicts do not have to be unanimous. As such, for

a not guilty verdict, at least 10 jurors must agree on a not-

guilty verdict. If you are divided nine to three, for example,

you do not have a not-guilty verdict. If you are divided six

to six, you do not have a verdict.

“Furthermore, do not tell anyone, including me, how

many of you are voting not guilty or guilty until you have

reached a lawful verdict or have been discharged.

“Please continue deliberating.”

Later, a juror sent a second note. It stated,

“It is not my fault that the rest of the jury cannot decide.

Since this is a one day case, I am only allowed to miss one

shift, which was last night so that I’d be able to be here this

morning. I have to get up for work in 4.5 hours. I will lose

my job if I miss another day. This is taking way too long.”

Without reconvening the parties, at 3:40 p.m., the trial court

told the jury to “[c]ontinue deliberating.”

Two more notes followed. The third one asked, “If

we can’t reach an agreement o[n] count 1 but we do on count

2 [and] 3[,] do we have mistrial on all or just the one count?”

(Underscoring in original.) Five minutes later, there was a

fourth note. It stated,

“(1) Did [defendant] act [with] an awareness that his

conduct was assaultive. Yes/No

“(2) [H]is conduct would cause physical injury[.] Yes/

No

2

A dynamite instruction is designed to “blast loose” a deadlocked jury. State

v. Marsh, 260 Or 416, 419, 490 P2d 491 (1971), cert den, 406 US 974 (1972).

88 State v. Sell

“(3) [H]is [a]ssaultive conduct in fact caused O’Connor’s

physical injury. Yes/No

“Are these the 3 questions for assault? That need to be

answered. Having difficulty with [question] that he actu-

ally caused injury[.]”

The trial court commented to defense counsel and the pros-

ecutor that the jury appeared to be “all tied up” on the first

count. At 4:02 p.m., the trial court responded,

“Dear Jury:

“I urge you to review all of the instructions and remem-

ber to view the instructions as a whole. Please continue

deliberating. You may continue deliberating tonight or you

may come back in the morning to continue deliberating.”

At around 4:45 p.m., the trial court received two

more notes. The fifth note said:

“Your Honor,

“We are having difficulty because of the couple (mar-

ried) refusal to accept compromise (and reason to believe

bias). Myself and others are extremely frustrated.

“Because of the frustration they’ve caused, I don’t know

if I can give a[n] absolute decision. We either need to replace

these jurors, or please remove me from the panel because

my infuriation may affect my decision.

“Thanks for your consideration.

“[Signed]”

(Underscoring in original.) The sixth note asked, “May we

adjourn and [r]eturn in the morning. Thank you.”

After reading the notes, the trial court was reluc-

tant to release the jurors because “I don’t think that we are

[going to] have 12 of them come back here tomorrow.” The

trial court proposed instructing the jury to continue deliber-

ating until 6:00 p.m., and, after that, they would come back

in the morning. As explained by the trial court, “Maybe that

will push the parties to realize that they’re [going to] have

to be sitting in a room together, at least until six o’clock

Cite as 328 Or App 82 (2023) 89

tonight. And so maybe if some of them hate each other so

much, maybe they can reach an agreement, I suppose.”

The prosecutor agreed with the proposal. Defense

counsel was more concerned, especially regarding the fifth

note, which indicated that there were two jurors who were

“refusing to accept compromise,” that the other ten may be

pressuring them, and defense counsel was also concerned

about the person who wrote the note. Based on that fifth

note, defense counsel moved for a mistrial.

The trial court was unwilling to declare a mistrial

after only three hours of deliberations. Instead, the trial

court sent another note to the jury at 4:56 p.m. It stated:

“Dear Jury:

“Continue deliberating. We will adjourn for the day at

6:00 p.m. unless you have reached a verdict before then. In

the event you do not reach a verdict this evening, each of

you will need to return tomorrow at 9:00 a.m. to continue

deliberating.”

Defense counsel did not object “to the phrasing of the note.”

Later, there was a seventh note. It stated, “Did the

officer testify as to the amount of pain? Or if it resulted in

his [in]ability to function? Did that officer work the rest of

the day[?]” The trial court responded by sending the jury a

note at 5:36 p.m. It stated:

“Dear Jury:

“As I stated earlier:

“ ‘At the end of the trial, you will have to make your deci-

sion based on what you recall of the evidence. You will not

have a written transcript to consult. I urge you to pay close

attention to the testimony as it is given. If at any time, you

cannot hear a question or answer, let me know immediately

by raising your hand.’

“Continue deliberating. Do no leave or stop deliberating

until I formally release you.”

Shortly thereafter, the jury returned a verdict, finding

defendant guilty on all three counts. After confirming that

the verdicts were unanimous, the trial court released the

jury. Defendant appeals.

90 State v. Sell

II. ANALYSIS

A. Defendant’s Motion for a Mistrial

We review the denial of a motion for a mistrial for

abuse of discretion. State v. Garrett, 292 Or App 860, 864,

426 P3d 164, rev den, 363 Or 744 (2018). Abuse of discretion

is a “daunting standard of review that gives the trial court’s

decision great deference.” State v. Woodall, 259 Or App 67,

74, 313 P3d 298 (2013), rev den, 354 Or 735 (2014). An abuse

of discretion occurs “only when the court’s ruling is not one

of several legally correct outcomes.” Id. (internal quotation

marks omitted).

In reviewing the trial court’s ruling on a motion

for a mistrial, we consider whether “a defendant’s ability to

obtain a fair trial has been impaired.” State v. Arreola, 250

Or App 496, 500, 281 P3d 634, rev den, 353 Or 103 (2012)

(internal quotation marks omitted). A fair trial is one in

which “the verdict is based on the evidence and not on fac-

tors external to the proof at trial.” State v. Osorno, 264 Or

App 742, 748, 333 P3d 1163 (2014) (internal quotation marks

omitted). When a defendant claims that the jury could not

follow instructions, the defendant must show an “over-

whelming probability” that the jury failed to do so. Garrett,

292 Or App at 868 (internal quotation marks omitted).

Defendant argues that the notes from the jury

“reflected both an overwhelming probability that jurors

were unable to follow the court’s instructions and the coer-

cion of the minority jurors’ conscientiously held opinions.”

Defendant moved for a mistrial after the fifth note, in which

a juror expressed frustration regarding a married couple,

whom the juror viewed as biased and as refusing to accept

compromise. The juror also indicated that her infuriation

may affect her own decision.

However, by that time, the jury had been deliberat-

ing for less than three hours. Declaring a mistrial is “a dras-

tic remedy to be avoided if possible.” Woodall, 259 Or App

at 75 (internal quotation marks omitted). Instead of doing

so, the trial court told the jury to continue deliberating,

but that the court would adjourn at 6:00 p.m. and the jury

would have to return the following day if it had not reached

Cite as 328 Or App 82 (2023) 91

a verdict by then. As explained more fully below, we can-

not conclude that the jurors could no longer be impartial,

and, given that the jury had been deliberating for only three

hours, we cannot say that the trial court abused its discre-

tion when it decided not to declare a mistrial. See State v.

Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (“If the trial

court’s decision was within the range of legally correct dis-

cretionary choices and produced a permissible, legally cor-

rect outcome, the trial court did not abuse its discretion.”).

Defendant claims that he did not receive a fair trial

because the jury was unable to follow the court’s instruc-

tions. Admittedly, the jury was instructed not to “tell any-

one, including me, how many of you are voting not guilty

or guilty until you have reached a lawful verdict or have

been discharged.” Despite that instruction, the first note

indicated that the jury was evenly divided on one count, the

third note stated that the jury could not “reach an agree-

ment” on the first count, and the fifth note suggested that

a married couple on the jury was refusing “to accept com-

promise” and causing other jurors to be “extremely frus-

trated.” (Underscoring in original.) Although those notes

are troubling, they did not mandate declaring a mistrial.

See Garrett, 292 Or App at 867-68 (finding no abuse of dis-

cretion in denial of defendant’s motion for mistrial despite

the jury’s disclosure of its voting posture).

Instead, the record could be read to indicate that

the jury was committed to its task and took its role seri-

ously. For example, the fourth note, which concerned the

elements of the crime of assaulting a public safety officer,

shows that the jury grappled with the question of whether

the state proved those elements beyond a reasonable doubt.

As explained below, what it means to show that a defendant

“acted with an awareness that his conduct was assaultive

and would likely cause physical injury” is not straightfor-

ward, and that issue has prompted recent changes in the

law. See State v. Owen, 369 Or 288, 322, 505 P3d 953 (2022)

(holding that in a prosecution for second-degree assault,

the state, at a minimum, must prove that a defendant was

criminally negligent with respect to the injury element of

the crime); see also State v. McKinney/Shiffer, 369 Or 325,

92 State v. Sell

333-34, 505 P3d 946 (2022) (applying Owen). That the jury

had a difficult time working through that question shows

that it was performing its role, despite frustration regard-

ing the length of the process and some tension among the

jurors. The record does not show that there was an “over-

whelming probability” that the jury was unable to follow the

instructions regarding the charges.

Defendant argues that the fifth note indicates that

“a minority of jurors were being coerced to change their con-

scientiously held opinions, especially in light of the earlier

note expressing impatience with the process and the fear

of losing employment if deliberations continued.” Defendant

contends that some of the jurors may have pressured others,

including the married couple, to change their vote.

Evidently, the jurors had differing initial opinions

about whether the evidence satisfied the elements of the

crime of assault, and, although some jurors expressed

frustration, we might expect a conscientious jury to have

difficulty with whether the state met its burden of proof,

especially in a case like this one, in which no one testified

that they observed defendant landing a kick or a punch on

O’Connor. Although it is unusual for a jury to send seven

notes to the trial court, the jury’s expressions of frustration

regarding its deliberations about a complex issue do not

establish that the verdict was based on factors external to

the proof at trial, or that defendant was otherwise denied

his right to a fair trial. In addition, based on her expressions

of frustration alone, we cannot conclude that the juror who

penned the fifth note decided the case based on factors exter-

nal to the law and the facts. See Pachl v. Zenon, 145 Or App

350, 360 n 1, 929 P2d 1088 (1996), rev den, 325 Or 621 (1997)

(“A fair trial occurs when the verdict is based on the evi-

dence and not on factors external to the proof at trial.”).

Finally, it is not clear whether defendant preserved

a challenge to the trial court’s supplemental notes given in

response to juror questions, but, assuming without deciding

that he did, we determine that the supplemental notes were

not coercive. The trial court did not implore or pressure the

jury to reach a verdict, it did not encourage any jurors to

reconsider their positions, and the trial court said nothing

Cite as 328 Or App 82 (2023) 93

about avoiding the time and expense of a retrial. Cf. State

v. Marsh, 260 Or 416, 436-37, 490 P2d 491 (1971), cert den,

406 US 974 (1972) (“The reference to a retrial if the jury did

not reach a verdict was improper * * *. Also improper was

the statement that ‘it is incumbent upon you to reach a ver-

dict’ * * *.”). Instead, the supplemental notes simply told the

jurors to continue deliberating, to consider the instructions

as a whole, and that they might have to return the follow-

ing day. See State v. Claridy, 29 Or App 435, 440, 563 P2d

1239 (1977) (“The simple request by the court that the jury

continue its deliberations was * * * neither inappropriate nor

coercive.”). We therefore reject defendant’s first assignment

of error.

B. The failure to instruct the jury regarding a culpable men-

tal state for the injury element of the crime of assault of a

public safety officer

In his second assignment, defendant argues that

the trial court erred when it failed to instruct the jury that

the state was required to prove that defendant was at least

criminally negligent with respect to the injury element of

the crime of assaulting a public safety officer. This case was

tried before that rule was announced in Owen, 369 Or at

322, and defendant did not object to the trial court’s fail-

ure to properly instruct the jury. Accordingly, defendant

requests plain-error review.

The state responds that there was no error, let

alone plain error, because the jury was instructed that the

state had to prove that defendant “knowingly caused phys-

ical injury” to O’Connor, and the jury was told that “know-

ingly caused physical injury,” means that defendant “acted

with an awareness that his conduct was assaultive and

would likely cause physical injury.” According to the state,

that instruction “more than adequately conveyed to the jury

that defendant had to have acted with, at the least, crim-

inal negligence as to the physical injury element. Indeed,

if defendant needed to know that his conduct would likely

cause physical injury, then he must have acted with crimi-

nal negligence.” (Emphasis in original.)

As we explain below, we conclude that the failure

to instruct the jury regarding a culpable mental state was

94 State v. Sell

a plain error, but the state’s argument regarding the spe-

cific instruction provided has more weight when considering

whether to exercise our discretion to correct the error. To

constitute plain error, an error must be one of law, it must be

obvious and not reasonably in dispute, and the error must

be apparent on the record without having to choose among

competing inferences. State v. Vanornum, 354 Or 614, 629,

317 P3d 889 (2013). When the trial court makes a plain

error, it is a matter of discretion whether we will correct it.

State v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006).

Here, the jury was not instructed that defendant

had to be at least criminally negligent with respect to the

injury element of the crime.3 That error was one of law, it

is not reasonably in dispute after the Supreme Court’s

decision in Owen, and it appears on the face of the record.

Accordingly, the trial court plainly erred. See State v. Ulery,

366 Or 500, 503, 464 P3d 1123 (2020) (plain-error analysis

depends on “the law at the time of the appellate decision”).

We turn then to whether we should correct the error.

As we recently explained in State v. Horton, 327 Or App

256, 262, ___ P3d ___ (2023), if an error is harmless, then

we have no discretion and must affirm. Although harm-

lessness is often a difficult analysis, it is especially difficult

when considering instructional errors regarding the mental

state associated with elements of a crime because we must

“assess whether the jury might have found that element to

be unproved, had it been instructed on it.” Id. at 263. In

other words, “the issue is not whether a jury could have

found defendant to have the requisite mental state on this

record; rather, it is whether there is some likelihood that

the jury might not have been persuaded that he had the

requisite mental state, had it considered that issue.” State v.

Stone, 324 Or App 688, 695, 527 P3d 800 (2023) (emphases

in original).

Here, like in Horton, 327 Or App at 263-64, we can-

not conclude that the error was harmless. No one testified

3

Criminal negligence “means that a person fails to be aware of a substantial

and unjustifiable risk that the result will occur * * *. The risk must be of such

nature and degree that the failure to be aware of it constitutes a gross deviation

from the standard of care that a reasonable person would observe in the situa-

tion.” ORS 161.085(10).

Cite as 328 Or App 82 (2023) 95

that they saw defendant land a kick or a punch on O’Connor,

and defense counsel argued in closing that O’Connor’s injury

may have been involuntarily caused by defendant’s metallic

handcuffs while defendant was being thrown to the ground

by the officers. In addition, the jury’s fourth note during

deliberations shows that they struggled with the elements

of the crime of assault on a public safety officer, and that

they were having “difficulty” determining whether defen-

dant “actually caused injury.” Based on those factors, there

is at least some possibility that the jury might not have been

persuaded that defendant was at least criminally negligent

with respect to the injury element of the crime of assault on

a public safety officer.

Next, we consider whether we should exercise our

discretion to correct defendant’s unpreserved error. Horton,

327 Or App at 264. “Even if an error does not qualify as

harmless, our assessment of where it falls on the spectrum

of likelihood of having affected the verdict can be an import-

ant consideration to the exercise of discretion. The likelihood

that the error affected the outcome goes to its gravity and to

the ends of justice.” Id. (internal quotation marks omitted).

Here, even though there is some likelihood that

the verdict might have been different, based on the specific

instruction provided, the prosecutor’s argument during clos-

ing, and the evidence presented at trial, we conclude that

“it is an extremely low likelihood.” Id. at 266. The specific

jury instruction at issue in this case is somewhat unusual.

It provided that the state was required to prove not only

that defendant “acted with an awareness that his conduct

was assaultive,” but also that he was aware that his con-

duct “would likely cause physical injury.” Furthermore, as

the prosecutor put it during closing arguments, there was

evidence that defendant “was so assaultive [that] it took

three officers to deal with him.” The jury heard testimony

from the officers that defendant was “thrashing, and kick-

ing, and rolling, and screaming at” the officers, and they

also watched body camera footage of the altercation. Based

on that evidence of defendant’s violent conduct and based on

the jury’s finding that defendant was aware that his conduct

would likely cause physical injury, there is an extremely low

96 State v. Sell

likelihood that the jury would not have found that defendant

was at least criminally negligent with respect to the injury

element of the crime. Accordingly, we are not persuaded

that the gravity of the error or the ends of justice warrant

exercising our discretion to correct the state’s plain error.

We therefore affirm defendant’s conviction for assaulting a

public safety officer.

C. The failure to instruct the jury regarding a culpable men-

tal state for the risk-of-injury element of resisting arrest

In a supplemental assignment of error, defendant

argues that the trial court erred when instructing the jury

regarding the crime of resisting arrest. ORS 162.315(1)

provides that “[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 making an arrest.” The statute defines “resist”

as “the use or threatened use of violence, physical force or

any other means that creates a substantial risk of physi-

cal injury to any person and includes, but is not limited to,

behavior clearly intended to prevent being taken into cus-

tody by overcoming the actions of the arresting officer.” ORS

162.315(2)(c).

In State v. Tow, 321 Or App 294, 298, 515 P3d 936

(2022), we concluded that “the trial court plainly erred when

it did not instruct the jury that it had to find that defendant

acted with a culpable mental state with respect to ‘the sub-

stantial risk of physical injury’ element in ORS 162.315(2)(c).”

In Tow, which was a case in which there was “contradicting

evidence regarding whether defendant kicked and flailed his

legs when the officers attempted to get him into the police

car, and [in which] there was a dispute about whether or not

some of defendant’s movements were voluntary,” we deter-

mined that the jury instruction error was not harmless.

Id. at 298-99.

The state responds to the supplemental assignment

of error by acknowledging that the trial court plainly erred

under Tow, but the state argues that the error was harm-

less. Based on Tow, we agree with the state that the trial

Cite as 328 Or App 82 (2023) 97

court plainly erred. However, unlike in Tow, the error was

harmless.

Here, there was evidence that defendant was so

resistant that it took three officers to place him under arrest

and get him into the patrol car. Unlike in Tow, there was

no “contradicting evidence” regarding defendant’s conduct;

instead, the evidence shows that defendant was “thrash-

ing, and kicking, and rolling, and screaming at” the offi-

cers. Although defendant argued in closing that O’Connor’s

injury may have been caused by an involuntary movement

of defendant while he was being thrown to the ground by

three officers, there was ample evidence that he intention-

ally resisted the officers by engaging in violent behavior

that posed a substantial risk of physical injury. Indeed, even

after the officers managed to secure defendant in the back

of the patrol car, defendant continued “thrashing around,”

and he was “bashing his head into the Plexiglas and trying

to kick out the windows.”

In addition to the undisputed evidence regarding

defendant’s conduct, when considering Count 1, the jury

found that defendant knew or was aware that his conduct

“would likely cause physical injury.” As a result, if the jury

had been properly instructed regarding the elements of

resisting arrest, then its prior finding necessarily entails

that the jury would also have found that defendant was at

least criminally negligent with respect to whether there was

a substantial risk of physical injury. Because the error in

the jury instruction regarding resisting arrest was harm-

less, we affirm defendant’s conviction for resisting arrest.

Affirmed.