State v. Brandt

                                    722

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
  Submitted June 21, affirmed November 16, 2022, petition for review denied
                       February 23, 2023 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    JON LESLIE BRANDT,
                     Defendant-Appellant.
                  Douglas County Circuit Court
                     19CR53197; A174871


   Frances Elaine Burge, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Stacy M. Chaffin, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Affirmed.
Nonprecedential Memo Op: 

 (2022)                                   723

            ORTEGA, P. J.
         A jury found defendant guilty of one count of aggravated harassment, ORS 166.070(1)(c)—a felony—for propelling saliva at a public safety officer. On appeal, defendant
raises two unpreserved assignments of error, one challenging the court’s failure to instruct the jury on his culpable
mental state as to the official duty element of aggravated
harassment and the other challenging his 28-month prison
sentence as disproportionate under Article I, section 16,
of the Oregon Constitution. We reject defendant’s first
assignment because, assuming that the trial court plainly
erred, we conclude that the error was harmless. We reject
his second assignment without discussion because ORS
138.105(8)(a)(A) bars our appellate review.1 We therefore
affirm.
         Defendant’s claims arise from an incident in which
he propelled saliva at Detective Spingath, one of three law
enforcement officers who approached defendant while conducting an investigation in which defendant was a suspect.
For that incident, defendant was indicted with one count
of aggravated harassment, ORS 166.070(1)(c).2 At trial, the
three officers testified for the state. The state also introduced recordings of the officers’ two body cameras, showing Spingath’s interaction with defendant, although the
specific actions underlying the harassment charge were not
recorded. Expert witnesses—one for each party—testified
about defendant’s theory of diminished capacity.

    1
      For a sentence imposed on conviction of a felony, “[t]he appellate court
has no authority to review … [a] sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.” ORS
138.105(8)(a)(A).
    2
      ORS 166.070 provides:
         “(1) A person commits the crime of aggravated harassment if the person,
    knowing that the other person is a:
         “…
         “(c) Public safety officer, intentionally propels saliva at the public safety
    officer, and the saliva comes into physical contact with the public safety officer, while the public safety officer is acting in the course of official duty or as
    a result of the public safety officer’s official duties.
         “…
         “(2) Aggravated harassment is a Class C felony.”
724                                                           State v. Brandt

        The court gave the uniform instruction for aggravated harassment and did not instruct the jury about
whether the state was required to prove that defendant knew
that Spingath was acting in the course of Spingath’s official
duty as a law enforcement officer, nor did defendant object to
the given instructions. The jury convicted defendant.
         On appeal, defendant argues that the trial court
plainly erred because the court failed to instruct the jury
about defendant’s culpable mental state with respect to
whether Spingath was “acting within the course of his official duties” when defendant propelled saliva at Spingath.
The state disagrees, contending that the court did not plainly
err because it is arguable whether the official duty element
in ORS 166.070(1)(c) requires a culpable mental state and
that, regardless, any instructional error would have been
harmless.
        We need not resolve whether the trial court plainly
erred because, assuming that the trial court was required
to instruct the jury that defendant acted with, at a minimum, criminal negligence that Spingath was acting in the
course of his official duty,3 we are convinced that any error
was harmless.
         A trial court’s instructional error is harmless if
there is “little likelihood that the error affected the verdict.”
State v. Davis, 

, 

 (2003). To make
that determination, we consider the instructions “as a whole
and in the context of the evidence and record at trial, including the parties’ theories of the case with respect to the various charges and defenses at issue.” State v. Owen, 

, 

 (2022) (quoting State v. Payne, 

, 

 (2020)).
        In this case, reviewing the given instructions as
a whole and in the context of the evidence and record, we
     3
       We assume that the official duty element is a circumstance element because
it relates to the circumstances of the incident, rather than to a conduct or result.
See State v. Owen, 

, 

 (2022) (there are “three possible
categories of material elements, namely, a conduct, a circumstance, or a result”
(internal quotations marks omitted; citation omitted)); see also State v. Simonov,

, 

 (2016) (“Unless otherwise indicated for a particular offense … ‘circumstance’ elements require proof of a knowing, reckless, or
criminally negligent mental state.”).
Nonprecedential Memo Op: 

 (2022)                725

conclude that there is little likelihood that the jury would
have reached a different verdict had it been instructed as
defendant proposes. The court instructed the jury that, to
find defendant guilty, it must find that defendant “intentionally propelled saliva at … Spingath” and that defendant
“knew that … Spingath was a public safety officer.” The
court explained to the jury the definition of “knowledge” to
mean whether defendant “act[ed] with an awareness that
… Spingath was a public safety officer.” It did not instruct
the jury about whether defendant was aware that Spingath
was acting in his official capacity.
         Ultimately, the jury’s guilty verdict was based on
its decision to give credibility to the evidence presented to
prove the state’s theory that defendant acted intentionally
to project saliva at Spingath, knowing that Spingath was a
police officer, and that defendant had the capacity to understand what he was doing.
         Assuming that a minimum culpable mental state
applies to the official duty element, the state was required
to prove that defendant was at least criminally negligent as
to being aware of a risk that Spingath was acting within the
course of his official duties.
       “ ‘Criminal negligence’ … means that a person fails
   to be aware of a substantial and unjustifiable risk that [a]
   circumstance exists. 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 situation.”

ORS 161.085(10). Based on the jury’s findings that defendant
acted intentionally and with knowledge that Spingath was
a police officer, there is little likelihood that the jury would
not have concluded that defendant’s failure to be aware
of a substantial and unjustifiable risk that Spingath was
acting within the course of his official duty constituted a
gross deviation from the standard of care that a reasonable
person would observe in the situation. Hence, it is unlikely
that the jury would not have concluded that defendant was
criminally negligent. See State v. Shedrick, 

, 271-
72, 

 (2022) (instructional error as to criminal
726                                           State v. Brandt

negligence was harmless where it is unlikely that the jury
would not have concluded that the defendant was criminally
negligent).
         Accordingly, we reject defendant’s argument that a
juror could readily have doubted whether he acted with at
least criminal negligence as to whether Spingath was acting
in the course of his official duties. As the state contends,
even if the court had given the jury the disputed instruction, there is little likelihood that the jury would have found
otherwise. Therefore, the trial court’s error was harmless.
        Affirmed.