State v. Miles

No. 1                 January 4, 2024                      1

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              GABRIEL ESEQUIEL MILES,
                 Defendant-Appellant.
              Douglas County Circuit Court
                 20CR20105; A178460

   Kathleen E. Johnson, Judge.
   Submitted August 30, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary M. Reese, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   EGAN, J.
   Reversed and remanded for merger of guilty verdicts for
strangulation constituting domestic violence (Count 1) and
fourth-degree assault constituting domestic violence (Count
2) and entry of a single conviction for strangulation constituting domestic violence; remanded for resentencing; otherwise affirmed.
2   State v. Miles
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           EGAN, J.
          Defendant appeals a judgment of conviction
for strangulation constituting domestic violence,1 ORS
163.187(4) (Count 1); fourth-degree assault constituting
domestic violence, ORS 163.160(2) (Count 2); assaulting a
public safety officer, ORS 163.208 (Count 3); and resisting
arrest, ORS 162.315 (Count 4). In his first two assignments
of error, defendant argues that the trial court plainly erred
by failing to instruct the jury that a culpable mental state
attached to the injury elements of the crimes of assaulting a
public safety officer (Count 3) and resisting arrest (Count 4).
In his third assignment of error, defendant argues that the
trial court plainly erred by failing to merge the guilty verdicts for strangulation constituting domestic violence (Count
1) and fourth-degree assault constituting domestic violence
(Count 2). For the reasons explained below, we reverse and
remand with instructions to merge defendant’s guilty verdicts on Counts 1 and 2; otherwise, we affirm.
         Defendant’s First and Second Assignments of Error.
Defendant did not preserve these assignments of error, and
he requests that we review them for plain error pursuant to
ORAP 5.45(1). If the trial court committed plain error, we
must determine whether to exercise our discretion to correct
it. See Ailes v. Portland Meadows, Inc., 

, 382 n 6,

 (1991) (listing factors to consider in deciding to
exercise discretion).
         In his first assignment, defendant argues that the
trial court plainly erred by not instructing the jury that a
culpable mental state attached to the result element, “physical injury,” of assaulting a public safety officer. Assuming
that the correct mental state for the “physical injury” element of assaulting a public safety officer is, at a minimum,
     1
       The indictment entitled this charge as “strangulation,” but the body of the
indictment, under Count 1, alleged that “defendant’s conduct constituted domestic violence.” Consistent with the substantive allegations and the state’s theory
of the case at trial, the jury instructions also included the elements of domestic
violence, and the jury returned a verdict of guilty on “strangulation constituting
domestic violence.” In the judgment, however, the conviction was denominated
“strangulation.” The denomination in the judgment appears to be a clerical error.
See State v. Selmer, 

, 

 (2009), rev den, 

 (2010) (vacating and remanding for entry of a corrected judgment where the
judgment misstated the crime of conviction).
4                                                             State v. Miles

criminal negligence,2 we accept the state’s concession that
the court plainly erred in failing to instruct the jury on the
requisite mental state. See State v. Sell, 

,

 (2023) (concluding that this type of error is
“one of law, it is not reasonably in dispute after the Supreme
Court’s decision in [State v. Owen, 

, 

 (2022)], and it appears on the face of the record”).
Nevertheless, we are not convinced that the circumstances
of this case are such that the “ends of justice” require us
to overlook the strong policies requiring preservation. Ailes,

 n 6. Here, the jury found that defendant acted
“knowingly” when he punched a safety officer in the face.
Because punching a person in the face is an act that inherently poses a risk of injury, we are not persuaded that the
likelihood that the jury would not have found that defendant
was at least criminally negligent with respect to that risk is
enough that enforcing the strong policies requiring preservation would be unjust in these circumstances. See State v.
Roy, 

, 

 (2015), rev den, 

 (2016) (concluding that the likelihood that the trial
court’s failure to instruct the jury affected the verdict did
not outweigh the strong policies requiring preservation).
         In his second assignment of error, defendant argues
that the trial court plainly erred by not instructing the jury
that a culpable mental state attached to the result element,
“substantial risk of physical injury,” of resisting arrest. Here,
again assuming that the correct mental state for the “substantial risk of physical injury” element of resisting arrest
is, at a minimum, criminal negligence, given the facts and
instructions to the jury, we are not convinced that the circumstances of this case warrant our exercise of discretion
to consider and correct that alleged error. Here, not only did
the jury find that defendant knowingly punched the officer
twice in the face, but there was also evidence that defendant
pulled away from the officers when they tried placing him
in handcuffs, kicked one officer in the abdomen while he
was on the ground, and attempted to “bum-rush” the other

    2
      Criminal negligence requires that defendant “fail[ed] to be aware of a substantial and unjustifiable risk” such 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).
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officer when she threatened to tase defendant. Given that
there was ample evidence that defendant engaged in violent
behavior that posed a substantial risk of physical injury, we
conclude that the “ends of justice” do not weigh in favor of
reversal. See Ailes, 

 n 6.
         Defendant’s Third Assignment of Error. Defendant
argues that, under ORS 161.067(1), the trial court plainly
erred when it failed to merge the guilty verdicts for strangulation constituting domestic violence (Count 1) and fourth-degree assault constituting domestic violence (Count 2). The
state responds that any error is not plain and urges us to
reject defendant’s argument for that reason. We conclude
that, pursuant to ORS 161.067(1) and State v. Renard, 

, 

, rev den, 

 (2022), the
alleged error is plain.
         To review for plain error, several requirements
must be met: The error (1) must be an error “of law”; (2) that
is “apparent,” meaning the legal point is obvious and not
reasonably in dispute; and (3) that appears “on the face of
the record.” State v. Reynolds, 

, 

, rev den, 

 (2012). When the trial court
makes a plain error, it is a matter of discretion whether we
will correct it. State v. Gornick, 

, 

(2006) (citing Ailes, 

).
         Challenges to the application of ORS 161.067(1)
present a question of law. State v. Serbin, 

, 

 (2023). When considering merger and
interpreting ORS 161.067(1), a court must answer three
questions: “(1) Did defendant engage in acts that are the
same conduct or criminal episode, (2) did defendant’s acts
violate two or more statutory provisions, and (3) does each
statutory provision require proof of an element that the others do not.” 

 (internal quotation marks omitted).
If the answer to the first two factors is affirmative, but the
answer to the third is negative, merger is required. 

 (citing State v. Marks, 

, 

 (2022)).
        Because defendant’s strangulation and assault
charges were based on the same conduct against defendant’s
mother, the first two factors are clearly met. Therefore, the
6                                                State v. Miles

controlling question is whether the offense of fourth-degree
assault constituting domestic violence requires proof of an
element that is not also required for the offense of strangulation constituting domestic violence. ORS 135.230(3) defines
“domestic violence” as “abuse between family or household
members.” Here, the trial court instructed the jury on the
definitions for the first two forms of “abuse” provided in ORS
135.230(1), including that defendant “[a]ttempted to cause
or intentionally, knowingly or recklessly caused physical
injury.” When the element of “constituting domestic violence,”
ORS 132.586, is established with respect to an offense, and
the jury is instructed on the definition of “abuse” based on
domestic violence, the charged offense subsumes all of the
elements of the separately charged misdemeanor assault
offense. See Renard, 

 (concluding that
a charge that included the domestic violence allegation of
abuse by “[a]ttemp[ting] to cause or intentionally, knowingly
or recklessly caus[ing] physical injury” effectively described
assault in the fourth degree, and thus, subsumed the charge
of assault in the fourth degree and required merger).
         Here, defendant was charged with strangulation
constituting domestic violence, the jury was instructed as
to the definition of “abuse,” and defendant was found guilty
of strangulation constituting domestic violence. Thus, as
alleged, the charge of strangulation constituting domestic violence subsumed the charge of assault in the fourth
degree constituting domestic violence, and the guilty verdicts on these two offenses must merge. Because this error
is apparent on the face of the record, we conclude that the
trial court plainly erred.
         Having concluded that the trial court erred, we
must decide whether we should exercise our discretion to
correct the error. Ailes, 

 n 6.
         The state argues that we should not address the
plain error in this case, because it is inferable that defendant
intentionally chose not to object. We are not persuaded by the
state’s argument. Given that the state’s closing arguments,
the jury instructions, and the guilty verdict all denominated
Count 1 as strangulation constituting domestic violence, we
see no indication that defendant had reason to contemplate
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the lesser strangulation conviction. Furthermore, because
strangulation itself is a felony offense, we disagree that
defendant would have had a strategic reason for choosing
multiple convictions over a single—albeit aggravated—felony conviction.
         As we have explained in prior cases addressing
unpreserved merger claims, “although the effects of merger
are not always immediately apparent, they can be real and
varied.” State v. Hathaway, 

, 

, rev den, 

 (2006) (citing State v. Walraven, 

, 

, rev den, 

 (2003)). For
the same reasons provided in those prior cases, we exercise
our discretion to correct the plain error. See, e.g., State v.
Camacho-Alvarez, 

, 

 (2009)
(finding that “the burden on the judicial system in amending its judgment and resentencing defendant is minimal”
and “the ends of justice are served by convicting and sentencing defendant according to the law”).
          Reversed and remanded for merger of guilty verdicts for strangulation constituting domestic violence (Count
1) and fourth-degree assault constituting domestic violence
(Count 2) and entry of a single conviction for strangulation
constituting domestic violence; remanded for resentencing;
otherwise affirmed.