No. 325 May 15, 2024 621
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JERRY ALLEN CALDWELL,
Defendant-Appellant.
Tillamook County Circuit Court
20CR65879; A178638
Mari Garric Trevino, Judge.
Submitted January 19, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
622 State v. Caldwell
MOONEY, J.
Defendant appeals a judgment of conviction, based
on a jury verdict, for resisting arrest, Count 1, ORS 162.315,1
third-degree escape, Count 2, ORS 162.145, and harassment, Count 3, ORS 166.065(3). He challenges only his
convictions on Counts 1 and 3. He first assigns error to the
trial court’s denial of his motion for judgment of acquittal
(MJOA) with respect to the harassment count, arguing that
there was insufficient evidence that he intended to harass or
annoy the victim. Having reviewed the record, we conclude
that the evidence was sufficient, and the trial court did not
err in denying defendant’s MJOA. We therefore reject that
assignment without further discussion.
Defendant next assigns error to the trial court’s failure to instruct the jury about the required mental state for
the “substantial risk of physical injury” element of resisting
arrest. The state concedes that the court plainly erred by
not so instructing the jury, and we accept that concession.
See State v. Tow, 321 Or App 294, 298,
515 P3d 936 (2022)
(trial court plainly erred in failing to instruct the jury that
resisting arrest requires a culpable mental state for the
risk-of-injury element). We nevertheless conclude that the
instructional error was harmless, and we affirm. See State
v. Horton,
327 Or App 256, 262,
535 P3d 338 (2023) (explaining that we “cannot reverse a judgment based on a harmless
error, so if the error was truly ‘harmless,’ then we have no
discretion and must affirm”).
Instructional error is harmless if there is “ ‘little likelihood that the error affected the verdict.’ ” State v.
1
ORS 162.315 provides, as pertinent:
“(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 or parole
and probation officer in making an arrest.
“(2) As used in this section:
“…
“(c) ‘Resists’ 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, but is not limited to, 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 an
officer. Passive resistance does not constitute behavior intended to prevent
being taken into custody.”
Nonprecedential Memo Op: 332 Or App 621 (2024) 623
Owen,
369 Or 288, 323,
505 P3d 953 (2022) (quoting State v.
Davis,
336 Or 19, 33,
77 P3d 1111 (2003)). The jury here was
instructed that in order to find defendant guilty of resisting
arrest, they would have to find that he intentionally used
or threatened to use violence, physical force, or any other
means that created a substantial risk of physical injury to
any person to prevent being taken into custody. Given that
instructional backdrop and the fact that the jury viewed a
video recording of the arrest that included audible warnings
by the arresting officer to defendant that he was “going to
get hurt,” followed by defendant exclaiming that it “hurts”
as the officer attempted to handcuff him, we conclude that
there is little likelihood that the instructional error affected
the verdict.
Affirmed.
