State v. Grennell

106                    June 5, 2024                 No. 382

   This is a nonprecedential memorandum opinion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.
            KELLI ELIZABETH GRENNELL,
                 Defendant-Appellant.
               Polk County Circuit Court
                 22CR18312; A180189

  Monte S. Campbell, Judge.
  Submitted April 24, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
  AOYAGI, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)            107

        AOYAGI, P. J.
         Defendant was convicted of resisting arrest and
attempted assault on two public safety officers. On appeal,
she raises two assignments of error, both unpreserved.
First, she argues that the prosecutor’s handling of voir dire
denied her a fair trial. Second, she argues that the trial
court plainly erred by failing to instruct the jury that, to
find defendant guilty of resisting arrest, it had to find that
she was at least criminally negligent as to a “substantial
risk of physical injury.” For the following reasons, we affirm.
         Voir dire. During voir dire, some prospective jurors
described negative encounters with police officers. One
described being falsely accused of a traffic violation and contesting it. Another described being falsely accused of, but
not charged with, crashing her car and then reporting it stolen. In that context, the prosecutor asked Juror 2 whether
Juror 2 thought that “when we get charges we just pursue
them very quickly.” Juror 2 answered no. The prosecutor
asked, “How much do you think we do before we go to trial?”
Juror 2 answered that there was probably a lot of leg work,
depending on the charges, and hopefully talking to witnesses and the police. The prosecutor added, “Yeah, watch
body camera footage, have photos, all of that?” Any response
to that question was nonverbal. The prosecutor continued,
“Does anyone think we don’t do that? Do you think we would
go to trial if we didn’t believe it was true?” An unidentified
juror answered, “Depends what city you’re in.” The prosecutor said, “That’s fair,” and suggested, “What about here?
Chicago? Maybe.” An unidentified juror (perhaps the same
one) said, “San Francisco.” The prosecutor then moved to a
different subject.
         On appeal, defendant argues for the first time
that the prosecutor’s handling of voir dire denied her a fair
trial. Because defendant did not object in the trial court,
our review is limited to plain error. ORAP 5.45(1); State v.
Vanornum, 

, 

 (2013) (an error is
“plain” when it is an error of law, the legal point is obvious
and not reasonably in dispute, and the error is apparent on
the record without our having to choose among competing
inferences). In the plain-error context, a conviction may be
108                                         State v. Grennell

reversed based on prosecutorial statements to the jury only
“if it is beyond dispute that the prosecutor’s comments were
so prejudicial as to have denied defendant a fair trial.” State
v. Chitwood, 

, 

 (2022) (addressing
prosecutorial statements in closing argument) (internal quotation marks omitted). Further, “we may reverse on plain-error review only if the statements were so egregious that
striking them or giving a curative instruction would have
been insufficient.” State v. Durant, 

, 

 (2023); see also State v. Soprych, 

, 

 (2022) (holding, albeit in a preserved posture, that a prosecutor’s statements in voir dire necessitated
a mistrial).
         Here, we are unpersuaded that the prosecutor’s
statements rose to that level. The prosecutor’s statements
indicated that the state would not prosecute a case without investigating it and believing “it was true.” There is a
degree to which jurors are likely to assume that the state
believes it can prove its case. Putting that in terms of the
state “believ[ing] it is true” is problematic, however, as it
could be perceived as vouching for the state’s witnesses.
Had an objection been made, the state could have clarified,
or given the generality of the remark, the trial court could
have given a curative instruction. Any impropriety was not
so egregious as to deny defendant a fair trial and require a
mistrial. Cf. Chitwood, 

 (in rebuttal closing,
the prosecutor relied on facts not in evidence, encouraged
the jury to decide the case on an improper basis, and distorted the state’s burden of proof); State v. Pierpoint, 

, 

 (2023) (in rebuttal closing,
the prosecutor implied that a grand jury had already determined the defendant’s guilt and improperly commented on
the defendant’s decision not to testify); Soprych, 

 (during voir dire, the prosecutor undermined the presumption of innocence and conditioned the jury to believe
that the defendant was obviously guilty). We reject defendant’s first assignment of error.
         Jury instruction. Defendant argues, the state concedes, and we agree that the trial court plainly erred by
failing to instruct the jury that, to find defendant guilty of
Nonprecedential Memo Op: 

 (2024)             109

resisting arrest, it had to find that she acted with at least
criminal negligence as to the “substantial risk of physical
injury” element of the crime. See State v. Tow, 

, 

 (2022) (“In light of recent cases on the
law of culpable mental states, we conclude 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 substantial risk of physical injury’ element in
ORS 162.315(2)(c).”). We agree with the state, however, that
the error was harmless and thus not a basis for reversal of
defendant’s conviction. See State v. Horton, 

, 

 (2023) (“We cannot reverse a judgment
based on a harmless error[.]”).
         A person acts with criminal negligence when the
person “fails to be aware of a substantial and unjustifiable
risk that the result will occur” and the risk is “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). In
assessing whether omission of a mental-state instruction
was harmless, “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, 

, 

 (2023) (emphases
in original)).
          In this case, the resisting arrest charge was based
on the same conduct as the charges for attempted assault
on a public safety officer. In finding defendant guilty of
attempted assault, based on the instructions that it received
on attempted assault, the jury necessarily found that defendant consciously chose to engage in that conduct and intentionally attempted to cause physical injury to the two police
officers. Under the circumstances, there is no meaningful
likelihood that, had the jury been properly instructed on the
mental-state requirement for the “substantial risk of physical injury” element of resisting arrest, it would have found
that she was not criminally negligent as to that element.
See State v. Owen, 

, 

 (2022) (the
110                                       State v. Grennell

jury’s findings that the defendant knew that his conduct was
assaultive and “readily capable of causing serious physical
injury” indicated that it would not have found that he was
unaware that his conduct created a risk of physical injury).
We reject the second assignment of error.
        Affirmed.