State v. Haight

176                    July 31, 2024               No. 536

   This is a nonprecedential memorandum opinion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.
                PHILLIP DEAN HAIGHT,
                  Defendant-Appellant.
                Polk County Circuit Court
                  20CR62612; A177115

  Rafael A. Caso, Judge.
  Submitted July 6, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
  JACQUOT, J.
   Conviction on Count 3 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2024)                             177

           JACQUOT, J.
         In his sole assignment of error, defendant challenges
his resisting arrest conviction, ORS 162.315 (Count 3),
arguing that the trial court plainly erred when it failed
to instruct the jury that a culpable mental state attaches
to the “substantial risk of physical injury” element of that
crime.1 The state concedes that the trial court plainly erred,
and we agree. See State v. Tow, 

, 

 (2022) (“[T]he 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).”). The
disputes in this case are whether the error was harmless
and whether we should exercise our discretion to correct it.
For the following reasons, we conclude that the error was
not harmless, and we exercise our discretion to correct it.
         At trial, evidence showed that a deputy tried to pull
defendant over for a traffic violation. Defendant did not stop;
instead, he drove about one mile home. After getting out of
his truck, defendant disobeyed the deputy’s orders to stop
and headed towards his house. A second deputy shot defendant with his taser and discharged two five-second shocks
to defendant. But the taser did not stop defendant, who ran
into his house. A short time later, defendant appeared at
the door. The two deputies grabbed his arms and tried to
pull him outside. Defendant attempted to retreat back into
his home, pulling the deputies along with him and “kind of
twisting.” But with the help of a third deputy, they were able
to pull defendant out of the house. When defendant did not
put his hands behind his back and pulled away, one deputy
jumped onto defendant’s back and another used a leg sweep
to finally get defendant to the ground. The area where the
arrest occurred was muddy, and defendant had a soft cast
on his left hand from a surgery, which became loose during
the arrest. Defendant continued to twist his body and use
his strength in a way that made it difficult for the deputies
to handcuff him. One deputy “was holding [his] weight on

     1
       Defendant does not challenge his convictions for fleeing or attempting to
elude a police officer, ORS 811.540 (Counts 1 and 2), or interfering with a peace
officer, ORS 162.247 (Count 4).
178                                                          State v. Haight

[defendant’s] head to keep him from getting up because it
seemed like he was trying to get up.”
          The crime of resisting arrest occurs when a person
“intentionally resists a person known by the person to be a
peace officer … in making an arrest.” ORS 162.315(1). In
relevant part, “resists” means that a person uses or threatens the use of “violence, physical force or any other means
that creates a substantial risk of physical injury to any person ….” ORS 162.315(2)(c). Because a culpable mental state
of at least criminal negligence attaches to the “substantial
risk of physical injury” element,2 a properly instructed jury
would have had to find (1) that defendant failed to be aware
that he was creating a substantial risk of physical injury
and (2) that that risk was “of such nature and degree that
the failure to be aware of it constitute[d] a gross deviation
from the standard of care that a reasonable person would
observe in the situation.” ORS 161.085(10) (defining “criminal negligence”).3
         In assessing whether the 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 jury could have concluded that pulling away from the deputies and twisting on
the ground was not such egregious and risky conduct that
failing to be aware of the risk of injury was a “gross deviation” from the standard of care. We are not persuaded by the
     2
       Oregon courts have not addressed the exact culpable mental state required
for the “substantial risk of physical injury” element on this offense. See Tow, 

 (declining to decide which mental state applies). We need not make
that determination here, so we assume, without deciding, that the applicable culpable mental state is criminal negligence. See State v. Dye, 

, 

 (2023) (assuming, without deciding, that “the correct mental state for the
‘substantial risk of injury’ element of resisting arrest is, at a minimum, criminal
negligence”).
     3
       The jury could also have convicted defendant if it determined that he had
acted intentionally, knowingly, or recklessly. See ORS 161.115(3) (“If the definition of an offense prescribes criminal negligence as the culpable mental state, it
is also established if a person acts intentionally, knowingly, or recklessly.”).
Nonprecedential Memo Op: 

 (2024)            179

state’s argument that the use of force by the deputies in this
situation compels the conclusion that defendant was more
likely to be injured by pulling away than by submitting to
arrest and handcuffing after all that had already occurred
as a result of defendant’s initial traffic violation.
         Because the error here was not harmless, and the
interests of justice weigh in favor of allowing defendant to
present his case to a properly instructed jury, we exercise
our discretion to correct the error. See State v. Allen, 

, 

 (2022) (reversing and
remanding conviction for first-degree assault due to failure
to give mental state jury instruction because jury may not
have found that the defendant “acted with criminal negligence that his conduct would cause serious physical injury”
even if the circumstances made it likely it would have found
“physical injury”). Resisting arrest is a person Class A misdemeanor that could have sentencing impacts in the future.
See OAR 213-003-0001(15) (including ORS 162.315 as a
“Person Class A misdemeanor”); OAR 213-004-0008 (“Every
two prior adult convictions of person Class A misdemeanors
in the offender’s criminal history shall be counted as one
adult conviction of a person felony for criminal history purposes.”). The state has no legitimate interest in upholding
an erroneously obtained conviction, and defendant is entitled to have a properly instructed jury make a decision on
the resisting arrest count.
       Conviction on Count 3 reversed and remanded;
remanded for resentencing; otherwise affirmed.