State v. Partin

No. 705              October 2, 2024                   357

   This is a nonprecedential memorandum opinion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.
              ALANNA NICOLE PARTIN,
                  Defendant-Appellant.
               Linn County Circuit Court
           19CR29418, 19CR06717, 19CR32073;
           A178761 (Control), A178762, A178763

  Rachel Kittson-MaQatish, Judge.
  Submitted July 16, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, 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 briefs for respondent.
  Alanna Nicole Partin filed the supplemental brief pro se.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
   In Case No. 19CR32073, conviction on Count 2 reversed
and remanded; remanded for resentencing; otherwise
affirmed. In Case No. 19CR29418, affirmed. In Case No.
19CR06717, affirmed.
358                                            State v. Partin

        HELLMAN, J.
         In three criminal cases that were consolidated for
trial, a jury found defendant guilty of various offenses,
including resisting arrest, ORS 162.315(1), fleeing or
attempting to elude a police officer, ORS 811.540(1), criminal driving while suspended, ORS 811.182(1), and failure to
appear on a criminal citation, ORS 133.076(1). On appeal,
defendant raises two assignments of error. First, she argues
that the trial court plainly erred when it failed to provide
a jury instruction on a culpable mental state with respect
to an element of the crime of resisting arrest. Second, she
argues that the trial court erred in denying her motion for
a mistrial because the prosecutor referred to a redacted
video during the state’s closing argument. For the reasons
explained below, we reverse defendant’s conviction for resisting arrest and otherwise affirm.
          Jury Instructions. In her first assignment of error,
defendant challenges her conviction for resisting arrest.
Defendant argues that the trial court plainly erred when
it failed to instruct the jury that it had to find that she had
at least a criminally negligent mental state with respect
to the “substantial risk of physical injury” element in ORS
162.315(2)(c). Defendant argues that the error was not harmless, and that we should exercise our discretion to correct it.
The state concedes that the trial court plainly erred. The
state also concedes that the error was not harmless, because
the trial court did not instruct the jury on the definition of
the term “resists,” as defined in ORS 162.315(2)(c).
          We accept the state’s concession as well taken. A
person commits the crime of resisting arrest when the person “intentionally resists a person known by the person to
be a peace officer or parole and probation officer in making an arrest.” ORS 162.315(1). “ ‘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 ….” ORS 162.315(2)(c). In State v. Tow, 

, 

 (2022), we held 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
Nonprecedential Memo Op: 

 (2024)            359

respect to ‘the substantial risk of physical injury’ element in
ORS 162.315(2)(c).”
         Here, the trial court not only failed to instruct the
jury on a culpable mental state, but it also failed to instruct
the jury on the meaning of “resists.” Without that definition, or an instruction that the jury had to find that defendant acted with a culpable mental state with respect to the
substantial risk of physical injury element, the jury likely
misunderstood the elements that the state was required to
prove. See State v. Moravek, 

, 

, rev den, 

 (2019) (“Instructional error exists
where the instructions give the jury an incomplete and thus
inaccurate legal rule to apply to the facts. Accordingly, a
trial court must instruct the jury on all material elements
of the charged crime, and failure to do so is plain error.”
(Internal quotation marks and citations omitted.)).
          We further conclude that the error is not harmless.
See State v. McKinney/Shiffer, 

, 

(2022) (stating that an instructional error is prejudical “if
the absence of the jury instruction probably created an erroneous impression of the law in the minds of the jury and if
that erroneous impression may have affected the outcome
of the case” (internal quotation marks and citation omitted)). In this case, defendant’s conduct consisted of shouting
or yelling at a state trooper, threatening to kick him, and,
when the trooper tried to grab her, yanking her hand away
and holding it behind her back in a closed fist. The trooper
unholstered his Taser and told defendant that he would
use it if she did not comply. After that warning, defendant
allowed the trooper to handcuff her. If the jury had been
properly instructed, it might not have been persuaded that
defendant’s conduct created a substantial risk of physical
injury, or that defendant’s failure to be aware of the risk
constituted a gross deviation from the standard of care that
a reasonable person would observe. Therefore, the error was
not harmless.
          Even when a trial court commits plain error, we
must decide whether to exercise our discretion to correct
it. Ailes v. Portland Meadows, Inc., 

, 

 (1991). Factors that a court may consider include
360                                                         State v. Partin

“the competing interests of the parties; the nature of the
case; the gravity of the error; [and] the ends of justice in the
particular case[.]” 

 at 382 n 6. Here, the state concedes
that the error is not harmless, which means we have discretion to correct it, and, because the degree of harm is not
low, the gravity of the error weighs in favor of exercising our
discretion. In addition, “there are no ‘competing interests
of the parties’ when one of the parties concedes an error.”
State v. Jones, 

, 

 (1994).
Furthermore, “the ends of justice will not be satisfied by a
refusal to correct what everyone involved acknowledges to
be error.” 

. Therefore, we exercise our discretion to correct the trial court’s plain error and reverse defendant’s conviction for resisting arrest.
         Motion for a Mistrial. In her second assignment of
error, defendant argues that the trial court erred in denying her motion for a mistrial. We review the denial of that
motion for abuse of discretion. State v. Soprych, 

, 

 (2022). Under the abuse of discretion
standard, we consider whether the trial court’s decision was
within a range of legally correct choices and whether it produced a permissible and legally correct outcome. State v.
Worth, 

, 

 (2009). If improper
comments deny a defendant a fair trial, the court abuses its
discretion in denying the defendant’s motion for a mistrial.

.
         Here, during defendant’s consolidated criminal
trial, the jury watched body camera footage of one of defendant’s arrests. The court stated that it would instruct the
jury on modified evidence because the video was “very
chopped up.”1 During closing arguments, the prosecutor
pointed out to the jury that the video “looks like it’s jumping around.” The prosecutor explained that the jury would

   1
       Uniform Criminal Jury Instruction 1006B provides:
   “During the trial, the court may [receive / have received] evidence in a modified form. This evidence may have been edited because it contained irrelevant
   or otherwise inadmissible material. If you notice or suspect that evidence has
   been modified, you are not to speculate about the substance of what may have
   been removed or modified or why it was modified. You should not consider
   evidence to be of greater or lesser evidentiary value based solely on the fact
   that it has been modified.”
Nonprecedential Memo Op: 

 (2024)                 361

receive an instruction on modified evidence, and he read the
instruction to the jury. The prosecutor then stated:
   “The fact of the matter is sometimes not all evidence is
   admissible and the court will not allow that in so we will
   cut things out that are not admissible. You’re not to consider
   what those are, however, I do need to address it because of
   course you’re going to see this video bouncing around ….”
  Defendant requested a sidebar. When the prosecutor
resumed his closing argument, he made no further reference to modified evidence and discussed the charges against
defendant.
        Immediately after closing arguments, defendant
moved for a mistrial, arguing that it was improper for the
prosecutor to suggest that there was additional evidence
that was inadmissible. Defense counsel argued that the
jury may have understood the prosecutor to mean that “if
the jury could see the whole video there may be additional
incriminating evidence that’s on the video.” The prosecutor
responded that his comment was about the modified evidence jury instruction, but he acknowledged that a curative
instruction may be appropriate.
        The trial court offered to give a curative instruction, but defense counsel declined. The trial court determined that the prosecutor was attempting to link the
“chopped up” video to the jury instruction on modified evidence, and it noted that the prosecutor’s references to inadmissible evidence was very brief, that the prosecutor moved
on to another topic after the sidebar, and, so as not to draw
further attention to the comment, the trial court agreed
with defense counsel that it would not provide a curative
instruction. The trial court ruled that the statement was
not improper, and that defendant was not prejudiced by it.
          We conclude that the trial court did not abuse its
discretion in denying the motion for a mistrial. It is true
that “a prosecutor may not make a statement to the jury
that implies that additional evidence exists but cannot be
presented because of ‘our laws and rules of the court,’ or the
‘rules of evidence.’ ” State v. Banks, 

, 

 (2021) (citing State v. Newburn, 

,
362                                             State v. Partin

 (1946) and State v. Wederski, 

,

 (1962)). “Such a statement injects extrinsic and
prejudicial matter into the trial and constitutes an open
invitation for the jury to speculate.” Banks, 

(internal quotation marks and citations omitted).
         But here, the prosecutor’s brief reference to “cut[ting]
things out that are not admissible” was not improper because
the prosecutor was explaining how the modified evidence
instruction applied to the edited body camera footage that
the jury had viewed. That instruction provides that the jury
should not speculate about “what may have been removed or
modified or why it was modified,” and the jury “should not
consider evidence to be of greater or lesser evidentiary value
based solely on the fact that it has been modified.” UCrJI
1006B.
          Unlike in Banks, 

, the prosecutor’s
statement did not suggest that he “was aware of ‘things’
and ‘facts’ that, because of the rules of evidence, would not
be presented at trial.” And unlike in Newburn, 

, the prosecutor’s statement did not suggest that there
were “facts in the District Attorney’s office” that could not
be presented at trial. Instead, the prosecutor referred to
evidence that had been admitted—the edited body camera
footage—and the prosecutor explained that the jury should
not speculate about what had been removed or consider less
of the evidence because it had been modified. The prosecutor’s reference to “cut[ting] things out that are not admissible” did not rise to the level of suggesting “that the state had
more evidence against defendant than would be presented
at trial, thereby encouraging speculation[.]” Banks, 

.
        In addition, the statement did not prejudice defendant. Unlike in Banks, where the prosecutor told the jury
three times that there were “things” and “facts” that would
not be presented at trial, 

, here, the prosecutor
made one brief reference to “cut[ting] things out that are not
admissible.” In both Banks, 

, and Newburn,

, when defense counsel objected, the trial court
overruled the objections, thereby accentuating the error.
By contrast, here, defense counsel requested a sidebar and,
Nonprecedential Memo Op: 

 (2024)           363

when the prosecutor resumed his closing argument, he
immediately moved on to another topic. Although the trial
court offered to provide a curative instruction, defense counsel reasonably concluded that it would draw more attention
to the issue. And, unlike in Banks, 

, the jury
did not submit any questions suggesting concerns about evidence that was not presented to the jury. We conclude that
the prosecutor’s statement did not prejudice defendant or
deprive him of a fair trial. The trial court did not abuse its
discretion in denying the motion for a mistrial. See State v.
Smith, 

, 

 (1990) (“The question …
is not whether this court would have granted a new trial to
defendant, but whether the trial court abused its discretion
in refusing to do so.”).
        For the first time on appeal, defendant argues that
the trial court violated her federal constitutional right to
due process when it failed to declare a mistrial. That argument was not preserved in the trial court, and defendant
does not seek plain error review, so we do not address it.
In addition, having considered the arguments in the pro se
supplemental brief, we reject them without discussion.
        In Case No. 19CR32073, conviction on Count 2
reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 19CR29418, affirmed. In Case
No. 19CR06717, affirmed.