State v. Potter

368                  October 2, 2024               No. 707

   This is a nonprecedential memorandum opinion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.
               MARC RODNEY POTTER,
                 Defendant-Appellant.
               Coos County Circuit Court
                 22CR31724; A180409

  Andrew E. Combs, Judge.
  Submitted July 16, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)                                 369

           HELLMAN, J.
        Defendant appeals a judgment of conviction for,
among other things, assaulting a public safety officer, ORS
163.208.1 In a single assignment of error, defendant challenges the trial court’s denial of his motion for judgment of
acquittal (MJOA) on that count. We affirm.
         “Before we reach the merits of whether the trial
court erred in denying defendant’s MJOA … we must first
determine whether defendant’s challenge[ ] [was] preserved
below.” State v. Reyes-Castro, 

, 

, rev den, 

 (2022); ORAP 5.45 (1) (“No matter claimed as error will be considered on appeal unless
the claim of error was preserved in the lower court ….”).
“[P]reservation requires a party to explain its objection
clearly enough for the opposing party, and the trial court,
to understand the issue and either avoid an error, or correct
an error if one has occurred.” State v. Skotland, 

, 

 (2024). As relevant here, “for preservation
purposes, [an] MJOA must identify, with specificity, alleged
deficiencies in [the] state’s proof.” State v. Jackson, 

, 55 n 4, 

, rev den, 

 (2007).
         At trial, the sergeant who arrested defendant testified that when he tried to handcuff defendant, defendant
“started kicking and punching and frolicking and [doing]
everything he could do to not be put in handcuffs.” The
sergeant further testified that defendant “struck [him]
with a closed fist in the right side of [his] head” and that
he was later diagnosed with a “mild concussion.” In addition, a deputy testified that he saw defendant “swinging his
arms around and kicking his legs” while the sergeant tried
to handcuff him. After the state rested its case, defendant
moved for acquittal.
        “[DEFENSE COUNSEL]: Your Honor, at this time
    the defense would move for a judgment of acquittal, specifically on [assaulting a public safety officer]. The issue
    [the] defense will raise is … regarding the issue of the

    1
      “A person commits the crime of assaulting a public safety officer if the person intentionally or knowingly causes physical injury to the other person, knowing the other person to be a peace officer … and while the other person is acting
in the course of official duty.” ORS 163.208(1).
370                                              State v. Potter

   knowingly caused physical injury based on the definition
   that’s been provided. Specifically, that [defendant] knew
   his conduct was assaultive and failed to be—the criminal
   negligence aspect of that element.
      “The state’s testimony is kind of—you have different
   testimony. You have [the deputy] who says he sees from his
   vantage point that—that [defendant] is kicking and swinging towards [the sergeant], but from his vantage point
   there’s nothing that says there’s a contact.
       “During the scuffle, [the sergeant] testifies that he
   is struck in the head. We don’t have any other dynamics
   about how this occurred, with what was leading up to it. So,
   the defense would submit that that aspect of the knowingly
   caused physical injury; that the state hasn’t met that component of the statute.”
That was defendant’s entire argument. The state responded
that the record contained evidence that defendant “knew his
conduct was assaultive” because he “was swinging and kicking towards [the sergeant],” and that defendant had struck
the sergeant “in the side of the head with a closed fist.” The
state further argued that a “strike to the head is at the very
least a failure to be aware of substantial and unjustifiable
risk that his conduct would cause physical injury if it was
not an intentional act.” The trial court denied the motion.
         The trial court later instructed the jury that the state
was required to prove, among other elements, that defendant “knowingly caused physical injury to [the sergeant].”
The trial court defined “knowingly caused physical injury” to
mean that “[defendant] knew his conduct was assaultive and
failed to be aware of a substantial and unjustifiable risk that
his conduct would cause physical injury to [the sergeant].”
Further, the court defined “assaultive conduct” as “[a]ggressive behavior that is consistent with causing an injury.” The
jury found defendant guilty, and this appeal followed.
        On appeal, we understand defendant to argue that
the state failed to prove that his conduct was “aggressive,”
and, therefore, that the state did not establish that he
“knowingly caused physical injury.” Specifically, defendant
argues that because the common meaning of “aggression” is
“a culpable unprovoked overt hostile attack,” the state failed
Nonprecedential Memo Op: 

 (2024)             371

to satisfy its burden because “no reasonable juror could find
that defendant knew his conduct was a culpable unprovoked
hostile attack.” The state responds that defendant did not
preserve that argument because “[c]hallenging whether
conduct was knowing is not the same as arguing that the
conduct was permissible because it was provoked.” We agree
with the state’s argument.
          We conclude that defendant’s argument is not preserved because it “has a fundamentally different focus from
his argument at trial.” State v. Serrano, 

, 

 (2014), cert den, 

 (2015). The focus of
defendant’s argument to the trial court is not entirely clear.
However, based on that argument, and the state’s response,
we understand defendant to have argued that the evidence
did not permit an inference that defendant acted with a culpable mental state when he struck the sergeant. In contrast,
defendant now focuses on whether his conduct was “aggressive” under the common meaning of the term and specifically
argues that “no reasonable juror could find that defendant
knew his conduct was a culpable unprovoked hostile attack”
because the sergeant’s “attempt to arrest defendant plainly
provoked defendant’s subsequent conduct.” Defendant never
advanced that argument to the trial court. Although his trial
and appellate arguments concern the same element of the
crime, they are “qualitatively different.” State v. Gray, 

, 

, rev den, 

 (2017)
(“[T]he presence of a common thread between an objection at
trial and an argument on appeal does not satisfy the preservation requirement if the two arguments are qualitatively different.” (Internal quotation marks omitted.)); see also State v.
Gaines, 

, 

 (2015) (concluding
that even though defendant presented the same “overarching
legal principle,” “the ‘common thread’ between the position he
advanced at trial and the issue he presents on appeal is too
remote to give the trial court and the state enough information to have understood defendant’s current argument”).
        Finally, “we do not engage in ‘plain error’ review
because defendant does not request it.” State v. Ardizzone,

, 

, rev den, 

 (2015).
        Affirmed.