State v. Mann

150                 December 26, 2024               No. 949

   This is a nonprecedential memorandum opinion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.
                DAVID LAUREN MANN,
                  Defendant-Appellant.
                Lane County Circuit Court
                  22CR22304; A180844

  Erin A. Fennerty, Judge.
  Argued and submitted October 30, 2024.
   Peter G. Klym, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   E. Nani Apo, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)                                151

             KAMINS, J.

         Defendant was convicted, after a jury trial, of
harassment, ORS 166.065,1 and disorderly conduct. ORS
166.025. The charges arose after an incident in which
defendant accidentally grazed the cheek of his 15-year-old
daughter, L, with his fist as he forcibly restrained her after
she stepped between defendant and L’s adult brother, whom
defendant intended to punch. Defendant challenges his conviction for harassment, raising three unpreserved assignments of errors. For the reasons explained here, we conclude
that the trial court did not commit plain error and therefore
affirm.

         The offense of harassment requires that the person act with the specific intent to harass another person. ORS 166.065(1)(a).2 The offense can be committed by
“[s]ubjecting such other person to offensive physical contact.” 

 Defendant correctly notes that, under the statute
and our case law, to establish the offense, the state must
prove that the defendant had the specific intent to harass
or annoy another person. See State v. Murphy, 

, 

 (2020), rev den, 

 (2021)
(so stating). Focusing on the grazing of L’s cheek, defendant
asserts in his first assignment that the trial court erred in
convicting him of the offense. He reasons that the evidence
is insufficient to establish that he acted with the intention
of subjecting L to offensive physical contact, because he had
no intention to harm L; rather he had intended to make
contact with L’s adult brother. We have reviewed the record
in the light most favorable to the state and conclude that
the evidence is sufficient to permit the jury to infer that,
in forcibly restraining L, defendant acted with a statutorily

    1
        ORS 166.065 provides, in part:
          “(1) A person commits the crime of harassment if the person intentionally:
          “(a) Harasses or annoys another person by:
         “(A) Subjecting such other person to offensive physical contact[.]”
    2
       To prove the crime of harassment, the state was required to prove that:
(1) defendant intended to subject L to harassment, annoyance, or alarm; (2) that
defendant conveyed the threat; (3) that L was actually alarmed by the threat; and
(4) that L’s alarm was objectively reasonable. See State v. Murphy, 

, 

 (2020), rev den, 

 (2021).
152                                             State v. Mann

sufficient intention to harass her. The trial court therefore
did not plainly err in failing to acquit defendant based on
a failure of the state produced sufficient evidence to prove
that defendant intended to harass or annoy L.
          We move on to defendant’s second assignment of
error. In rebuttal closing argument, in addressing defendant’s
claim of self-defense, the prosecutor made this comment:
   “I believe in the evidence testimony from everyone who has
   appeared here today, even [defendant], there was not any
   kind of use of physical force or imminent use of physical
   force that was going to be made against [defendant][.]”
In his second assignment of error, defendant contends that
that statement constituted vouching for witnesses and that
the trial court plainly erred in failing to sua sponte declare
a mistrial.
         For error to be plain, it must be “obvious and not
reasonably in dispute, and apparent on the record without
requiring the court to choose among competing inferences.”
State v. Vanornum, 

, 

 (2013). It is
not obvious and is reasonably in dispute whether the prosecutor’s statement—“I believe in the evidence … there was
not any kind of use of physical force”—was a comment on
credibility. In the context in which it was made, the statement reasonably appears to have been simply a summation
of the testimony. We conclude that there was no plain error.
          We turn to defendant’s third assignment of error,
which is also not preserved. As noted, a person commits
the crime of harassment if the person “intentionally …
[h]arasses or annoys another person by … [s]ubjecting such
other person to offensive physical contact.” ORS 166.065
(1)(a)(A). In his third assignment of error, defendant contends that, in closing argument, the prosecutor misled the
jury as to the mens rea element of the harassment charge
by suggesting that the state was required to prove only
that defendant acted volitionally, not that he acted with the
specific intent to harass L. Defendant cites the prosecutor’s
description to the jury of the “intentional” mental state element of the offense:
Nonprecedential Memo Op: 

 (2024)                  153

       “A person acts intentionally when they act with a conscious objective cause a particular result. Again, I just want
   to stress for this that the State is not arguing and the State
   is not required to prove that [defendant] intended to hit [L]
   that he intended to injure [L], that he intended to—in—in
   essence, understanding his intention of what he meant to do
   is not what—is not what the State has to prove.
       “What the State has to prove is that there was offensive
   physical contact that a reasonable person may find offensive
   in the situation as [L] was in the situation.
       “And I believe that you can see from the testimony that
   was provided and the evidence that has come out of this
   trial, and that that conduct was intentional, that he did
   intend to make it. And while it wasn’t what he intended to
   be, it didn’t seem like he had a good amount of control over
   what he was doing at that time. He made contact repeatedly,
   that was unwanted and offensive to [L].”
(Emphases added.) Defendant did not object to the prosecutor’s argument or raise a concern at that time that the prosecutor had misstated the elements of the offense. But defense
counsel did explicitly explain to the jury that it was the
state’s burden to show that defendant intended to harass the
victim. And in rebuttal, the prosecutor agreed with defense
counsel’s description of the mens rea element but then placed
emphasis on the “offensive physical contact” element:
   “[T]he Defense mentioned specifically about the intention
   portion of the harassment statute that he had—that he had
   to intend to harass or annoy [L]. And as the instructions
   tell you, that is correct.
       “However, what it will also tell you is that what the State
   has to prove is that the Defendant harassed or annoyed [L]
   by subjecting [L] to offensive physical contact. He did not
   have to intend to harass or annoy her in the typical way
   that one would hear harass or annoying. He did not have
   to go up with the intention of making a rough contact. He
   didn’t have to go off with the intention of making—”
Defendant objected at that point, arguing not specifically
that counsel had misstated the mens rea element but that,
generally, the prosecutor had mischaracterized the law:
154                                                State v. Mann

   “Your Honor, we object to that on the grounds of mischaracterization of the law.”
The court understood defense counsel’s objection to relate
to the element of intent and responded with an instruction:
       “[T]he jurors … are to follow the directions that have
   been given by the Court, that intentionally or with intent
   means that a person acts as a conscious objective to cause
   a particular result or to engage in particular conduct. And
   that the phrase intentionally, harass, or annoy, that intentionally and intended means that a person acts with a conscious objective to harass and annoy.
       “And that what used in the phrase intended the contact
   with [L] to occur, intended means that the person acts with
   a conscious objective for the contact with [L] to occur. That
   is the statement of the law.”
The prosecutor then endorsed the court’s instruction and
responded:
   “And I would agree with that fully. Thank you, Your Honor.
   What I’m asking you to consider in that is the conscious
   objective to make contact. It does not have to be a specific
   kind of contact, it does not have to be what he perceived to
   be necessary, willing, wanted contact on his part. It has
   to be consciously—he had the conscious objective to make
   contact at that time. And it was offensive physical contact
   as a reasonable person would consider in this situation.”
         On appeal, defendant contends that the whole thread
of the prosecutor’s comments implied to the jury that it need
only find that defendant acted volitionally, not that defendant
acted with the specific intent to harass or annoy L.
        We have reviewed the entirety of the prosecutor’s
closing argument. We agree with defendant that several
of the prosecutor’s statements—for example, that “understanding [defendant’s] intention of what he meant to do is
not what—is not what the State has to prove”—could convey that the state need not prove that defendant intended to
harass L at the time he acted. That is incorrect, as the state
did have that burden. But that is not all that the prosecutor
said. The prosecutor herself twice emphasized that the jury
needed to find that defendant intended to harass or annoy
Nonprecedential Memo Op: 

 (2024)                155

L. At the beginning of her closing argument, the prosecutor
described the elements of the offense:
   “The State … is trying to prove and believe it has proved
   through the testimony that you have heard that the
   Defendant harassed or annoyed [L] by subjecting [L] to
   offensive physical contact. That the Defendant intended
   [the] contact with [L] to occur, and that the Defendant
   intended to harass or annoy [L].”
And in rebuttal, the prosecutor noted:
   “[T]he Defense mentioned specifically about the intention
   portion of the harassment statute that he had—that he had
   to intend to harass or annoy [L]. And as the instructions
   tell you, that is correct.”
The challenged comments, viewed in context, appear to
have been the prosecutor’s effort not to diminish the state’s
burden to establish an intention to harass, but to focus the
jury’s attention on the “offensive physical contact” element of
the offense—to point out that the contact need not have been
what is commonly viewed as “harassment,” but need only
have been subjectively and objectively offensive. Murphy,

. Additionally, after defendant’s objection,
the court clearly instructed the jury, as it previously had,
that the state had the burden to prove that defendant had
an intention to harass or annoy L. And in her responsive
argument, defense counsel also clearly stated that it was the
state’s burden to prove that defendant intended to harass
L. In short, the jury heard several times the correct statement of the law on the element of intent—that it was the
state’s burden to prove not only that defendant acted volitionally, but that he acted with an intention to harass L.
When viewed in the context of the entire closing argument
and especially given the trial court’s clarification of the burden of proof during rebuttal, we conclude that, had defendant made a motion for mistrial, it would not have been an
abuse of discretion to deny it. Thus, there was no plain error.
State v. Pierpoint, 

, 

 (2023).
However, even assuming that the asserted unpreserved
error occurred and that it was not harmless, we conclude
that the interests of justice do not require us to overlook
the strong policies requiring preservation and exercise our
156                                          State v. Mann

discretion to correct the asserted unpreserved error. See
State v. Wiltse, 

, 

 (2024); Ailes
v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991) (listing considerations in determining whether to
exercise discretion).
        Affirmed.