State v. Breslin

612                   August 13, 2025                No. 732

   This is a nonprecedential memorandum opinion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.
               JAMES AUSTIN BRESLIN,
                  Defendant-Appellant.
               Douglas County Circuit Court
                  23CR18633; A182059

   Steve H. Hoddle, Judge.
   Argued and submitted April 21, 2025.
   Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   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 Ortega, Presiding Judge, Hellman, Judge, and
O’Connor, Judge.
   HELLMAN, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2025)                                613

          HELLMAN, J.
          Defendant appeals a judgment of conviction for
numerous offenses, including second-degree disorderly conduct, ORS 166.025, third-degree theft, ORS 164.043, and
resisting arrest, ORS 162.315. He raises three assignments
of error. We affirm.
          Disorderly conduct. In his first assignment of error,
defendant argues that the trial court erred when it denied
his motion for judgment of acquittal (MJOA) on the second-degree disorderly conduct charge, ORS 166.025, because the
evidence was legally “insufficient to show that defendant
obstructed traffic.”1
       “When a defendant’s challenge to the legal sufficiency of
    the state’s evidence depends upon the meaning of the statute defining the offense, we review for legal error. Then,
    based on the proper construction of the statute, we view the
    evidence in the light most favorable to the state to determine whether a rational factfinder could have found the
    elements of the offense beyond a reasonable doubt.”
State v. Silver, 

, 

 (2024)
(internal quotation marks omitted).
         Here, the state alleged that defendant “did unlawfully and recklessly create a risk of public inconvenience,
annoyance or alarm by obstructing vehicular or pedestrian
traffic on a public way.” At trial, the trial court admitted
several exhibits into evidence, including an arresting officer’s body camera video. After the state rested, defendant
moved for a judgment of acquittal, arguing that the “video
clearly shows [defendant] didn’t obstruct traffic.” The trial
court denied the motion, reasoning that, “in this lens …
where [defendant] was at in the road with vehicles that
close and slowing down, … depending on how they view
the facts, could be enough for a reasonable juror to find that
he did obstruct vehicular traffic on a public way.”
        To support a conviction for second-degree disorderly
conduct under its theory of the case, the state was required
    1
      Under ORS 166.025(1)(d), a person commits second-degree disorderly conduct when, “with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, the person … [o]bstructs vehicular or pedestrian traffic on a public way[.]”
614                                           State v. Breslin

to prove that defendant’s “conduct (obstruction) … at minimum, create[d] a risk of causing public inconvenience,
annoyance, or alarm.” 

. “[T]he term ‘obstructs’
includes a requirement that a defendant physically impede
traffic rather than distract those in traffic from the side of
the road.” 

 (emphasis added) (concluding that
the trial court erred in denying the defendant’s MJOA when,
“[a]t most, there was evidence that defendant might have
passed the fog line on occasion to retrieve items that flew off
his car”). However, we have explained that, even if “there
was only one vehicle on the road at that time, the state need
not prove actual public inconvenience, annoyance, or alarm
to any specific number of people.” State v. Moore, 

, 

, rev den, 

 (2023).
         We have reviewed the record and conclude that the
trial court did not err. Like State v. Davis, 

, 

, rev den, 

 (2020), “this is a close
case.” However, “we ultimately conclude that, viewed in the
light most favorable to the state, sufficient evidence existed
to permit the questions to go to the jury.” 

 As noted above,
the trial court admitted into evidence an arresting officer’s
body camera video. That video showed the officer following
defendant and recorded the officer stating, “he’s running
into traffic.” However, the officer’s hand covered the camera
while he made that statement. At trial, the officer explained
that he made that statement on the radio and that he cannot use his radio without his hand covering the camera
because, “unfortunately, that’s one of the few places [the
camera] actually fits” on his uniform. The officer further
testified that, while his hand covered the camera, defendant
“swerved into that, the lane. I guess from our view the lane
closest to the curb. He ran into that and that car that you
just saw leave. That’s the car that had to swerve.”
         Seeking a different result, defendant argues that,
“after [the officer] viewed a recording from his body camera,
he acknowledged that the recording did not show defendant
entering traffic or causing any vehicles to swerve to avoid
hitting defendant.” (Emphasis added.) The state responds
that “that testimony did not contradict his earlier testimony
that he independently recalled seeing a car swerve.” Having
Nonprecedential Memo Op: 

 (2025)            615

reviewed the record, we agree with the state’s argument.
Although the officer testified that he was “not sure” and that
he “guess[ed] that [he] was wrong” in response to defense
counsel’s questions about the cars shown in his dash camera video, the officer’s contemporaneous recorded statement
that defendant “[was] running into traffic” and his testimony on direct examination about car movement that was
not recorded by his body camera create a question of fact
with respect to whether defendant “physically impede[d]
traffic” after he left the sidewalk. Silver, 

.
“Under the standard of review applied to a motion for judgment of acquittal, the state must receive the benefit of that
factual uncertainty.” Davis, 

 (concluding that the trial court did not err in denying the defendant’s
MJOA); see also Moore, 

 (concluding that
the trial court did not err when it denied the defendant’s
MJOA for second-degree disorderly conduct when “[r]easonable members of the public observing defendant at that time
in that state could be alarmed about whether it was safe for
themselves and defendant to attempt to drive around him”).
         Third-degree theft. In his second assignment of
error, defendant argues that the trial court erred when it
declined to give his requested jury instruction concerning
third-degree theft.
         Here, the state alleged, in relevant part, that defendant “commit[ed] theft of a step stool” from a store, and that
the stepstool had a total value of less than $100. Although
defendant asked the trial court to instruct the jury that it
was required to find that defendant “intended that the stool
have value,” the trial court declined to do so. Instead, the
trial court instructed the jury that it had to find that defendant “was criminally negligent” with respect to the stool’s
value.
         We need not decide whether the trial court erred
when it declined defendant’s requested jury instruction
because we conclude that any error was harmless. “Oregon’s
constitutional test for affirmance despite error consists of a
single inquiry: Is there little likelihood that the particular
error affected the verdict?” State v. Davis, 

, 

 (2003). Because “the failure to submit a required
616                                                         State v. Breslin

element of an offense to the jury is a federal constitutional
error,” “to affirm, we must be able to conclude that the error
is harmless beyond a reasonable doubt.” State v. Perkins, 

, 

 (2023).
          As relevant here, a person commits third-degree
theft when, among other requirements, the “total value of
the property … is less than $100.” ORS 164.043(1)(b); see
also State v. Waterhouse, 

, 

 (2016)
(explaining that the “value range” of third-degree theft “falls
essentially between some value greater than zero but less
than $100”). Further, a person acts “with intent” when “the
person acts with a conscious objective to cause the result or
to engage in the conduct so described.” ORS 161.085(7).
          At trial, a store employee testified that defendant
took the stepstool, that the stepstool was for sale, and that its
value was $14.99. In addition, the trial court entered into evidence a picture of the stepstool, which showed a large product sticker affixed to its side. In light of that evidence, we
conclude that there is little likelihood that the verdict would
have been different had the trial court instructed the jury
that it was required to find that defendant “intended that the
stool have value” when he stole it. “[F]or the same reasons,”
we conclude that “the error is harmless beyond a reasonable
doubt.” State v. Acree, 

, 

 (2025).
“And because the error is harmless, we must affirm.” 

          Resisting arrest. In his third assignment of error,
defendant argues that the trial court plainly erred “by failing to instruct the jury that, to find defendant guilty of
resisting arrest,” ORS 162.315, “it was required to “find that
defendant had at least a criminally negligent mental state
with respect to the ‘substantial risk of physical injury’ element of the offense.”2 The state concedes that the trial court
plainly erred but argues that we “should affirm despite that
error because the error was harmless.”
         Although we accept the state’s concession that the
trial court plainly erred, we conclude that we have no discretion to correct the error because it is harmless. See State v.
     2
       “A person commits the crime of resisting arrest if 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).
Nonprecedential Memo Op: 

 (2025)                              617

Sell, 

, 

 (2023), rev den, 

 (2024) (concluding that the trial court plainly erred when
“the jury was not instructed that defendant had to be at least
criminally negligent with respect to the injury element of the
crime”); see also State v. Dye, 

, 

(2023), rev den, 

 (2024) (“If an error is harmless,
then we have no discretion to correct the error, and we must
affirm[.]”).
          As noted above, an error is harmless when there is
“little likelihood that the particular error affected the verdict.” Davis, 

. “To determine if an error was
harmless, we consider the instructions as a whole and in
the context of the evidence and record at trial, including
the parties’ theories of the case with respect to the various
charges and defenses at issue.” Dye, 

 (internal quotation marks omitted).
          Our decision in Dye is instructive here. In that case,
the trial court failed to “instruct[ ] the jury as to a culpable
mental state for the injury element” of resisting arrest, ORS
162.315. 

. Although we concluded that the trial court
plainly erred, we determined that we had “no discretion to
correct the error” because it was harmless. 

. That
was so because the trial court had instructed the jury that,
“to convict defendant[,] … it had to find that defendant
‘intentionally’ resisted the officers.” 

. “Assuming that
the correct mental state for the ‘substantial risk of injury’
element of resisting arrest is, at a minimum, criminal negligence,” we concluded that, by finding defendant guilty, the
jury “necessarily would have also found that defendant was
at least criminally negligent with respect to whether there
was a substantial risk of physical injury” when he “pulled
his arm forward while [a police officer] held onto it—in the
middle of a creek with slippery rocks near a waterfall—two
separate times.”3 

.
   3
     ORS 161.085(10) provides:
       “ ‘Criminal negligence’ or ‘criminally negligent,’ when used with respect
   to a result or to a circumstance described by a statute defining an offense,
   means that a person fails to be aware of a substantial and unjustifiable risk
   that the result will occur or that the circumstance exists. The risk must be 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.”
618                                              State v. Breslin

         Here, the jury heard testimony that, while police
tried to arrest him, defendant “thrash[ed] around” with his
head near a curb, “kick[ed] his feet” “at least three feet in the
air,” and kicked a corporal’s face. The trial court instructed
the jury that, in order to convict defendant, it was required
to find that he “intentionally resisted [the officer] in making the arrest.” It further instructed the jury that “resist”
means:
      “Use or threatened use of violence, physical force, or
   any other means that creates a substantial risk of physical injury to any person. It includes, but is not limited to,
   behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. This
   behavior does not have to result in actual physical injury to
   an officer.”
Because the jury found defendant guilty, we conclude that
“it necessarily would have also found that defendant was
at least criminally negligent with respect to whether” his
conduct created “a substantial risk of physical injury” to
himself or another person. 

. Therefore, the error is
harmless, and we have no discretion to correct it. State v.
Horton, 

, 

 (2023) (“We cannot reverse a judgment based on a harmless error, so if the
error was truly ‘harmless,’ then we have no discretion and
must affirm.”).
         Affirmed.