State v. Hayes

No. 819             September 17, 2025                   481

   This is a nonprecedential memorandum opinion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.
                ANDRE LAMON HAYES,
                  Defendant-Appellant.
                Beaverton Municipal Court
                    2211474; A181823

   Zohra Bakhtary Tourville, Judge.
   Argued and submitted April 2, 2025.
   Peter G. Klym, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
   JOYCE, J.
   Affirmed.
482                                            State v. Hayes

        JOYCE, J.
          Defendant appeals from a judgment of conviction
for resisting arrest, ORS 162.315. In a single assignment
of error, defendant argues that the trial court plainly erred
by failing to instruct the jury on the definition of “physical
injury.” We conclude that even if the failure to give that jury
instruction was plain error, we would not exercise our discretion to correct it in these circumstances. Accordingly, we
affirm.
          The relevant facts are few. The state charged defendant with resisting arrest after three officers told defendant
he was under arrest and defendant stepped in between the
officers, grabbed hold of a tree, and continued to “pull away”
from the officers as they tried to put his hands behind his
back. The officers performed a “controlled takedown” to
effectuate the arrest, resulting in defendant and the officers
landing on the ground, at which point the officers were able
to handcuff defendant.
          Under ORS 162.315(1), the state was required
to prove that defendant “intentionally resist[ed] a person
known by the person to be a peace officer … in making
an arrest.” ORS 162.315(2)(c) provides that “ ‘[r]esists’ 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 ….” The conduct “does not have to result in
actual physical injury to an officer.” ORS 162.315(2)(c). The
trial court instructed the jury on those elements, as well as
on the applicable mental states, but did not instruct the jury
on the definition of “physical injury.” See ORS 161.015(7)
(“ ‘Physical injury’ means impairment of physical condition or substantial pain.”); UCrJI 1044 (“An injury impairs
a person’s physical condition if it results in a reduction in
a person’s ability to use the body or a bodily organ or if it
results in a reduction in a bodily organ’s ability to perform
its ordinary function. … Pain is substantial if it is ample
or considerable, and the duration of the pain was not fleeting or inconsequential.”). Defendant did not object to those
instructions or request an instruction on the definition of
“physical injury.”
Nonprecedential Memo Op: 

 (2025)              483

          On appeal, defendant argues that the trial court
should have, sua sponte, instructed the jury on the definition of “physical injury” because that phrase is “an essential
element of the crime and has a specific legal meaning different than its ordinary meaning.” See State v. Bistrika, 

, 

, rev den, 

 (2014), cert
den, 

 (2015) (“Instructional error exists where
the instructions give the jury an incomplete and thus inaccurate legal rule to apply to the facts ….” (Internal quotation marks and citation omitted.)). Defendant acknowledges
that his argument is not preserved and that we are limited
to plain-error review. State v. Vanornum, 

,

 (2013) (setting forth requirements for plain-error review); State v. Dumdei, 

, 

, rev den, 

 (2025) (“Generally, issues that
are not preserved in the trial court will not be considered on
appeal.” (Internal quotation marks omitted.)).
         It is a matter of discretion whether we will correct
a plain error. Dumdei, 

. Whether to exercise our discretion to correct a plain error is a decision to be
made “with utmost caution and should be reserved for rare
and exceptional cases.” State v. Nordholm, 

, 

 (2018) (internal quotation marks and citation omitted). That is because “a decision to review a plain
error … undercuts the policies served by the preservation
doctrine.” Vanornum, 

.
         In light of those principles and taking into consideration (1) the gravity of the error, (2) fairness to the parties,
and (3) the ease with which the error could have been corrected and a retrial avoided had the error been brought to
the trial court’s attention, we would not exercise our discretion to correct a plain error here.
         First, as to the gravity of the error, the evidence at
trial included an officer’s testimony that defendant pulled
his arm away “[hard] [e]nough to pull me around and I’m
not a small person”; defendant’s testimony that he is “pretty
strong, … strong enough to pull [the] officers”; an officer’s
testimony that after defendant and the officers went to the
ground defendant’s arm was trapped under his body and the
officer had to “adjust [his] position to get [defendant’s] arm
484                                            State v. Hayes

out”; testimony that two officers had “multiple abrasions”
on their hands and knees and that defendant “had some
scrapes”; and a video of the incident from one of the officer’s
body cameras.
         Further, defendant’s theory of the case was that the
state could not prove that defendant intended to resist being
taken into custody and that defendant did not threaten violence or use physical force. Nothing about defendant’s argument involved the severity or type of physical injury as it
pertained to the elements that the state had to prove. In
those circumstances, where the state was required to prove
that defendant’s conduct created a substantial risk of physical injury but was not required to prove that any of the
officers suffered any actual physical injuries, we conclude
that the likelihood that the error affected the verdict is low.
See State v. Horton, 

, 

 (2023)
(where an error falls on the spectrum of likelihood of having affected the verdict goes to its “gravity” and can be an
important consideration to the exercise of discretion (internal quotation marks omitted)).
         Second, with respect to fairness to the parties,
because defendant did not request an instruction on physical injury, the state was not on notice that the severity or
quality of possible physical injury was in dispute. Had the
state been on notice, it could have presented more evidence
on that issue. See Peeples v. Lampert, 

, 

 (2008) (the policies of preservation “ensure[ ] fairness to an opposing party, by permitting the opposing party
to respond to a contention”).
          Third, had defendant objected to the instructions
or requested an instruction on physical injury at the time
of trial, the court could have easily considered it and corrected any error, thus avoiding an unnecessary retrial. See
Dumdei, 

 (we would not exercise our discretion to correct the trial court’s plain error in failing to
instruct the jury on the durational component of substantial pain within the meaning of “physical injury” because
the trial court was not given the opportunity to correct the
error); State v. Inman, 

, 

(2015), rev den, 

 (2016) (identifying the ease with
Nonprecedential Memo Op: 

 (2025)          485

which any error could have been avoided or corrected as a
“significant factor” and noting that “the judicial system has
a strong interest” in avoiding a retrial).
        In sum, we are not persuaded that, even if the trial
court committed plain error, this is a rare and exceptional
case that warrants the exercise of our discretion to correct
the error.
        Affirmed.