State v. Barrett

432                   October 22, 2025               No. 924

   This is a nonprecedential memorandum opinion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.
               MATTHEW RAY BARRETT,
                  Defendant-Appellant.
               Curry County Circuit Court
                 24CR01533; A183953

   Jesse C. Margolis, Judge.
   Submitted September 8, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
   AOYAGI, P. J.
   Conviction for assaulting a public safety officer (Count 1)
reversed and remanded; convictions for escape (Counts 2
and 3) reversed and remanded for entry of a single conviction for escape in the second degree; remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)            433

        AOYAGI, P. J.
         Defendant was convicted of assaulting a public
safety officer (APSO), ORS 163.208; second-degree escape,
ORS 162.155; third-degree escape, ORS 162.145; resisting
arrest, ORS 162.315; disorderly conduct, ORS 166.025; and
harassment, ORS 166.065. On appeal, he raises two assignments of error, the first regarding the jury instructions on
the APSO charge, and the second regarding merger of the
escape verdicts. We conclude that both claims of error are
well taken.
          Jury instructions on APSO. In his first assignment
of error, defendant contends that the trial court plainly erred
in failing to instruct the jury on the culpable mental state
requirement for the physical injury element of APSO. The
state concedes, and we agree, that the court plainly erred in
that regard. See State v. Owen, 

, 

 (2022) (holding that the result element of second-degree
assault is a material element that requires proof of at least
criminal negligence); State v. Sell, 

, 

 (2023), rev den, 

 (2024) (holding that it
was plain error not to instruct the jury that the defendant
had to be at least criminally negligent as to the physical
injury element of APSO).
         The next question is whether the error was harmless. State v. Ortiz, 

, 

 (2024)
(“Under Article VII (Amended), section 3, of the Oregon
Constitution, an appellate court may not reverse a criminal
defendant’s conviction based on an error—whether preserved
or unpreserved—that is harmless.”). An error is harmless if
there is little likelihood that it affected the verdict. 

 In
assessing whether an instructional 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 the respect to the various charges and
defenses at issue.” Owen, 

 (internal quotation
marks omitted). As to omitted mental-state instructions in
particular, we “assess whether the jury might have found
that element to be unproved, had it been instructed on it.”
State v. Horton, 

, 

 (2023).
434                                           State v. Barrett

          In this case, having reviewed the record, including
the bodycam footage, we are unpersuaded that the error
was harmless. Based on the evidence, there is “some likelihood that the jury might not have been persuaded that
[defendant] had the requisite mental state, had it considered
that issue.” State v. Stone, 

, 

 (2023) (emphasis in original). And we disagree with the
state that the jury’s other findings establish harmlessness.
See, e.g., State v. Tellez-Suarez, 

, 

 (2022), rev den, 

 (2023) (a similar error
was harmless because there was little likelihood that the
jury would have concluded that defendant was not at least
negligent as to child’s resulting physical injury when the
jury found that the defendant “was aware of the assaultive
nature of his conduct” in pushing child into a wall and a
bookcase with sufficient force to cause physical injury).
         Finally, we exercise our discretion to correct the
error. The error was grave insofar as it may have led to a felony conviction. The ends of justice favor correcting an error
of this nature, which allowed the jury to decide guilt without
making a necessary factual finding. And defendant had no
apparent strategic reason not to object. See Ailes v. Portland
Meadows, Inc., 

, 382 n 6, 

 (1991) (the
gravity of the error, the nature of the case, the competing
interests of the parties, and the ends of justice in a particular case are factors the court may consider in deciding
whether to exercise its discretion to correct an unpreserved
error); see also, e.g., State v. Johnson, 

, 463-
64, 

 (2025) (exercising discretion to correct a
plain error in failing to instruct on the mental state requirement for the value element of two crimes, and citing the fact
the omitted element elevated one of the crimes to a felony,
that the ends of justice weighed in favor of having a trier of
fact decide each element, and the lack of a strategic reason
not to object). We reverse and remand for a new trial on the
APSO count.
         Merger. In his second assignment of error, defendant argues that the trial court erred by declining to merge
the guilty verdicts on second- and third-degree escape. The
claim of error is preserved. We review for legal error. State
Nonprecedential Memo Op: 

 (2025)             435

v. White, 

, 

 (2019), rev den, 

 (2020).
         The indictment alleged as to both escape charges
that defendant unlawfully and knowingly escaped from custody. The only difference between the charges was that the
second-degree charge alleged that he used physical force to
escape. Compare ORS 162.155(1) (elements of second-degree
escape), with ORS 162.145(1) (elements of third-degree
escape). Defendant argues, the state concedes, and we agree
that the elements of third-degree escape are subsumed
within the elements of second-degree escape, such that it
was error not to merge the verdicts. Where, as here, “the
same conduct violates two statutory provisions, one of which
is a lesser-included offense of the other, the violations result
in a single punishable offense; that is, they merge.” State
v. Gensitskiy, 

, 

 (2019); see ORS
161.067(1) (“When the same conduct or criminal episode violates two or more statutory provisions and each provision
requires proof of an element that the others do not, there are
as many separately punishable offenses as there are separate statutory violations.”). On remand, the escape verdicts
should be merged into a single conviction for second-degree
escape.
        Conviction for assaulting a public safety officer
(Count 1) reversed and remanded; convictions for escape
(Counts 2 and 3) reversed and remanded for entry of a single conviction for escape in the second degree; remanded for
resentencing; otherwise affirmed.