State v. Ochoa-Perez ( 2022 )

473
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted December 15, 2020, affirmed June 23, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JUAN MANUEL OCHOA-PEREZ,
Defendant-Appellant.
Washington County Circuit Court
18CR68053; A171326
Oscar Garcia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the briefs for respondent.
Before Mooney, Presiding Judge, and Egan, Judge, and
Pagán, Judge.
EGAN, J.
Affirmed.
474 State v. Ochoa-Perez
EGAN, J.
Defendant appeals a judgment of conviction for
interfering with a peace officer, ORS 162.247, and resist-
ing arrest, ORS 162.315. Defendant raises two assignments
of error and a supplemental assignment of error. We reject
defendant’s second assignment of error without discussion.
In defendant’s first assignment, he argues that the trial
court erred in rejecting defendant’s proposed special jury
instruction on the resisting arrest charge. In defendant’s
supplemental assignment of error, defendant requests that
we review whether the trial court erred in failing to instruct
the jury on criminal negligence as plain error. As to the first
assignment, we conclude that the court did not err. As to
defendant’s supplemental assignment of error, we decline to
exercise our discretion to review the error. Accordingly, we
affirm.
The relevant facts are brief and undisputed. A
domestic dispute was reported, and, in response, several
sheriff’s deputies arrived at defendant’s location. As a part
of the deputies’ training, they separated defendant from the
other people at that location, including the alleged victim of
the domestic disturbance. After a brief conversation, defen-
dant attempted to go inside, at which time the deputies told
him that he was “not free to go inside the house.” The depu-
ties then ordered defendant to put his hands behind his back
and attempted to handcuff him. After one of the deputies
grabbed defendant’s hand, he “yanked his hand away” and
then began to “struggle” with one of the deputies until the
deputy was able to force defendant to the ground. Defendant
was then arrested for resisting arrest and interfering with
a peace officer.
The day before trial, defendant filed his proposed
jury instructions, including a special jury instruction, which
provided a definition of resisting arrest that included as an
element that “[b]y resisting, [defendant] intentionally cre-
ated a substantial risk of physical injury to any person.” The
trial court rejected that instruction, and, rather, instructed
the jury that, to find defendant guilty of resisting arrest, it
must find that he “did unlawfully and intentionally resist
[a sheriff’s deputy], a person known to the defendant to be
Nonprecedential Memo Op: 320 Or App 473 (2022) 475
a peace officer, in making an arrest.” The court then gave a
separate instruction on the definition of “resists,” as follows:
“[U]se or threatened use of violence, physical force, or any
other means that create[s] a substantial risk of physical
injury to any person and includes but is not limited to
behavior clearly intended to prevent being taken into cus-
tody by overcoming the actions of the arresting officer. The
behavior does not have to result in actual physical injury
to an officer.”
The jury found defendant guilty on both counts. This timely
appeal followed.
Defendant’s first assignment of error raises an
issue that we recently decided in State v. Prophet, 318 Or
App 330, 507 P3d 735 (2022). In that assignment, defendant
asserts that the trial court erred when it refused to give his
special jury instruction that the crime of resisting arrest
requires that the defendant intend to create a substantial
risk of physical injury. We concluded in Prophet that ORS
162.315 does not require that a defendant intentionally
create a substantial risk of harm, and therefore it was not
error to refuse to give the defendant’s proposed instruction
that stated that an individual must intentionally create a
substantial risk of harm to be convicted of resisting arrest.
Id. at 331. Prophet controls here, and, thus, the trial court
did not err in failing to give defendant’s proposed erroneous
jury instruction.
In defendant’s supplemental assignment of error,
defendant argues that, even if the mental state for the “sub-
stantial risk of injury” element of resisting arrest does not
require a mental state of “intentionally,” then the mental
state must be criminal negligence. Defendant’s reasoning
is that, because “the element of creating a substantial risk
of injury is a ‘material element that necessarily requires a
mental state,’ ” id. at 350, that mental state must be at least
criminal negligence under the reasoning of State v. Owen,
369 Or 288, 322, 505 P3d 953 (2022). Defendant further
argues that the error is plain and that we should exercise
our discretion to review that error.
If the trial court committed plain error, we must
determine whether to exercise our discretion to correct it.
476 State v. Ochoa-Perez
See Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823
P2d 956 (1991) (listing factors to consider in deciding to exer-
cise discretion). Assuming that the correct mental state for
the “substantial risk of injury” element of resisting arrest is,
at a minimum, criminal negligence, we decline to exercise
our discretion to correct any error here because the jury’s
verdict indicates that any potential error was harmless.1
See Owen, 369 Or at 323 (observing that an error is harm-
less if there was “little likelihood that the error affected the
verdict” (citation omitted)); see also State v. Ross, 271 Or App
1, 7, 349 P3d 620 (2015) (declining to exercise our discretion
to review a plain error because error was likely harmless).
Instructive is our decision in State v. Chemxananou,
319 Or App 636, 510 P3d 954 (2022). In Chemxananou, the
defendant was convicted of first-degree criminal mistreat-
ment, which, as relevant to that case, required that defen-
dant violate “a legal duty to provide care for a dependent
person” and “knowingly: [c]ause[ ] physical injury or injuries
to the dependent person.” 319 Or App at 639 (internal quota-
tion marks omitted; brackets in original). Although the trial
court in Chemxananou did not instruct the jury of the crim-
inal negligence mental state with respect to the defendant’s
conduct of causing physical injury in the first-degree crim-
inal mistreatment statute, which we assumed but did not
decide was necessary pursuant to Owen, we nevertheless
concluded that the error was harmless because “[i]nstruct-
ing the jury that defendant must have acted with criminal
negligence that his conduct would cause injury would not
have impacted the verdict.” Id. at 640. We reasoned that
“[t]he jury found that defendant, with an awareness that
his conduct was assaultive in nature, strangled and kicked
K, hit the back of N’s head with a plate, and punched N in
the face. It is implausible that the jury, having found that
defendant knowingly took those actions, would then find
that he was not at least negligent with respect to the fact
that the children could be injured as a result.”
Id.1
Defendant only argues that the correct mental state is criminal negligence.
Thus, we limit our discussion to whether the error was harmless under the men-
tal state of criminal negligence, and we do not determine whether the error would
be harmless under any other potential mental state for the element.
Nonprecedential Memo Op: 320 Or App 473 (2022) 477
Similarly, here, given the facts and the instructions
to the jury, there is little likelihood that the error affected
the verdict. The jury was instructed that it had to find that
defendant “intentionally” resisted the officers; that is, that
he acted intentionally when he struggled against their
attempt to handcuff him. Given that, there is little likeli-
hood that the jury would not have also found that he was
criminally negligent with respect to creating a substan-
tial risk of injury to himself or the deputy, especially given
the risks that are associated with struggling with police,
as demonstrated by the part of the instruction that defines
resists as “behavior clearly intended to prevent being taken
into custody by overcoming the actions of the arresting offi-
cer.” Thus, because there is little likelihood that the jury
would have found otherwise absent the error, we decline to
exercise our discretion to review the error.
Affirmed.