State v. Higgins ( 2023 )

No. 619 November 29, 2023 309
This is a nonprecedential memorandum opinion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.
MICHAEL ANTHONY HIGGINS,
Defendant-Appellant.
Polk County Circuit Court
21CR56708; A178813
Monte S. Campbell, Judge.
Submitted August 21, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Alex Jones, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Hellman, Judge,
and Armstrong, Senior Judge.
ORTEGA, P. J.
Affirmed.
310 State v. Higgins
ORTEGA, P. J.
Defendant appeals a judgment convicting him of,
among other offenses, resisting arrest, ORS 162.315.1 In a
single unpreserved assignment of error, he argues that the
trial court plainly erred and prejudiced him by failing to
instruct the jury that a culpable mental state attached to
the “substantial risk of physical injury” element of resist-
ing arrest. The state concedes that the court plainly erred
but argues that any error was harmless. We agree with the
state and, therefore, affirm the trial court’s judgment.
Defendant’s conviction arose from an incident where
the police handcuffed him while arresting him for breaking
into a building. At his trial, defendant argued that he was
under the influence of intoxicants at the time of the incident
and could not have developed the necessary mental state to
resist arrest. The state introduced corroborating testimony
from the three officers involved in defendant’s arrest—the
arresting officer, Sergeant Fenk, and Deputies Fagan and
Hutchison—and video of the incident recorded by two of the
officers’ body cameras. Fenk testified that defendant was
“not” “combative” upon learning that he was under arrest
but “spun away” and “kind of did a windmill swing at” Fenk
when Fenk started to handcuff him; as the officers put
defendant to the ground to detain him “safely,” defendant
screamed at them and used physical strength to “resist[ ]”
the officers’ “efforts to try to get his hands behind his back,”
taking them at least 30 seconds to contain and handcuff
him.
As to defendant’s demeanor, Fenk testified that
defendant “was fine” and Fagan testified that, based on his
experience, defendant did not appear to be under the influ-
ence. According to Fenk and to the related footage, before
the incident defendant was able to engage in conversation
and answer Fenk’s routine questions. Defendant’s mother
testified that prior to the incident defendant appeared to
be in “psychosis” from using methamphetamine; she was
1
A person who “intentionally resists” a peace officer “in making an arrest”
commits the crime of resisting arrest. ORS 162.315(1); see also ORS 162.315(2)(c)
(defining the term “resists,” which includes a “substantial risk of physical injury”
element).
Nonprecedential Memo Op: 329 Or App 309 (2023) 311
unsure if her observations occurred during the morning of
his arrest or on the prior morning.2
Defendant maintained during closing arguments
that he could not have formed the mental state to resist
arrest. The court gave the jury the uniform instructions
described below and did not instruct the jury whether the
state was required to prove defendant’s mental state for the
“substantial risk of physical injury” element.
“When used in the phrase ‘intentionally resist the police
officer,’ ‘intentionally’ means that a person acts with a con-
scious objective to resist acts of a peace officer in making
an arrest.
“* * * * *
“[T]o establish a crime of resisting arrest, the state must
prove beyond a reasonable doubt [that defendant] inten-
tionally resisted the peace officer in making the arrest.
“* * * * *
“The term ‘resist’ means the use or threatened use of
violence, physical force, or any other means to create a sub-
stantial risk of physical injury to any person and includes,
but is not limited to, behavior clearly intended to prevent
being taken into custody by overcoming the actions of the
arresting officer.”
The jury found defendant guilty.
On appeal, defendant argues for the first time that
the state was required to prove his mental state for the “sub-
stantial risk of physical injury” element and that the trial
court erred and prejudiced him by not providing that instruc-
tion. See State v. Tow, 321 Or App 294, 298, 515 P3d 936
(2022) (requiring a culpable mental state for that element);
see also State v. Egeland, 260 Or App 741, 746-52, 320 P3d
657 (2014) (discussing prejudice of an instructional error).
He specifically argues that the court should have instructed
the jury that, to find him guilty of resisting arrest, the jury
had to find that he was at least criminally negligent as to
2
Fenk also testified that there were “signs” that defendant “could have been”
under the influence of intoxicating substances—defendant had blood on his face
from, according to him, getting hurt during a fall; he was not wearing pants,
underwear, or shoes; and he had a blanket covering his lower body.
312 State v. Higgins
the “substantial risk of physical injury” posed by his con-
duct. He asks us to exercise our discretion to review his case
for plain error under ORAP 5.45 and to remand for a new
trial. The state concedes that the trial court erred in failing
to instruct as to a culpable mental state for the “substantial
risk of physical injury” element but asserts that we should
not exercise our discretion to address that error. We agree
because, even assuming that the trial court was required
to instruct the jury that the jury had to find whether defen-
dant acted with, at a minimum, criminal negligence,3 we
conclude that any error in the court’s failure to do that was
harmless.
We review unpreserved challenges concerning
mental-state instructions to determine whether any asserted
error was harmless, and if we conclude so, we affirm. State
v. McKinney/Shiffer, 369 Or 325, 334, 505 P3d 946 (2022).4 A
trial court’s instructional error is harmless if there is “little
likelihood” that the particular error affected the verdict—
that is, when “the particular issue to which the error per-
tains has no relationship” to the related jury determination.
State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003); see also
ORS 138.257(2) (prohibiting reversal of a harmless error).
An instructional error is prejudicial if the error “probably
created an erroneous impression of the law in the minds of
the jury members and if that erroneous impression may have
affected the outcome of the case.” McKinney/Shiffer, 369 Or
at 335 (internal quotation marks omitted). To assess that, 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.” State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020).
Here, we conclude that there is “little likelihood”
that the jury would have reached a different verdict had
3
Oregon courts have not addressed what exact mental state would apply for
the “substantial risk of physical injury” element of resisting arrest. See Tow, 321
Or at 299 (declining to make that determination). Because that decision does not
affect our review, we assume, without deciding, that the minimum applicable
culpable mental state for that element is criminal negligence. See State v. Owen,
369 Or 288, 505 P3d 953 (2022) (applying a criminal negligence standard for the
injury element of second-degree assault).
4
Cf. ORS 19.415(2) (no judgment shall be reversed, “except for error substan-
tially affecting the rights of a party”).
Nonprecedential Memo Op: 329 Or App 309 (2023) 313
the court given the “criminal negligence” instruction that
defendant proposes. The jury’s guilty verdict was based on
instructions that required a finding that defendant acted
intentionally—”with a conscious objective”—to “resist” his
arrest by using means, including “the use or threatened use
of violence” and “physical force,” to “create a substantial risk
of physical injury” to those present at the time. Those find-
ings indicate that the jury believed that the evidence proved
that defendant consciously chose to spin away, scream, and
use physical force to resist his handcuffing and so resist his
arrest. Those findings further indicate that the jury did not
believe that defendant’s alleged intoxication prevented him
from acting intentionally at the time.
More specifically, the jury’s findings discussed
above, especially the inferences drawn from those findings
about how the jury viewed the evidence in the record, indi-
cate that there is little likelihood that the absence of the
criminal negligence instruction at issue had any “relation-
ship to” the jury’s respective determination.
“ ‘Criminal negligence’ * * * means that a person fails
to be aware of a substantial and unjustifiable risk that [a]
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 per-
son would observe in the situation.”
ORS 161.085(10). Based on the jury’s findings—that defen-
dant acted intentionally to “resist” his arrest by using the
specified means to “create a substantial risk of physical
injury” to those present at the time—there is little likeli-
hood that the jury would not have also found that defen-
dant failed to be aware that his conduct created the risk of
physical injury at issue. See State v. Owen, 369 Or 288, 324,
505 P3d 953 (2022) (the jury’s findings that the defendant
knew that his conduct was assaultive and “readily capable
of causing serious physical injury” indicated that the jury
would not have found that the defendant was unaware of the
risk of physical injury posed by his conduct). Likewise, there
is little likelihood that the jury would not have found that
defendant’s failure to be aware of the risk created by his
314 State v. Higgins
conduct constituted the type of deviation described in ORS
161.085(10). See id. (supporting that conclusion).
Affirmed.