State v. Baldwin , 329 Or. App. 445 ( 2023 )

No. 645 December 6, 2023 445
This is a nonprecedential memorandum opinion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.
DOUGLAS ALFRED BALDWIN, JR.,
aka Douglas Baldwin, Jr.,
Defendant-Appellant.
Curry County Circuit Court
21CR19363; A177041
Jesse C. Margolis, Judge.
Submitted April 26, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Affirmed.
446 State v. Baldwin
PAGÁN, J.
Defendant was convicted of resisting arrest, ORS
162.315 (Count 1), and second-degree criminal trespass,
ORS 164.245 (Count 2). On appeal, defendant raises two
assignments of error. For the reasons explained below, we
affirm.
First, defendant argues that the trial court erred
when it denied his request to waive his right to counsel.
Relying primarily on State v. Dunn, 318 Or App 744, 747-
48, 508 P3d 586 (2022) and State v. Glasby, 301 Or App 479,
485-86, 456 P3d 305 (2019), defendant argues that the trial
court failed to conduct an adequate colloquy with defen-
dant to determine whether his waiver of counsel was valid.
Defendant’s reliance on those cases is misplaced because, in
both of them, the trial court summarily denied defendant’s
request. That did not occur here. Instead, at a number of
pre-trial hearings, the trial court considered defendant’s
request, explained to defendant some of the risks of self-
representation, provided defendant with a waiver of coun-
sel form, and, although defendant signed it, defendant sub-
sequently told the trial court that he did not understand
it. Based on that record, the trial court did not err when
it determined that defendant did not knowingly waive his
right to counsel. See State v. Meyrick, 313 Or 125, 132, 831
P2d 666 (1992) (When determining whether a waiver is
knowing, a trial court “should focus on what the defendant
knows and understands.” (Emphasis in original.)).
Second, regarding his conviction for resisting arrest,
defendant argues that the trial court plainly erred when it
failed to instruct the jury that the state was required to
prove that defendant was at least criminally negligent with
respect to the element of creating a substantial risk of phys-
ical injury. We agree that there was plain error. See State v.
Tow, 321 Or App 294, 298, 515 P3d 936 (2022) (“[T]he trial
court plainly erred when it did not instruct the jury that
it had to find that defendant acted with a culpable mental
state with respect to ‘the substantial risk of physical injury’
element in ORS 162.315(2)(c).”).
Nonprecedential Memo Op: 329 Or App 445 (2023) 447
However, reviewing the evidence presented at trial,
we conclude that the error was harmless.1 The officer who
arrested defendant testified that he advised defendant that
he was under arrest a number of times, but defendant kept
backing away from the officer. When the officer attempted
to grasp defendant, defendant forcefully pulled away, caus-
ing defendant to fall to the ground and causing the officer
to almost lose his balance. When defendant attempted to
get back up, the officer kept him on the ground, but defen-
dant continued to pull his arms away from the officer and
attempted to bite the officer. It took three officers to place
defendant in handcuffs. Considering that evidence, we con-
clude that, if the jury had been properly instructed, then
there is no likelihood that the jury would not have found that
defendant was at least criminally negligent with respect to
creating a substantial risk of physical injury. See State v.
Stone, 324 Or App 688, 695, 527 P3d 800 (2023) (describing
the required harmlessness analysis). Thus, the error did not
affect the outcome and it was harmless.
Affirmed.
1
In State v. Perkins, 325 Or App 624, 630-31, 529 P3d 999 (2023), we
explained that when a claim of error relates to the omission of a mental state
instruction on an element of the offense, it implicates a federal constitutional
violation. Thus, when the claimed error is preserved, in order to affirm, we must
be able to conclude that the error was harmless beyond a reasonable doubt.
See Chapman v. California, 386 US 18, 24, 87 S Ct 824, 17 L Ed 2d 705 (1967)
(A preserved claim of constitutional error identified on direct appeal does not
require reversal of a conviction if the prosecution can establish that the error was
harmless beyond a reasonable doubt.). Because the error here is not preserved,
we default to Oregon’s harmless error analysis. See State v. Horton, 327 Or App
256, 263-64, 535 P3d 338 (2023) (applying Oregon harmless error standard to
unpreserved plain error in failing to give mental state instruction on element of
offense).