State v. Chance ( 2024 )

486 November 27, 2024 No. 860
This is a nonprecedential memorandum opinion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.
JASON MICHAEL CHANCE,
Defendant-Appellant.
Clackamas County Circuit Court
21CR25743; A180720
Thomas J. Rastetter, Judge.
Submitted August 29, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Adam Holbrook, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 336 Or App 486 (2024) 487
TOOKEY, P. J.
Following a jury trial, defendant was convicted of
fleeing or attempting to elude a police officer, ORS 811.540(1)
(b)(A) (Count 1); driving under the influence of intoxicants,
ORS 813.010 (Count 2); and reckless driving, ORS 811.140
(Count 3). On appeal, he raises two unpreserved assign-
ments of error related to his conviction and sentence on
Count 1. We affirm.
In his first assignment of error, defendant contends
that the trial court plainly erred in “instructing the jury
on the inchoate crime of attempt,” because the required
mental state for attempting to elude an officer is knowingly.
The state concedes, and we agree, that that instruction was
legally erroneous. See State v. Rapp, 306 Or App 265, 277, 473
P3d 1126, rev den, 367 Or 291 (2020) (“Nothing in the text
or context of [ORS 811.540] suggests that, by using the word
‘attempts,’ the legislature meant to import an ‘intentional’
mental state with respect to the ‘attempts to elude’ aspect
of the statute.”). The state also contends, however, that the
error was not “plain error,” because “defendant had a plausi-
ble strategic reason for not objecting to the instruction.”1
Assuming without deciding that the error is plain
and not harmless, considering the gravity of the error—
among other factors—we are not persuaded to exercise our
discretion to correct any plain error in this case. State v.
Ailes, 312 Or 376, 382 n 6, 823 P2d 956 (1991) (in determin-
ing whether to exercise our discretion to correct plain error,
we consider, among other points, “the gravity of the error”
and “the ends of justice in the particular case”). In partic-
ular, the error here was not grave because the instruction
on the inchoate crime of attempt required the jury to find
that defendant’s conduct was intentional, which is a higher
1
The Supreme Court recently clarified that, at least in cases of this sort,
where the alleged error is an improper jury instruction, an argument that defen-
dant had a strategic reason not to object is properly a consideration in determin-
ing whether to exercise discretion to correct plain error, but not in determining
whether any error is plain. State v. Wiltse, 373 Or 1, 19, 23, ___ P3d ___ (2024)
(in determining whether to exercise discretion to correct plain error “courts may
also consider whether the party alleging the plain error made * * * a strategic
choice not to object to it” and that “an appellate court can determine whether
a jury instruction violates the rules that govern jury instructions based on the
content of the instruction itself”).
488 State v. Chance
mental state than knowingly. That is, in finding that defen-
dant intentionally took as substantial step toward eluding
an officer, the jury necessarily found defendant knew what
conduct he was engaging in.
Put another way, given the jury instructions and
defendant’s actions during the incident as found by the jury,
we do not view the error as grave. See State v. Horton, 327
Or App 256, 264, 535 P3d 338 (2023) (“The likelihood that
the error affected the outcome goes to its ‘gravity’ and to ‘the
ends of justice.’ ”).
In his second assignment of error, defendant con-
tends that the trial court plainly erred when it imposed
$761 in court-appointed attorney fees without sufficient evi-
dence to support a finding that defendant “is or may be able
to pay” those fees. See ORS 151.505(3) (“The court may not
require a person to pay costs under this section unless the
person is or may be able to pay the costs.”); ORS 161.665(4)
(“The court may not sentence a defendant to pay costs under
this section unless the defendant is or may be able to pay
them.”).
Based on our review of the record, we agree with
the state’s arguments on appeal that the record, which
includes evidence of defendant’s career as a paramedic and
of defendant having discretionary income on the night of his
conduct, supports a nonspeculative inference of defendant’s
current or future ability to pay the attorney fees imposed
by the court. See State v. Mendoza, 286 Or App 548, 551,
401 P3d 288 (2017) (“[W]e have affirmed the imposition of
court-appointed attorney fees when the record reflects that
the defendant either had a source of income, an educational
background, or the prospect of future employment.”).
Affirmed.