State v. Tow

• Decision Date: 10 August 2022
• Docket Number: A170948 (Control), A170950
• Citation: 321 Or.App. 294,515 P.3d 936
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Leonard Dale TOW, Defendant-Appellant.
• Court: Oregon Court of Appeals

321 Or.App. 294

515 P.3d 936

STATE of Oregon, Plaintiff-Respondent,

v.Leonard Dale TOW, Defendant-Appellant.

A170948 (Control), A170950

Court of Appeals of Oregon.

August 10, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, for petition. Kyle Krohn, Deputy Public Defender, filed the supplemental brief.

Ellen F. Rosenblum, Salem, Attorney General, Benjamin Gutman, Salem, Solicitor General, and Michael A. Casper, Salem, Assistant Attorney General, for response.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

POWERS, J.

In this consolidated criminal case, defendant petitions for reconsideration of our per curiam opinion in State v. Tow , 318 Or App 566, 507 P.3d 295 (2022), in which we affirmed in light of our recent decision in State v. Prophet , 318 Or App 330, 507 P.3d 735 (2022), defendant's conviction of resisting arrest ( ORS 162.315 ) and finding that he violated the terms of his probation. For the reasons explained below, we conclude that the trial court plainly erred in failing to instruct the jury that it had to find that defendant acted with a culpable mental state for one of the elements of resisting arrest and further conclude that the error was not harmless. Accordingly, we allow reconsideration, withdraw our former disposition, and reverse and remand for further proceedings.

The petition for reconsideration arises out of a quirk in the procedural history of this case. The day before we issued our initial per curiam opinion, defendant filed a motion requesting to file supplemental briefing. That motion, however, was not entered into the Appellate Case Management System (ACMS)—or viewed by the panel—until the day after the per curiam opinion issued. Given the timing of the events, we denied the motion for supplemental briefing without prejudice, so as to allow defendant to file a petition for reconsideration. After defendant filed the petition for reconsideration, we requested supplemental briefing from the parties to address two Supreme Court cases that were decided after the briefing in this case— State v. Owen , 369 Or. 288, 505 P.3d 953 (2022), and State v. McKinney/ Shiffer , 369 Or. 325, 505 P.3d 946 (2022) —as well as our recent decision in Prophet .

On reconsideration, defendant reasserts that the trial court erred in failing to instruct the jury that resisting arrest requires a mental state for the element of creating a substantial risk of physical injury.¹ Defendant also contends that the recent cases provide an alternative ground for reversal and requests that we conduct plain-error review. Specifically, defendant relies on the Supreme Court's recent decision in Owen to argue that the "minimum mental state for any element that requires one is criminal negligence."² Further, defendant explains that Prophet subsequently held that "resisting arrest requires a mental state for the risk of injury element, though [the court] did not expressly identify the correct mental state." Therefore, according to defendant, " Prophet and Owen together establish that the trial court erred when it failed to instruct the jury that a mental state of at least criminal negligence applied to the risk of injury element—and when it instead gave only the uniform [jury] instructions, which do not specify any mental state for the element." Defendant further asserts that the error was not harmless and requests that we exercise our discretion to correct the error.³

In response, the state argues that the alleged error does not constitute plain error because it is not obvious or beyond dispute that the trial court was required to instruct the jury that resisting arrest requires a mental state of at least criminal negligence for the element of creating a substantial risk of physical injury, or that the instruction given did not suffice. In particular, the state contends that the legislature "went out of its way to identify a particular kind of conduct that necessarily falls within that definition" by including in ORS 162.315(2)(c) "behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer." Therefore, the state argues that it was not necessary for the state to have to prove that defendant had a culpable mental state for the risk of injury element, because the state made a showing that defendant's behavior was "clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer." Highlighting that its theory of the case was that defendant kicked and flailed at the officers in an attempt to prevent them from taking him into custody, the state argues that that conduct, if proven, constituted per se resistance. In the alternative, the state asserts that the error was harmless because the jury found that defendant intentionally resisted arrest by struggling with the officers and that there is little likelihood that the jury would not have also found that he was criminally negligent with respect to creating a substantial risk of injury to himself or the officers.

In light of recent cases on the law of culpable mental states, we conclude that the 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). See State v. Waterman , 319 Or App 695, 702, 511 P.3d 78 (2022) (concluding that, under Owen and other cases, the trial court plainly erred in not instructing the jury that it had to find that the defendant acted with a culpable mental state with respect to the value of property damaged for purposes of first-degree criminal mischief); see also State v. Jury , 185 Or App 132, 136, 57 P.3d 970 (2002), rev den ,...