No. 574 November 8, 2023 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARL ALLEN DYE, JR.,
Defendant-Appellant.
Lane County Circuit Court
21CR21866; A177666
Stephen W. Morgan, Judge.
Argued and submitted August 30, 2023.
Francis C. Gieringer, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
E. Nani Apo, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
2 State v. Dye
Cite as 329 Or App 1 (2023) 3
EGAN, J.
Defendant appeals a judgment of conviction for flee-
ing or attempting to elude a police officer by vehicle and on
foot, ORS 811.540(1) (Counts 1 and 3); reckless driving, ORS
811.140 (Count 2); and resisting arrest, ORS 162.315 (Count
4). Defendant raises four assignments of error. In his first two
assignments, defendant challenges the trial court’s denial of
his motion for judgment of acquittal on Counts 2 and 3. In
his third and fourth assignments, defendant requests that
we review as plain error the trial court’s failure to instruct
the jury that (1) a culpable mental state attached to the
“substantial risk of physical injury” element for his resist-
ing arrest charge (Count 4), and (2) the jury must concur on
the factual occurrence supporting the charge of vehicular
fleeing or attempting to elude (Count 1). As to the first and
second assignments, we conclude that the trial court did not
err. For the third and fourth assignments, we conclude that
any errors relating to the jury instructions were harmless.
Accordingly, we affirm.
I. FACTS
On May 5, 2021, Springfield Police Officer Parado
noticed a speeding Toyota Scion. After following the Scion,
Parado eventually got directly behind the car and activated
his siren; the driver continued driving and did not stop.
The Scion turned onto Cedar Flat Road—a winding, uphill
road—and although Parado followed, he eventually lost
sight of the car. Parado reported the license plate number to
dispatch.
About 20 minutes later, Lane County Sheriff’s
Deputy Dodds saw a car matching the license plate and
description. According to Dodds, traffic in the area that day
had been “moderate,” and during this encounter, Dodds and
the driver passed two businesses. Dodds radioed dispatch,
pulled behind the Scion, and began to follow it. Dodds acti-
vated his emergency lights to signal the driver to pull over.
The driver did not pull over, and instead, the driver acceler-
ated to 90 miles-per-hour in a 55 miles-per-hour zone.
Dodds activated his siren and radioed dispatch that
he was in pursuit of the Scion. He followed the car for a
4 State v. Dye
mile and a half, and during that time, the car crossed the
center line two or three more times by at least a tire width.
After about a mile on the highway, the driver turned left up
a driveway that had been affected by a recent fire and was
burned out. While Dodds followed the driver up the drive-
way, his tire pressure warning light appeared, and his vehi-
cle became disabled. Dodds pulled over and discovered that
he had two flat tires. He last saw the Scion turn around a
bend. About 20 minutes later, additional deputies and state
police arrived to help Dodds and continue searching for the
Scion.
Springfield Police Officer Hargis, along with other
officers, located the Scion about 100 yards from Dodds’
vehicle. No one was in the car, but the Scion’s engine was
running, and it had a flat tire. Other than the police vehi-
cles and Scion, no other vehicles were in the area. Hargis
eventually located defendant in a creek nearby—about 10 to
15 yards north of the Scion—lying on a large, flat rock in the
middle of the creek with his dog. After locating defendant,
Hargis and two other officers went into the creek to retrieve
him, and Hargis had to navigate slippery rocks while appre-
hending defendant. Next to Hargis, there was a waterfall
that fell about four to six feet into a plunge bowl. When the
officers attempted to handcuff defendant, he did not follow
their commands. Hargis grabbed defendant’s right arm to
help the other officers handcuff defendant. Defendant flexed
and pulled his arm forward, which pulled Hargis off-bal-
ance while he was standing on the slippery rocks in the
creek. Hargis became concerned about falling into the creek
and waterfall, so he punched defendant in the face to pre-
vent defendant’s resistance. After officers got a handcuff
on one of his wrists, defendant began pulling Hargis for-
ward again. Hargis became concerned that he was going to
fall into the waterfall and sustain injuries, so he punched
defendant in the face a second time. The officers handcuffed
defendant and escorted him out of the creek.
Dodds walked to where deputies found the Scion,
and he noted that it was the same vehicle that he had pur-
sued. Dodds saw defendant, and he said that defendant
appeared to be the person who he saw driving the Scion.
Cite as 329 Or App 1 (2023) 5
Officers took defendant to the hospital to have his injuries
examined. At the hospital, Parado talked to defendant.
When Parado asked defendant why he ran, defendant said
that he did not want to put up with Parado’s attitude. Parado
also asked where defendant went after Parado lost him, and
defendant said that “he had turned into a random residence
* * * and turned back around on Cedar Flat[,]” which was
where Parado had lost defendant.
Defendant was charged with fleeing or attempting
to elude a police officer, ORS 811.540(1)(b)(A) (Count 1); reck-
less driving, ORS 811.140 (Count 2); fleeing or attempting to
elude a police officer, ORS 811.540(1)(b)(B) (Count 3); and
resisting arrest, ORS 162.315 (Count 4). At trial, Parado,
Dodds, and Hargis testified during the state’s case. After
the state rested, defendant moved for a judgment of acquit-
tal on all four charges. The trial court denied defendant’s
motion for judgment of acquittal.
Defendant testified in his own defense. He said that
he did not drive to the creek, but rather, he walked 24 miles
from his home with his eight-year-old dog. Defendant said
that the walk took him five hours. Defendant also testified
that he laid on the rock because his back spasmed, and
he said that did not pull away from Hargis when officers
attempted to arrest him.
The trial court instructed the jury as to the ele-
ments of resisting arrest:
“Count 4—Resisting Arrest. Oregon law provides that a
person commits the crime of Resisting Arrest if the per-
son intentionally resists a person known by him to be a
peace officer in making an arrest. In this case, to estab-
lish the crime of Resisting Arrest, the State must prove
beyond a reasonable doubt the following elements: (1) The
act occurred on or about May 5, 2021; (2) [Defendant] knew
that a person was making an arrest; (3) [Defendant] knew
that the person making the arrest was a peace officer; and
(4) [Defendant] intentionally resisted the peace officer in
making the arrest.”
The trial court also instructed the jury as to the
definition of “resist”:
6 State v. Dye
“Resist. Use or threatened use of violence, physical force,
or any other means that create a substantial risk of physi-
cal 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. Passive resistance does not constitute behavior
intended to prevent being taken into custody.”
During closing arguments, the state argued that
defendant’s actions in pulling away from Hargis, along with
the dangerous conditions of the creek, supported a finding
that defendant’s conduct created a substantial risk of phys-
ical injury. Defendant argued that Hargis was not credible
and the jury should believe defendant’s testimony that he
did not pull away from Hargis.
The jury found defendant guilty on all four counts.
Defendant appeals.
II. ANALYSIS
As previously noted, defendant assigns error to the
trial court’s denial of his motion for judgment of acquittal
for Counts 2 and 3. In addition, defendant assigns error to
the trial court’s failure to instruct the jury regarding (1) a
culpable mental state for the injury element on the resist-
ing arrest charge (Count 4), and (2) a factual concurrence
instruction on vehicular fleeing or attempting to elude
police officers (Count 1). We will address each of defendant’s
assignments of error in turn.
A. Defendant’s First and Second Assignments of Error
When we review the denial of a motion for judgment
of acquittal, “we review the record and all reasonable infer-
ences from it in the light most favorable to the state to deter-
mine whether a rational trier of fact could have found all the
elements of the offense beyond a reasonable doubt.” State v.
Smith, 218 Or App 568, 571, 180 P3d 148 (2008) (citing State
v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den,
514 US 1005 (1995)).
In his first assignment of error, defendant argues
that the trial court erred by denying his motion for judgment
Cite as 329 Or App 1 (2023) 7
of acquittal on Count 2, reckless driving,1 because the state
(1) failed to prove that defendant drove in a manner that
endangered people or property, and (2) failed to prove that
he “created a substantial risk of endangering people or prop-
erty.” The reckless driving statute “focuses on the ‘manner’
in which a person drives, not on the consequences of the
person’s driving.” State v. Brown, 305 Or App 644, 653, 471
P3d 811, rev den, 367 Or 290 (2020) (citation omitted). “[T]he
state may rely on circumstantial evidence and reasonable
inferences flowing from that evidence” to prove defendant
drove “in a manner that endangers the safety of persons or
property.” See Smith, 218 Or App at 571-72 (citation omitted)
(upholding a conviction of reckless driving when a rational
factfinder could infer that defendant’s driving endangered
the safety of persons or property due to the circumstances of
traffic and defendant’s levels of intoxication).
We conclude that the trial court did not err. A
rational trier of fact could find that defendant endangered
the safety of persons or property based on the evidence that
defendant (1) increased his speed to evade an officer by driv-
ing 90 miles-per-hour (35 miles-per-hour over the limit);
(2) crossed the center line and entered the oncoming lane of
traffic when traffic in that area had been “moderate” that
day; and (3) sped past two businesses. Thus, the trial court
did not err in denying defendant’s motion for judgment of
acquittal on the reckless driving charge.
In defendant’s second assignment of error, he argues
that the trial court erred in denying his motion for judg-
ment of acquittal on Count 3, fleeing or attempting to elude
a police officer on foot.2 He argues that there is insufficient
1
“A person commits the offense of reckless driving if the person recklessly
drives a vehicle upon a highway * * * open to the public in a manner that endan-
gers the safety of persons or property.” ORS 811.140(1)(a). To prove a defendant
acted “recklessly,” the state must show that the defendant is “aware of and con-
sciously disregards a substantial and unjustifiable risk * * *.” ORS 161.085(9).
2
ORS 811.540 provides, in part:
“(1) A person commits the crime of fleeing or attempting to elude a police
officer if:
“(a) The person is operating a motor vehicle; and
“(b) A police officer who is in uniform and prominently displaying the
police officer’s badge of office or operating a vehicle appropriately marked
showing it to be an official police vehicle gives a visual or audible signal to
8 State v. Dye
evidence that (1) law enforcement officers pursued defendant
when he left his vehicle, or that (2) defendant knew that law
enforcement pursued him when he left his vehicle and ran
into the creek.
A defendant “attempts to elude” when the defendant
“attempt[s] to escape the notice or perception of.” State v.
Cave, 223 Or App 60, 68, 195 P3d 446 (2008), rev den, 345 Or
690 (2009). “[T]he focus of an attempt to elude is the defen-
dant’s conduct, not the conduct of the officers.” State v. Reed,
256 Or App 61, 69, 299 P3d 574, rev den, 353 Or 868 (2013).
Even if a defendant “escapes the line of sight” of police offi-
cers, it is still possible for the defendant to “attempt to elude”
police officers, so long as the defendant attempts “to escape
the notice or perception of the police officers when he or she
gets out of the vehicle.” Cave, 223 Or App at 68 (internal
quotation marks omitted).
In this case, the state presented evidence that,
when defendant could no longer drive the Scion because it
had a flat tire, defendant walked to the center of a hazardous
creek nearby. That evidence was sufficient for a rational jury
to find that defendant “attempt[ed] to escape the notice or
perception of” the officers when he exited his vehicle. Thus,
the trial court did not err in denying defendant’s motion for
judgment of acquittal on Count 3.
B. Defendant’s Third and Fourth Assignments of Error
Defendant did not preserve his third and fourth
assignments of error, and he requests that we review those
assignments for plain error. “To constitute plain error, an
error must be one of law, it must be obvious and not reason-
ably in dispute, and the error must be apparent on the record
without having to choose among competing inferences.”
State v. Sell, 328 Or App 82, 94, 536 P3d 1019 (2023) (citing
State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013)).
When the trial court makes a plain error, it is a matter of
bring the vehicle to a stop, including any signal by hand, voice, emergency
light or siren, and * * *:
“* * * * *
“(B) The person gets out of the vehicle and knowingly flees or attempts to
elude the police officer.”
Cite as 329 Or App 1 (2023) 9
discretion whether we will correct it. State v. Gornick, 340
Or 160, 166, 130 P3d 780 (2006) (citation omitted).
In his third assignment of error, defendant argues
that the trial court plainly erred by not instructing the jury
that a culpable mental state attached to the substantial risk
of injury element for resisting arrest,3 which was based on
defendant’s struggle with police as they attempted to take
him into custody in the creek near a waterfall. The state
concedes that, under State v. Owen, 369 Or 288, 322, 505
P3d 953 (2022), the trial court committed plain error by
not instructing the jury as to a culpable mental state for
the injury element, but the state argues that the error was
harmless. We accept the state’s concession and determine
that the trial court committed plain error. See Sell, 328
Or App at 94 (“Here, the jury was not instructed that defen-
dant had to be at least criminally negligent[4] with respect to
the injury element of the crime. That error was one of law, it
is not reasonably in dispute after the Supreme Court’s deci-
sion in Owen, and it appears on the face of the record.”).
Before we turn to whether we can correct that error,
we note that we will consider whether the error was harm-
less under the state harmless error standard. Recently, in
State v. Horton, we explained our choice to use the state
harmless error standard, rather than the federal harmless
error standard, in the unpreserved, plain error context. 327
Or App 256, 263 n 3, 535 P3d 338 (2023). Although we pre-
viously said that “ ‘the failure to submit a required element
of an offense to the jury is a federal constitutional error’ and
that the federal harmlessness standard requires that ‘the
error is harmless beyond a reasonable doubt,’ ” we applied
the state standard for harmlessness because the defendant
3
“A person commits the crime of resisting arrest if the person intentionally
resists a person known by the person to be a peace officer or parole and probation
officer in making an arrest.” ORS 162.315(1). “Resists” means “the use or threat-
ened use of violence, physical force or any other means that creates a substantial
risk of physical injury to any person.” ORS 162.315(2)(c).
4
Criminal negligence requires that defendant
“fail[ed] to be aware of a substantial and unjustifiable risk that the result
will occur or that the 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 person would observe in the situation.”
ORS 161.085(10).
10 State v. Dye
“had not claimed a federal constitutional violation,” and
only argued harmlessness under the state standard. Id.
(quoting State v. Perkins, 325 Or App 624, 630-31, 529 P3d
999 (2023)). In addition, we noted that the state standard
places the burden of persuasion on the defendant, and the
federal standard for harmlessness also places the burden on
defendant when the error is not preserved. Id. (citing State
v. Torres, 206 Or App 436, 445, 136 P3d 1132 (2006); United
States v. Olano, 507 US 725, 734, 113 S Ct 1770, 123 L Ed
2d 508 (1993)). Defendant in this case, like the defendant in
Horton, does not claim a federal constitutional violation, did
not preserve the error, and only argues the state harmless-
ness standard. Thus, we will review for harmlessness under
the state standard.
We now turn to whether we can correct the plain
error. If an error is harmless, then we have no discretion to
correct the error, and we must affirm; but, if the error was
not harmless, we must determine whether to exercise our
discretion to correct it. Horton, 327 Or App at 262. An error
is harmless if there was “little likelihood” that the error
affected the verdict. State v. Ramoz, 367 Or 670, 704, 483
P3d 615 (2021) (citation omitted). To determine if an error
was harmless, “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.” Owen, 369 Or at 323 (citation
and internal quotation marks omitted). “Instructional error
is not harmless if it probably created an erroneous impres-
sion of the law in the minds of the jury and if that errone-
ous impression may have affected the outcome of the case.”
Ramoz, 367 Or at 704-05 (citations and internal quotation
marks omitted).
In this case, the jury’s verdict indicates that the
instructional error was harmless. Assuming that the cor-
rect mental state for the “substantial risk of injury” element
of resisting arrest is, at a minimum, criminal negligence,5
5
Although we have rejected the idea that a defendant must act “intention-
ally” for the “substantial risk of physical injury” element, State v. Prophet, 318
Or App 330, 350, 507 P3d 735, rev den, 370 Or 472 (2022), Oregon courts have not
addressed, and the parties have not asked us to consider, the exact mental state
required for that element of this offense. In the absence of the need to make that
Cite as 329 Or App 1 (2023) 11
the jury’s verdict indicates that it necessarily would have
also found that defendant was at least criminally negli-
gent with respect to whether there was a substantial risk
of physical injury. Criminal negligence requires a finding
that defendant “fail[ed] to be aware of a substantial and
unjustifiable risk” such that the “failure to be aware of
it constitutes a gross deviation from the standard of care
that a reasonable person would observe in the situation.”
ORS 161.085(10). The jury was instructed that, to convict
defendant of resisting arrest, it had to find that defendant
“intentionally” resisted the officers, i.e., that he intention-
ally engaged in “behavior clearly intended to prevent being
taken into custody by overcoming the actions of the arresting
officer[.]” ORS 162.315(2)(c) (emphasis added). Since the jury
found that defendant intentionally engaged in that behav-
ior, there is little likelihood that the jury would not have
also found that defendant failed to be aware that he created
a substantial risk of injury to himself or the deputy when
he pulled his arm forward while Hargis held onto it—in the
middle of a creek with slippery rocks near a waterfall—two
separate times. Because the error in the jury instruction
regarding resisting arrest was harmless, we affirm defen-
dant’s conviction for that charge.
We likewise determine that any error was harmless
as to defendant’s fourth assignment of error. In that assign-
ment, defendant contends that the court plainly erred in
failing to give a concurrence instruction on Count 1, vehicu-
lar fleeing or attempting to elude police,6 relating to the two
incidents of driving—when Parado and Dodds pursued him.
determination, we assume, without deciding, that the applicable culpable mental
state for that element is, as defendant argues and the state does not dispute,
criminal negligence. See State v. Tow, 321 Or App 294, 299, 515 P3d 936 (2022)
(declining to decide which mental state applies); see also Owen, 369 Or at 322-24
(applying a criminal negligence standard for the injury element).
6
ORS 811.540 provides, in part:
“(1) A person commits the crime of fleeing or attempting to elude a police
officer if:
“(a) The person is operating a motor vehicle; and
“(b) A police officer who is in uniform and prominently displaying the
police officer’s badge of office or operating a vehicle appropriately marked
showing it to be an official police vehicle gives a visual or audible signal to
bring the vehicle to a stop, including any signal by hand, voice, emergency
light or siren, and * * *:
12 State v. Dye
Even assuming that the trial court erred in not instructing
the jury on factual concurrence, any error was harmless.
“A trial court’s erroneous failure to give a concur-
rence instruction is not harmless when, given the evidence
and the parties’ theories, jurors could have based their ver-
dicts on different occurrences.” State v. Teagues, 281 Or App
182, 194, 383 P3d 320 (2016) (citations omitted). To deter-
mine whether an error in failing to instruct the jury was
harmless, 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. Ashkins, 357 Or 642,
660-61, 357 P3d 490 (2015) (citations omitted).
Based on the evidence presented at trial, there is
little likelihood that the jury would have found that defen-
dant was not the same person driving in both instances, or
that either instance did not constitute vehicular fleeing or
attempting to elude—i.e., it is unlikely that the jury based
its verdict on different occurrences. Defendant testified and
argued at trial that he was not the driver in either instance
because he had not driven that day, and the law enforce-
ment officers testified as to defendant’s identity. Defendant
also argued that the officers should not be believed as they
were not credible. The jury’s verdict indicates that it did not
believe defendant’s theory of the case. Therefore, any error
in not providing a concurrence instruction was harmless,
and we affirm defendant’s conviction of vehicular fleeing or
attempting to elude police.
Affirmed.
“(A) The person, while still in the vehicle, knowingly flees or attempts to
elude a pursuing police officer[.]”