State v. Sell

82 September 13, 2023 No. 460

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
BRYAN A. SELL,
aka Bryan Alan Sell,
Defendant-Appellant.
Coos County Circuit Court
21CR06842; A176091

Andrew E. Combs, Judge.
Argued and submitted February 2, 2023.
Meredith Allen, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Affirmed.
Cite as 328 Or App 82 (2023) 83
84 State v. Sell

PAGÁN, J.
Defendant appeals his convictions for assaulting a
public safety officer, ORS 163.208 (Count 1),1 resisting arrest,
ORS 162.315 (Count 2), and interfering with a peace officer,
ORS 162.247 (Count 3). During their deliberations over the
course of a few hours, the jurors sent the trial court a total of
seven notes reflecting their frustrations with each other and
asking questions. In his first assignment of error, defendant
argues that the trial court abused its discretion by denying
his motion for a mistrial based on the notes. However, absent
a clear indication that the jurors could no longer be impar-
tial, the trial court did not abuse its discretion in refusing to
declare a mistrial after only three hours of deliberations. As
a result, we reject defendant’s first assignment of error. In
his other assignments, defendant argues that the trial court
erred by failing to instruct the jury regarding a culpable
mental state for material elements of the crimes charged in
Counts 1 and 2. Although the trial court committed plain
error, we decline to exercise our discretion to correct the
error in the instruction on Count 1, and the error in the
instruction on Count 2 was harmless. We therefore affirm.
I. FACTS
As noted, defendant assigns error to the jury
instructions and to the trial court’s decision not to declare a
mistrial during deliberations. As such, we begin by discuss-
ing the underlying facts as they relate to the culpable men-
tal state of defendant, and we will then turn to the interac-
tions between the court and jury during deliberations.
On February 6, 2021, police officers for the City of
Coos Bay responded to a reported violation of a restrain-
ing order. The officers had three affidavits of probable cause
to arrest defendant for prior violations. When the officers
located defendant, he “took off running.” Officer Rule chased
defendant on foot, while Officer O’Connor got ahead of defen-
dant in a patrol car. Rule yelled at defendant to stop, but he
failed to do so.

1
ORS 163.208 was amended since the conduct at issue here. See Or Laws
2021, ch 489, § 12 (effective Jan 1, 2022). Those amendments do not affect our
analysis, and we refer to the current version of the statute.
Cite as 328 Or App 82 (2023) 85

When the officers confronted defendant, he had his
right hand concealed in his jacket, and the officers were wor-
ried that he had a weapon. Rule and O’Connor simultane-
ously deployed their tasers, but the tasers were not effective
because defendant was wearing thick clothing. O’Connor
deployed pepper spray, after which defendant lay on the
ground.
Defendant concealed his arms under his torso and
refused orders to put his arms behind his back. O’Connor
had to use force to move defendant’s hands, while Rule
kept pressure on defendant to prevent him from standing
up or running away. Eventually, O’Connor managed to
place defendant in handcuffs. Because defendant had been
tasered and pepper sprayed, the officers called for a medical
evaluation. Officer Myers arrived at the scene around the
same time that this was occurring.
When paramedics examined defendant, he com-
plained of back pain, so the officers decided to take defen-
dant to the hospital before transporting him to jail. As
defendant was being escorted to a patrol car by Myers and
O’Connor, defendant began to pull away from the officers,
and he screamed at them. He threatened to spit on the offi-
cers. Defendant refused to sit down in the back of the car.
He was “extremely resistant to getting in the vehicle.” While
officers were attempting to place him inside, he managed to
stand up on the seat of the vehicle, and he yelled to his wife
that he loved her.
The officers pulled defendant to the ground “and got
into another altercation with him.” Defendant was “thrash-
ing, and kicking, and rolling, and screaming at” the offi-
cers. O’Connor focused on getting defendant’s feet secured,
and he kept his body weight on defendant “to keep him
from kicking at us any further.” It took all three officers to
hold defendant on the ground and get him under control.
When defendant was secured in the patrol car, he continued
“thrashing around.” Defendant was “bashing his head into
the Plexiglas and trying to kick out the windows.”
After defendant was secured, Rule told O’Connor
that O’Connor’s head was bleeding. O’Connor did not have
86 State v. Sell

the injury before he struggled with defendant. O’Connor
had a contusion across the right side of his face above his
right eye. The medics cleaned his wound and applied anti-
biotic ointment. O’Connor had a headache for the rest of
the day, he could not sleep on his face, the wound stung in
the shower, and he could not wear a patrol hat. No one saw
defendant land a kick or punch on O’Connor.
Defendant was charged with assaulting a public
safety officer, ORS 163.208; resisting arrest, ORS 162.315;
and interfering with a peace officer, ORS 162.247. At his
jury trial, the jury heard testimony from the three officers
and viewed exhibits, including body camera footage of the
incident. The jury instruction on assault provided that the
state was required to prove that defendant “acted with an
awareness that his conduct was assaultive and would likely
cause physical injury.” The jury instruction on resisting
arrest stated in part that “a person commits the crime of
resisting arrest if the person intentionally resists a person
known by him to be a peace officer in making an arrest.”
The instructions also stated: “Guilty verdicts must be
unanimous, which means that each and every juror must
agree on a guilty verdict. But not-guilty verdicts may be
nonunanimous.”
That brings us to the deliberations. At around
3:00 p.m., after the jury had been deliberating for an hour,
a juror sent a handwritten note to the trial court. It stated:
“So we are stuck on one count. We are 50% - 50% on one, and
unanimous on the other two. Do we have to get 10 for not
guilty or 100% guilty or stay here?” The trial court proposed
responding to the note by stating that “not guilty verdicts do
not have to be unanimous.” The prosecutor agreed. The trial
court suggested telling the jury to continue deliberating but
indicated that it was not otherwise inclined to respond fur-
ther. Defense counsel proposed instructing the jury “that it’s
got to be 12 for a guilty verdict, ten for a not guilty verdict,
and continue deliberating,” and he did not think that there
was “a hung jury.” Defense counsel observed that the jury
had been deliberating for only about an hour, and that it
was “appropriate to encourage them to continue,” but that
he might conclude otherwise if “it keeps going through mul-
tiple rounds.”
Cite as 328 Or App 82 (2023) 87

The trial court was aware of the option of giving a
dynamite instruction,2 but it did not want to push the jury
“too hard.” Thus, the trial judge responded to the jury by
instructing them to continue deliberating. More specifically,
at 3:10 p.m., the trial court responded to the jury by stating,
in writing:
“Dear Jury:
“Guilty verdicts must be unanimous, which means that
each and every juror must agree on a guilty verdict. Not-
guilty verdicts do not have to be unanimous. As such, for
a not guilty verdict, at least 10 jurors must agree on a not-
guilty verdict. If you are divided nine to three, for example,
you do not have a not-guilty verdict. If you are divided six
to six, you do not have a verdict.
“Furthermore, do not tell anyone, including me, how
many of you are voting not guilty or guilty until you have
reached a lawful verdict or have been discharged.
“Please continue deliberating.”
Later, a juror sent a second note. It stated,
“It is not my fault that the rest of the jury cannot decide.
Since this is a one day case, I am only allowed to miss one
shift, which was last night so that I’d be able to be here this
morning. I have to get up for work in 4.5 hours. I will lose
my job if I miss another day. This is taking way too long.”
Without reconvening the parties, at 3:40 p.m., the trial court
told the jury to “[c]ontinue deliberating.”
Two more notes followed. The third one asked, “If
we can’t reach an agreement o[n] count 1 but we do on count
2 [and] 3[,] do we have mistrial on all or just the one count?”
(Underscoring in original.) Five minutes later, there was a
fourth note. It stated,
“(1) Did [defendant] act [with] an awareness that his
conduct was assaultive. Yes/No
“(2) [H]is conduct would cause physical injury[.] Yes/
No

2
A dynamite instruction is designed to “blast loose” a deadlocked jury. State
v. Marsh, 260 Or 416, 419, 490 P2d 491 (1971), cert den, 406 US 974 (1972).
88 State v. Sell

“(3) [H]is [a]ssaultive conduct in fact caused O’Connor’s
physical injury. Yes/No
“Are these the 3 questions for assault? That need to be
answered. Having difficulty with [question] that he actu-
ally caused injury[.]”
The trial court commented to defense counsel and the pros-
ecutor that the jury appeared to be “all tied up” on the first
count. At 4:02 p.m., the trial court responded,
“Dear Jury:
“I urge you to review all of the instructions and remem-
ber to view the instructions as a whole. Please continue
deliberating. You may continue deliberating tonight or you
may come back in the morning to continue deliberating.”
At around 4:45 p.m., the trial court received two
more notes. The fifth note said:
“Your Honor,
“We are having difficulty because of the couple (mar-
ried) refusal to accept compromise (and reason to believe
bias). Myself and others are extremely frustrated.
“Because of the frustration they’ve caused, I don’t know
if I can give a[n] absolute decision. We either need to replace
these jurors, or please remove me from the panel because
my infuriation may affect my decision.
“Thanks for your consideration.
“[Signed]”
(Underscoring in original.) The sixth note asked, “May we
adjourn and [r]eturn in the morning. Thank you.”
After reading the notes, the trial court was reluc-
tant to release the jurors because “I don’t think that we are
[going to] have 12 of them come back here tomorrow.” The
trial court proposed instructing the jury to continue deliber-
ating until 6:00 p.m., and, after that, they would come back
in the morning. As explained by the trial court, “Maybe that
will push the parties to realize that they’re [going to] have
to be sitting in a room together, at least until six o’clock
Cite as 328 Or App 82 (2023) 89

tonight. And so maybe if some of them hate each other so
much, maybe they can reach an agreement, I suppose.”
The prosecutor agreed with the proposal. Defense
counsel was more concerned, especially regarding the fifth
note, which indicated that there were two jurors who were
“refusing to accept compromise,” that the other ten may be
pressuring them, and defense counsel was also concerned
about the person who wrote the note. Based on that fifth
note, defense counsel moved for a mistrial.
The trial court was unwilling to declare a mistrial
after only three hours of deliberations. Instead, the trial
court sent another note to the jury at 4:56 p.m. It stated:
“Dear Jury:
“Continue deliberating. We will adjourn for the day at
6:00 p.m. unless you have reached a verdict before then. In
the event you do not reach a verdict this evening, each of
you will need to return tomorrow at 9:00 a.m. to continue
deliberating.”
Defense counsel did not object “to the phrasing of the note.”
Later, there was a seventh note. It stated, “Did the
officer testify as to the amount of pain? Or if it resulted in
his [in]ability to function? Did that officer work the rest of
the day[?]” The trial court responded by sending the jury a
note at 5:36 p.m. It stated:
“Dear Jury:
“As I stated earlier:
“ ‘At the end of the trial, you will have to make your deci-
sion based on what you recall of the evidence. You will not
have a written transcript to consult. I urge you to pay close
attention to the testimony as it is given. If at any time, you
cannot hear a question or answer, let me know immediately
by raising your hand.’
“Continue deliberating. Do no leave or stop deliberating
until I formally release you.”
Shortly thereafter, the jury returned a verdict, finding
defendant guilty on all three counts. After confirming that
the verdicts were unanimous, the trial court released the
jury. Defendant appeals.
90 State v. Sell

II. ANALYSIS
A. Defendant’s Motion for a Mistrial
We review the denial of a motion for a mistrial for
abuse of discretion. State v. Garrett, 292 Or App 860, 864,
426 P3d 164, rev den, 363 Or 744 (2018). Abuse of discretion
is a “daunting standard of review that gives the trial court’s
decision great deference.” State v. Woodall, 259 Or App 67,
74, 313 P3d 298 (2013), rev den, 354 Or 735 (2014). An abuse
of discretion occurs “only when the court’s ruling is not one
of several legally correct outcomes.” Id. (internal quotation
marks omitted).
In reviewing the trial court’s ruling on a motion
for a mistrial, we consider whether “a defendant’s ability to
obtain a fair trial has been impaired.” State v. Arreola, 250
Or App 496, 500, 281 P3d 634, rev den, 353 Or 103 (2012)
(internal quotation marks omitted). A fair trial is one in
which “the verdict is based on the evidence and not on fac-
tors external to the proof at trial.” State v. Osorno, 264 Or
App 742, 748, 333 P3d 1163 (2014) (internal quotation marks
omitted). When a defendant claims that the jury could not
follow instructions, the defendant must show an “over-
whelming probability” that the jury failed to do so. Garrett,
292 Or App at 868 (internal quotation marks omitted).
Defendant argues that the notes from the jury
“reflected both an overwhelming probability that jurors
were unable to follow the court’s instructions and the coer-
cion of the minority jurors’ conscientiously held opinions.”
Defendant moved for a mistrial after the fifth note, in which
a juror expressed frustration regarding a married couple,
whom the juror viewed as biased and as refusing to accept
compromise. The juror also indicated that her infuriation
may affect her own decision.
However, by that time, the jury had been deliberat-
ing for less than three hours. Declaring a mistrial is “a dras-
tic remedy to be avoided if possible.” Woodall, 259 Or App
at 75 (internal quotation marks omitted). Instead of doing
so, the trial court told the jury to continue deliberating,
but that the court would adjourn at 6:00 p.m. and the jury
would have to return the following day if it had not reached
Cite as 328 Or App 82 (2023) 91

a verdict by then. As explained more fully below, we can-
not conclude that the jurors could no longer be impartial,
and, given that the jury had been deliberating for only three
hours, we cannot say that the trial court abused its discre-
tion when it decided not to declare a mistrial. See State v.
Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (“If the trial
court’s decision was within the range of legally correct dis-
cretionary choices and produced a permissible, legally cor-
rect outcome, the trial court did not abuse its discretion.”).
Defendant claims that he did not receive a fair trial
because the jury was unable to follow the court’s instruc-
tions. Admittedly, the jury was instructed not to “tell any-
one, including me, how many of you are voting not guilty
or guilty until you have reached a lawful verdict or have
been discharged.” Despite that instruction, the first note
indicated that the jury was evenly divided on one count, the
third note stated that the jury could not “reach an agree-
ment” on the first count, and the fifth note suggested that
a married couple on the jury was refusing “to accept com-
promise” and causing other jurors to be “extremely frus-
trated.” (Underscoring in original.) Although those notes
are troubling, they did not mandate declaring a mistrial.
See Garrett, 292 Or App at 867-68 (finding no abuse of dis-
cretion in denial of defendant’s motion for mistrial despite
the jury’s disclosure of its voting posture).
Instead, the record could be read to indicate that
the jury was committed to its task and took its role seri-
ously. For example, the fourth note, which concerned the
elements of the crime of assaulting a public safety officer,
shows that the jury grappled with the question of whether
the state proved those elements beyond a reasonable doubt.
As explained below, what it means to show that a defendant
“acted with an awareness that his conduct was assaultive
and would likely cause physical injury” is not straightfor-
ward, and that issue has prompted recent changes in the
law. See State v. Owen, 369 Or 288, 322, 505 P3d 953 (2022)
(holding that in a prosecution for second-degree assault,
the state, at a minimum, must prove that a defendant was
criminally negligent with respect to the injury element of
the crime); see also State v. McKinney/Shiffer, 369 Or 325,
92 State v. Sell

333-34, 505 P3d 946 (2022) (applying Owen). That the jury
had a difficult time working through that question shows
that it was performing its role, despite frustration regard-
ing the length of the process and some tension among the
jurors. The record does not show that there was an “over-
whelming probability” that the jury was unable to follow the
instructions regarding the charges.
Defendant argues that the fifth note indicates that
“a minority of jurors were being coerced to change their con-
scientiously held opinions, especially in light of the earlier
note expressing impatience with the process and the fear
of losing employment if deliberations continued.” Defendant
contends that some of the jurors may have pressured others,
including the married couple, to change their vote.
Evidently, the jurors had differing initial opinions
about whether the evidence satisfied the elements of the
crime of assault, and, although some jurors expressed
frustration, we might expect a conscientious jury to have
difficulty with whether the state met its burden of proof,
especially in a case like this one, in which no one testified
that they observed defendant landing a kick or a punch on
O’Connor. Although it is unusual for a jury to send seven
notes to the trial court, the jury’s expressions of frustration
regarding its deliberations about a complex issue do not
establish that the verdict was based on factors external to
the proof at trial, or that defendant was otherwise denied
his right to a fair trial. In addition, based on her expressions
of frustration alone, we cannot conclude that the juror who
penned the fifth note decided the case based on factors exter-
nal to the law and the facts. See Pachl v. Zenon, 145 Or App
350, 360 n 1, 929 P2d 1088 (1996), rev den, 325 Or 621 (1997)
(“A fair trial occurs when the verdict is based on the evi-
dence and not on factors external to the proof at trial.”).
Finally, it is not clear whether defendant preserved
a challenge to the trial court’s supplemental notes given in
response to juror questions, but, assuming without deciding
that he did, we determine that the supplemental notes were
not coercive. The trial court did not implore or pressure the
jury to reach a verdict, it did not encourage any jurors to
reconsider their positions, and the trial court said nothing
Cite as 328 Or App 82 (2023) 93

about avoiding the time and expense of a retrial. Cf. State
v. Marsh, 260 Or 416, 436-37, 490 P2d 491 (1971), cert den,
406 US 974 (1972) (“The reference to a retrial if the jury did
not reach a verdict was improper * * *. Also improper was
the statement that ‘it is incumbent upon you to reach a ver-
dict’ * * *.”). Instead, the supplemental notes simply told the
jurors to continue deliberating, to consider the instructions
as a whole, and that they might have to return the follow-
ing day. See State v. Claridy, 29 Or App 435, 440, 563 P2d
1239 (1977) (“The simple request by the court that the jury
continue its deliberations was * * * neither inappropriate nor
coercive.”). We therefore reject defendant’s first assignment
of error.
B. The failure to instruct the jury regarding a culpable men-
tal state for the injury element of the crime of assault of a
public safety officer
In his second assignment, defendant argues that
the trial court 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 injury element of
the crime of assaulting a public safety officer. This case was
tried before that rule was announced in Owen, 369 Or at
322, and defendant did not object to the trial court’s fail-
ure to properly instruct the jury. Accordingly, defendant
requests plain-error review.
The state responds that there was no error, let
alone plain error, because the jury was instructed that the
state had to prove that defendant “knowingly caused phys-
ical injury” to O’Connor, and the jury was told that “know-
ingly caused physical injury,” means that defendant “acted
with an awareness that his conduct was assaultive and
would likely cause physical injury.” According to the state,
that instruction “more than adequately conveyed to the jury
that defendant had to have acted with, at the least, crim-
inal negligence as to the physical injury element. Indeed,
if defendant needed to know that his conduct would likely
cause physical injury, then he must have acted with crimi-
nal negligence.” (Emphasis in original.)
As we explain below, we conclude that the failure
to instruct the jury regarding a culpable mental state was
94 State v. Sell

a plain error, but the state’s argument regarding the spe-
cific instruction provided has more weight when considering
whether to exercise our discretion to correct the error. To
constitute plain error, an error must be one of law, it must be
obvious and not reasonably in dispute, and the error must
be apparent on the record without having to choose among
competing inferences. State v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013). When the trial court makes a plain
error, it is a matter of discretion whether we will correct it.
State v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006).
Here, the jury was not instructed that defendant
had to be at least criminally negligent with respect to the
injury element of the crime.3 That error was one of law, it
is not reasonably in dispute after the Supreme Court’s
decision in Owen, and it appears on the face of the record.
Accordingly, the trial court plainly erred. See State v. Ulery,
366 Or 500, 503, 464 P3d 1123 (2020) (plain-error analysis
depends on “the law at the time of the appellate decision”).
We turn then to whether we should correct the error.
As we recently explained in State v. Horton, 327 Or App
256, 262, ___ P3d ___ (2023), if an error is harmless, then
we have no discretion and must affirm. Although harm-
lessness is often a difficult analysis, it is especially difficult
when considering instructional errors regarding the mental
state associated with elements of a crime because we must
“assess whether the jury might have found that element to
be unproved, had it been instructed on it.” Id. at 263. In
other words, “the issue is not whether a jury could have
found defendant to have the requisite mental state on this
record; rather, it is whether there is some likelihood that
the jury might not have been persuaded that he had the
requisite mental state, had it considered that issue.” State v.
Stone, 324 Or App 688, 695, 527 P3d 800 (2023) (emphases
in original).
Here, like in Horton, 327 Or App at 263-64, we can-
not conclude that the error was harmless. No one testified
3
Criminal negligence “means that a person fails to be aware of a substantial
and unjustifiable risk that the result will occur * * *. 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 situa-
tion.” ORS 161.085(10).
Cite as 328 Or App 82 (2023) 95

that they saw defendant land a kick or a punch on O’Connor,
and defense counsel argued in closing that O’Connor’s injury
may have been involuntarily caused by defendant’s metallic
handcuffs while defendant was being thrown to the ground
by the officers. In addition, the jury’s fourth note during
deliberations shows that they struggled with the elements
of the crime of assault on a public safety officer, and that
they were having “difficulty” determining whether defen-
dant “actually caused injury.” Based on those factors, there
is at least some possibility that the jury might not have been
persuaded that defendant was at least criminally negligent
with respect to the injury element of the crime of assault on
a public safety officer.
Next, we consider whether we should exercise our
discretion to correct defendant’s unpreserved error. Horton,
327 Or App at 264. “Even if an error does not qualify as
harmless, our assessment of where it falls on the spectrum
of likelihood of having affected the verdict can be an import-
ant consideration to the exercise of discretion. The likelihood
that the error affected the outcome goes to its gravity and to
the ends of justice.” Id. (internal quotation marks omitted).
Here, even though there is some likelihood that
the verdict might have been different, based on the specific
instruction provided, the prosecutor’s argument during clos-
ing, and the evidence presented at trial, we conclude that
“it is an extremely low likelihood.” Id. at 266. The specific
jury instruction at issue in this case is somewhat unusual.
It provided that the state was required to prove not only
that defendant “acted with an awareness that his conduct
was assaultive,” but also that he was aware that his con-
duct “would likely cause physical injury.” Furthermore, as
the prosecutor put it during closing arguments, there was
evidence that defendant “was so assaultive [that] it took
three officers to deal with him.” The jury heard testimony
from the officers that defendant was “thrashing, and kick-
ing, and rolling, and screaming at” the officers, and they
also watched body camera footage of the altercation. Based
on that evidence of defendant’s violent conduct and based on
the jury’s finding that defendant was aware that his conduct
would likely cause physical injury, there is an extremely low
96 State v. Sell

likelihood that the jury would not have found that defendant
was at least criminally negligent with respect to the injury
element of the crime. Accordingly, we are not persuaded
that the gravity of the error or the ends of justice warrant
exercising our discretion to correct the state’s plain error.
We therefore affirm defendant’s conviction for assaulting a
public safety officer.
C. The failure to instruct the jury regarding a culpable men-
tal state for the risk-of-injury element of resisting arrest
In a supplemental assignment of error, defendant
argues that the trial court erred when instructing the jury
regarding the crime of resisting arrest. ORS 162.315(1)
provides that “[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.” The statute defines “resist”
as “the use or threatened use of violence, physical force or
any other means that creates 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.” ORS
162.315(2)(c).
In State v. Tow, 321 Or App 294, 298, 515 P3d 936
(2022), we concluded 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 sub-
stantial risk of physical injury’ element in ORS 162.315(2)(c).”
In Tow, which was a case in which there was “contradicting
evidence regarding whether defendant kicked and flailed his
legs when the officers attempted to get him into the police
car, and [in which] there was a dispute about whether or not
some of defendant’s movements were voluntary,” we deter-
mined that the jury instruction error was not harmless.
Id. at 298-99.
The state responds to the supplemental assignment
of error by acknowledging that the trial court plainly erred
under Tow, but the state argues that the error was harm-
less. Based on Tow, we agree with the state that the trial
Cite as 328 Or App 82 (2023) 97

court plainly erred. However, unlike in Tow, the error was
harmless.
Here, there was evidence that defendant was so
resistant that it took three officers to place him under arrest
and get him into the patrol car. Unlike in Tow, there was
no “contradicting evidence” regarding defendant’s conduct;
instead, the evidence shows that defendant was “thrash-
ing, and kicking, and rolling, and screaming at” the offi-
cers. Although defendant argued in closing that O’Connor’s
injury may have been caused by an involuntary movement
of defendant while he was being thrown to the ground by
three officers, there was ample evidence that he intention-
ally resisted the officers by engaging in violent behavior
that posed a substantial risk of physical injury. Indeed, even
after the officers managed to secure defendant in the back
of the patrol car, defendant continued “thrashing around,”
and he was “bashing his head into the Plexiglas and trying
to kick out the windows.”
In addition to the undisputed evidence regarding
defendant’s conduct, when considering Count 1, the jury
found that defendant knew or was aware that his conduct
“would likely cause physical injury.” As a result, if the jury
had been properly instructed regarding the elements of
resisting arrest, then its prior finding necessarily entails
that the jury would also have found that defendant was at
least criminally negligent with respect to whether there was
a substantial risk of physical injury. Because the error in
the jury instruction regarding resisting arrest was harm-
less, we affirm defendant’s conviction for resisting arrest.
Affirmed.