18 February 22, 2024 No. 108
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
RHONDA LEE NIGHTINGALE,
Defendant-Appellant.
Coos County Circuit Court
21CR41245; A177435
Andrew E. Combs, Judge.
Submitted April 24, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
.
Cite as 331 Or App 18 (2024) 19
ORTEGA, P. J.
Defendant appeals her judgment of conviction, fol-
lowing a bench trial, for second-degree assault, ORS 163.175,
unlawful use of a weapon, ORS 166.220, and recklessly
endangering another person, ORS 163.195. She asserts two
assignments of error. First, she argues that the trial court
erred in permitting her to proceed without counsel. Second,
she contends that the trial court erred in entering a ver-
dict convicting her of second-degree assault without deter-
mining whether she was criminally negligent with respect
to the physical-injury element of the offense. We conclude
that defendant validly waived her right to counsel and that
nothing in the record indicates that she lacked capacity to
represent herself, so the trial court did not err in permitting
her to proceed without counsel. We further conclude that
any error as to the court’s application of the mental-state
standard for the second-degree assault charge was harm-
less. Accordingly, we affirm the trial court’s judgment.
The charges here were based on allegations that
defendant hit W in the back of the head with a wooden stick
that appeared to be a table leg; as to second-degree assault,
the state alleged that by taking those actions, defendant
“unlawfully and knowingly cause[d] physical injury to [W]
by means of a dangerous weapon.”1
At multiple pretrial hearings—including arraign-
ment, a hearing on defense counsel’s motion to withdraw,
a change of plea hearing, and a trial readiness hearing—
defendant asserted her right to waive counsel. After consult-
ing with defendant and her counsel, and advising defendant
of the risks of self-representation, the trial court accepted
her waiver of counsel and allowed her to represent herself.
At the beginning of defendant’s trial, the court stated, “[Y]ou
have waived your right to counsel” and “I want to give you
a second chance to consider whether or not getting counsel
makes sense for you or not.” The court continued:
“[Y]ou understand that with respect to Count 1 here, on
the [second-degree] [a]ssault * * *, if you were to be found
1
“A person commits the crime of assault in the second degree if the person
* * * [i]ntentionally or knowingly causes physical injury to another by means of a
deadly or dangerous weapon,” among other conduct. ORS 163.175(1)(b).
20 State v. Nightingale
responsible, that there is a minimum penalty here of 70
months in prison. Which is a significant time in prison. As
* * * you are aware.
“And so, * * * I wanted to go through some things here
with you before we go too much further * * * just to make
sure that you understand that you do have the constitu-
tional right to have a lawyer appointed for you, free of
charge, by the State. Who could sit there and ask questions
and be able to understand how the process of the [c]ourt
works.
“And so, do you understand that, ma’am?”
Defendant replied, “I understand all that, sir. I’ve
been to court a lot of times. And I’ve been to prison five times.
The first time I went to prison was in 1985. I’m well aware
of the law.” Defendant continued to represent herself and
also waived her right to a jury trial. She refused to make
opening and closing arguments, but she cross-examined
the state’s witnesses, including W and the police officer who
investigated the incident.
The court ultimately convicted defendant of all
counts. The court concluded that the state’s evidence was
sufficient to establish the assault elements of physical
injury and dangerous weapon, but did not expressly address
defendant’s mental state in rendering its decision regard-
ing assault. It did address defendant’s mental state when
assessing the charge of recklessly endangering another
person, which arose from the same conduct at issue. As to
that charge, the court concluded that defendant “recklessly
create[d] a substantial risk of serious physical injury * * *
hit[ting] [W] in the back of the head with [the wooden stick]
for all intents and purposes.”
We begin by addressing defendant’s first assign-
ment of error, contending that the record is insufficient to
establish that she substantially appreciated the risks of pro-
ceeding to trial without a lawyer and was capable of con-
ducting a trial without assistance of counsel. She argues
that the record suggests that she suffered from a mental
illness and that the court should have conducted an inquiry
into her capacity to act as her own lawyer before allowing
her to do so. Defendant’s argument addresses the adequacy
Cite as 331 Or App 18 (2024) 21
of her waiver of counsel after the court granted counsel’s
motion to withdraw, but is largely focused on her conten-
tion that the court erred in allowing her to represent herself
despite signs that mental illness prevented her from being
capable of doing so. We address the state of the record as to
both issues and conclude that the court did not err.
We review for legal error a trial court’s decision
allowing a criminal defendant to waive counsel and pro-
ceed pro se where the decision, as here, “turns on the court’s
legal conclusions as to the scope of the right[s].” State v.
Hightower, 361 Or 412, 421, 393 P3d 224 (2017); see also
State v. Meyrick, 313 Or 125, 134, 831 P2d 666 (1992) (indi-
cating that in assessing a defendant’s waiver of the right to
counsel, we should assess whether “the record as a whole
shows that the defendant knew of his or her right to coun-
sel and that the waiver of counsel was an intentional relin-
quishment or abandonment of that known right”).
“Whether there has been an intentional relin-
quishment or abandonment of a known right or privilege
will depend on the particular circumstances of each case,”
including the defendant’s “experience” and “mental capac-
ity.” Id. at 132. In making that assessment, a “trial court
should focus on what the defendant knows and understands.”
Id. (emphasis in original); see also State v. Reynolds, 224
Or App 411, 418, 198 P3d 432 (2008), rev den, 346 Or 158
(2009) (“To satisfy the ‘known right’ legal component of the
standard discussed in Meyrick, the trial court must deter-
mine not only that the defendant is aware of the right to
counsel but also that the defendant understands the risks
inherent in self-representation.”). A trial court may deter-
mine whether the defendant is aware of their right to coun-
sel and understands the risks associated with waiving that
right by making a colloquy in which the judge explains the
risks of self-representation to the defendant. Meyrick, 313
Or at 133 (“The more relevant information that a trial court
provides to a defendant about the right to counsel and about
the dangers and disadvantages of self-representation, the
more likely it will be that a defendant’s decision to waive
counsel is an intentional relinquishment or abandonment of
a known right * * * and that the record will so demonstrate.”).
22 State v. Nightingale
Here, assessing “the record as a whole” under
Meyrick, we conclude that defendant’s waiver was “an inten-
tional relinquishment” of a “known right.” Id. at 134. First,
defendant stated multiple times that she wanted to repre-
sent herself. In addressing defendant’s requests, the court
engaged with defendant, at separate dates during the pro-
ceedings, about the advantages of representation by coun-
sel and the risks of self-representation. Defendant’s replies
during the court’s colloquies and her overall demeanor
during the proceedings evince no indication that defendant
lacked mental capacity to the point of impairing her com-
petence to waive her right to counsel. Further, in addition
to replying affirmatively every time the court asked if she
wanted to represent herself, defendant confirmed that, in
making that decision, she was not “under the influence of
any illegal drugs, medications or alcohol.” The record does
not support that she lacked capacity or that she was not
aware of her right to counsel and of the risks inherent in
self-representation when she waived that right. The trial
court, thus, did not err in accepting defendant’s waiver of
counsel.
Second, regarding defendant’s argument that she
lacked capacity to represent herself, defendant specifically
contends that she made direct statements during the trial
that she was mentally ill and that those statements should
have prompted the court to prevent her from proceeding to
trial. Oregon courts “considering a mentally ill defendant’s
request to proceed without counsel may take into account
whether, as a result of severe mental illness, the defendant
lacks the ability ‘to carry out the basic tasks needed to pres-
ent [one’s] own defense without the help of counsel,’ and may
deny the request if the answer to that question is yes.” State
v. Hayne, 293 Or App 351, 354, 427 P3d 201 (2018), rev den,
364 Or 294 (2019) (quoting Indiana v. Edwards, 554 US
164, 175-76, 178, 128 S Ct 2379, 171 L Ed 2d 345 (2008)).
We will review that determination for abuse of discretion.
Hayne, 293 Or at 366 (holding that a trial court has the
discretion to deny a mentally ill defendant’s request for self-
representation when the mental illness impairs the defen-
dant’s ability to stand trial without the assistance of coun-
sel). Defendant, however, offers no authority, and we are
Cite as 331 Or App 18 (2024) 23
aware of none, that indicates that the court was required to
inquire beyond her statement—which occurred while trial
was already underway—before allowing her to continue to
proceed without counsel.
Here, defendant points to only one statement—“I’m
a mental patient”—which she asserted during the trial, in
the context of explaining that it was “very difficult” for her to
represent herself and requesting to “end for the day.” Thus,
the only reference to mental illness occurred after the trial
court’s decision to grant defendant’s request to represent
herself. It is possible that defendant suffered from a mental
illness, but the record contains no indication of confusion
or communication problems that impaired her capacity for
self-representation. Id. (indicating that mental illness is a
ground to deny a defendant’s request for self-representation
where “the mental illness impairs the defendant’s ability
to stand trial without the assistance of counsel”). In fact,
defendant was able to (a) articulate the reasons she wanted
to fire her counsel; (b) express her preferences concerning
the state’s plea offer and a trial to the court rather than to
a jury; (c) articulate challenges to the accuracy of the evi-
dence; and (d) cross-examine witnesses. The record does not
establish that the trial court erred in allowing defendant to
proceed without counsel. Id. at 365 (a trial court need “not
routinely inquire into the mental competence of a defendant
seeking self-representation” unless “it is considering deny-
ing self-representation due to doubts about the defendant’s
mental competence”).
We turn to defendant’s second assignment of error,
regarding the trial court’s ruling as to second-degree
assault. She argues that the court plainly erred by failing
determine that she acted with at least criminal negligence
with respect to the physical injury element of that offense.
Defendant concedes that her claim is unpreserved and asks
us to review for plain error under ORAP 5.45(1) (authorizing
us to exercise discretion to consider unpreserved errors that
are plain).
We need not resolve the question of whether the
court committed a plain error because, in any event, any
error was harmless beyond a reasonable doubt on the facts
24 State v. Nightingale
of this record. See State v. Horton, 327 Or App 256, 262, 535
P3d 338 (2023) (“We cannot reverse a judgment based on a
harmless error, so if the error was truly ‘harmless,’ then we
have no discretion and must affirm” as to that challenge);
see also State v. Perkins, 325 Or App 624, 529 P3d 999 (2023)
(establishing the beyond-a-reasonable-doubt standard).
An “error is harmless if there is little likelihood
that the error affected the verdict or substantially affected
the defendant’s rights.” State v. Garcia, 284 Or App 357, 363,
392 P3d 815, rev den, 361 Or 645 (2017). Generally, to deter-
mine whether an instructional error was harmless in the
context of the culpable mental state, we review the question
of “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) (emphasis in original). Likewise, “in
a bench trial, we * * * review whether the trial court’s legal
error regarding an element of the offense that the state had
to prove may have affected the outcome of the case.” State
v. McKinney/Shiffer, 369 Or 325, 335, 505 P3d 946 (2022).
In doing that, “we consider the instructions as a whole and
in the context of the evidence and record at trial, includ-
ing the parties’ theories of the case with respect to the var-
ious charges and defenses at issue.” State v. Owen, 369 Or
288, 323-24, 505 P3d 953 (2022) (internal quotation marks
omitted).
Here, the state’s theory was that defendant “unlaw-
fully and knowingly cause[d] physical injury to [W] by means
of a dangerous weapon.” See ORS 163.175(1)(b) (stating that
such conduct constitutes second-degree assault); see also
ORS 161.015(1) (defining “dangerous weapon”). The trial
court convicted defendant based on crediting the state’s evi-
dence that defendant hit W in the back of the head with a
wooden stick. The court first found that evidence that defen-
dant’s conduct caused W a contusion that was at minimum a
“half inch” and “the size of a small egg,” and that it caused W
pain and “trouble waking up” at least until “the next morn-
ing,” was enough to establish the physical injury element.
Second, the court found that the wooden stick that defen-
dant used, which was about “three feet long,” had about a
Cite as 331 Or App 18 (2024) 25
“three-inch” diameter, and “look[ed] like a table leg,” consti-
tuted a dangerous weapon as it “could potentially cause seri-
ous physical injury.” Moreover, when assessing defendant’s
charge of recklessly endangering another person, which
arose from the same conduct at issue, the court concluded
that defendant “recklessly create[d] a substantial risk of
serious physical injury * * * hit[ting] [W] in the back of the
head with [the wooden stick] for all intents and purposes.”
Given those findings, there is little likelihood that the court
would not have found that defendant’s conduct was at least
criminally negligent with respect to the fact that it would
cause physical injury.2
“ ‘Criminal negligence’ * * * means that a person fails
to be aware of a substantial and unjustifiable risk that [a]
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 per-
son would observe in the situation.”
ORS 161.085(10); see also State v. Shedrick, 370 Or 255, 270-
71, 518 P3d 559 (2022) (a criminal negligence culpable men-
tal state may also be proved by knowledge or recklessness).
Based on the court’s findings described above—including
that defendant acted recklessly with respect to the risk of
physical injury when hitting W in the back of W’s head with
a dangerous weapon—there is little likelihood that the court
would not have been persuaded that defendant failed to be
aware that her conduct created a risk of physical injury to
W. Likewise, there is little likelihood that the court would
not have found that defendant’s failure to be aware of the
risk created by her conduct constituted the type of deviation
described in ORS 161.085(10). Accordingly, we reject defen-
dant’s second assignment of error.
Affirmed.
2
We observe that the court did not expressly address whether defendant
acted “knowingly.” Defendant, however, does not raise that issue on appeal, and
so we need not address it.