State v. Wehr

704                 December 20, 2023              No. 675

   This is a nonprecedential memorandum opinion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.
                  BRIAN LEE WEHR,
                   Defendant-Appellant.
                Linn County Circuit Court
                   21CR21149; A176420

  David E. Delsman, Judge.
  Submitted April 24, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
Nonprecedential Memo Op: 329 Or App 704 (2023)           705

        HELLMAN, J.
         Defendant appeals from a judgment of conviction
for two counts of harassment constituting domestic violence,
ORS 166.065, and two counts of assault in the fourth degree
constituting domestic violence, ORS 163.160. On appeal, he
raises three assignments of error. In the first and second, he
argues that the trial court erred when it failed to instruct
the jury that it must find that he acted with criminal negli-
gence with respect to the physical injury element of assault
in the fourth degree. In the third, he argues that the trial
court erred when it admitted hearsay statements in a 9-1-1
call because the state failed to prove that the declarant was
unavailable. For the following reasons, we affirm.
         We briefly recount the facts that are relevant to our
decision. Defendant’s convictions were based upon an inci-
dent in which defendant was involved in a physical alterca-
tion with his 11-year-old daughter, L, and her older cousin,
B. L had gone to B’s house for the afternoon. Defendant
found L at the house and was enraged that she was there.
Defendant began angrily yelling obscenities at L to get in
his truck. He also spit on both L and B and pushed B into
the bathroom. B called 9-1-1 to report defendant’s behavior
and to ask for law enforcement assistance. After the call, B
and L tried to leave in B’s car. While L was crawling into
the car, defendant grabbed her leg and pulled on it “really
hard” so that it “really hurt.” Defendant then punched the
driver’s side window and broke it, and the glass shattered
onto B’s face. Defendant continued to angrily yell obsceni-
ties throughout the interaction with L and B.
         L and B were eventually able to leave, and B drove
them to the fire department, where law enforcement offi-
cers responded. An investigating officer saw L limping and
observed cuts on her right shin and a bruise on her foot. The
officer also observed that B had multiple cuts on her face
and arms from the shattered window glass, a bruised wrist,
and an injured finger that she could not move without pain.
        In his first and second assignments of error, defen-
dant argues that the trial court erred when it did not
instruct the jury that it had to find that he acted with at
706                                            State v. Wehr

least a criminally negligent mental state with regard to the
physical injury element of his fourth-degree assault charges.
Defendant concedes that his claim is unpreserved, and he
asks us to review for plain error.
         We agree with defendant that under the current
state of the law it was plain error for the trial court not to
instruct the jury on a culpable mental state for the result
element of fourth-degree assault. See State v. Owen, 369 Or
288, 322, 505 P3d 953 (2022) (explaining that absent leg-
islative intent to the contrary “the mental states of inten-
tional, reckless, and criminal negligence will apply to result
elements”); State v. McKinney/Schiffer, 369 Or 325, 327, 505
P3d 946 (2022) (holding that Owen errors are “plain error”
for purposes of preservation). However, we have no discre-
tion to correct the error because the instructional error is
harmless on these facts. See State v. Horton, 327 Or App
256, 262, 535 P3d 338 (2023) (“We cannot reverse a judg-
ment based on a harmless error, so if the error was truly
‘harmless,’ then we have no discretion and must affirm.”).
         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). To determine
whether an instructional error is harmless in the context
of the culpable mental state, the question “is not whether a
jury could have found defendant to have the requisite men-
tal 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). In assessing harmlessness,
“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 323-24 (internal quota-
tion marks omitted).
         The jury convicted defendant of fourth-degree
assault after hearing evidence that defendant pulled on L’s
leg so hard that it “really hurt” and caused her to limp, as
well as evidence that, after defendant punched a car window
Nonprecedential Memo Op: 329 Or App 704 (2023)                              707

so hard that it shattered, B had multiple cuts on her face
and arms as well as a bruised wrist and an injured finger
that she could not move without pain. A defendant acts with
criminal negligence when the defendant “fails to be aware
of a substantial and unjustifiable risk” such that “the fail-
ure 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 found that defen-
dant’s conduct—pulling an 11-year-old’s leg to prevent her
from crawling into a car to escape him and punching a car
window so hard that it shattered while in a state of rage—
was, at a minimum, reckless.1 We conclude that there is lit-
tle likelihood that the jury might not have been persuaded
that he was at least criminally negligent with respect to the
fact that B and L could suffer physical injury2 as a result of
those actions, given that defendant did not offer a defense
theory for his intent in pulling L’s leg and the jury rejected
his theory that he was merely trying to get B’s attention
when he punched the window.
          In his third assignment of error, defendant argues
that the trial court erred when it admitted B’s 9-1-1 call
because the state failed to prove that B was unavailable. On
appeal, defendant bases his argument on Article I, section
11, of the Oregon Constitution. However, defendant never
raised an Article I, section 11, challenge to the trial court.
Instead, defendant’s challenge was based on the Sixth
Amendment to the United States Constitution as interpreted
in Crawford v. Washington, 541 US 36, 124 S Ct 1354, 158
L Ed 2d 177 (2004), and the resulting arguments focused on
a disagreement as to whether the statements were testimo-
nial or not.
          We disagree with defendant’s argument that
raising a Sixth Amendment confrontation challenge was
    1
      Defendant was charged with “unlawfully and recklessly caus[ing] physical
injury” to B (Count 2) and with “unlawfully and intentionally, knowingly and/or
recklessly caus[ing] physical injury” to L (Count 6). A defendant acts recklessly
when the defendant “is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur” and the risk is “of such nature and
degree that disregard thereof constitutes a gross deviation from the standard of
care that a reasonable person would observe in the situation.” ORS 161.085(9).
    2
      “Physical injury” is an “impairment of physical condition or substantial
pain.” ORS 161.015(7).
708                                              State v. Wehr

sufficient to also preserve an Article I, section 11, challenge,
because the legal analysis for each of those rights is com-
pletely different. Claims under Article I, section 11, are ana-
lyzed under the test from Ohio v. Roberts, 448 US 56, 100
S Ct 2531, 65 L Ed 2d 597 (1980), which was explicitly over-
ruled in Crawford. State v. Belden, 369 Or 1, 9-10, 499 P3d
783 (2021). Thus, making a “Crawford” claim, as defendant
did here, would in no way alert the trial court that he was
also seeking to invoke Article I, section 11. We are similarly
unpersuaded that the fact that we look to our state constitu-
tion first when presented with a claim of constitutional error
cures any failure to raise the state constitutional issue in
the trial court. Moreover, the error that defendant identifies
on appeal—the lack of proof of unavailability—was never
discussed below, either in relation to the Sixth Amendment
claim he did raise or as part of an Article I, section 11, claim.
Defendant’s claim is thus unpreserved.
        Defendant does not ask us to review for plain error.
Even if he had, and even if we found the error to be plain,
we would not exercise our discretion to correct it, given
that doing so would undermine the purposes for preserva-
tion, most notably the opportunity to develop the record on
a fact-based inquiry. See State v. Dilallo, 367 Or 340, 347,
478 P3d 509 (2020) (“The fact that the opposing party may
need to take additional steps to develop the record in order
to address an assignment of error is one of the reasons that
a timely objection is required.”).
         Affirmed.