State v. Tow

Under ORS 162.315(2)(c), “‘Resists’ means the use or threatened use of violence . . . or any other means that creates a substantial risk of physical injury to any person and includes . . . behavior clearly intended to prevent being taken into custody.”

After the Court issued its per curiam decision affirming Defendant’s conviction of resisting arrest, Defendant petitioned for reconsideration. Defendant argued the trial court erred in not instructing the jury that, to convict Defendant of resisting arrest, it must find a culpable state of mind related to creating “a substantial risk of physical injury.” The State argued that Defendant’s behavior was “clearly intended to prevent being taken into custody,” thereby satisfying the statutory element as “per se resistance.” Under ORS 162.315(2)(c), “‘Resists’ means the use or threatened use of violence . . . or any other means that creates a substantial risk of physical injury to any person and includes . . . behavior clearly intended to prevent being taken into custody.” The Court reasoned that precedent requires a “culpable mental state” regarding the elements in a criminal statute. The Court determined the trial court’s failure to instruct the jury to find Defendant had a culpable mental state for causing “substantial risk of physical injury” was a plain error. The Court concluded that the trial court’s error was not harmless when looking at the record as a whole. Former disposition withdrawn; reversed and remanded.