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, following 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 verdict convicting her of second-degree assault without determining 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 harmless. 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 arraignment, 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 consulting 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 constitutional 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 regarding 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 assignment of error, contending that the record is insufficient to 

establish that she substantially appreciated the risks of proceeding to trial without a lawyer and was capable of conducting 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 contention 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 proceed 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) (indicating 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 counsel and that the waiver of counsel was an intentional relinquishment or abandonment of that known right”).

“Whether there has been an intentional relinquishment or abandonment of a known right or privilege 

will depend on the particular circumstances of each case,” 

including the defendant’s “experience” and “mental capacity.” 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 determine 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 determine whether the defendant is aware of their right to counsel 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 intentional relinquishment” of a “known right.” Id. at 134. First, 

defendant stated multiple times that she wanted to represent herself. In addressing defendant’s requests, the court 

engaged with defendant, at separate dates during the proceedings, about the advantages of representation by counsel 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 competence 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 present [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 selfrepresentation when the mental illness impairs the defendant’s ability to stand trial without the assistance of counsel). 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 evidence; 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 denying 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 determine 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, including the parties’ theories of the case with respect to the various 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 “unlawfully 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 evidence that defendant hit W in the back of the head with a 

wooden stick. The court first found that evidence that defendant’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 morning,” was enough to establish the physical injury element. 

Second, the court found that the wooden stick that defendant 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,” constituted a dangerous weapon as it “could potentially cause serious 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 person 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 mental 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 defendant’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.