Background
Andrew Chadim was convicted by jury of second-degree assault, two counts of attempted fourth-degree assault, and second-degree disorderly conduct arising from an incident outside a Salem 7-Eleven. Chadim grabbed an employee’s arm and attempted to bite her; when a bystander, W, tried to restrain him, Chadim bit her inner forearm for 60 to 90 seconds, biting harder as she struggled to break free. W sustained a wound that became infected, required two courses of antibiotics, remained swollen for three weeks, caused restricted range of motion for a period, and left a one-and-a-half-inch scar with persistent numbness still present at trial three years later. Chadim also attempted to bite an emergency-room technician taking his vitals.
On appeal, Chadim raised eight assignments of error. He argued that the trial court improperly denied his repeated requests to waive counsel and proceed pro se, that the evidence was insufficient to establish “serious physical injury” for the second-degree assault count, and that the prosecutor made improper remarks during closing argument. He also filed a supplemental pro se brief raising additional arguments that the court found insufficiently developed to warrant review.
The case reached the Oregon Court of Appeals after briefing by the Oregon Public Defense Commission on Chadim’s behalf and by the Oregon Attorney General’s office for the state. Judge Jacquot authored the opinion for a panel that also included Presiding Judge Tookey and Judge Kamins.
The Court’s Holding
The Court of Appeals affirmed the conviction in all respects but remanded for resentencing based on Chadim’s fifth assignment of error. On the prosecutorial-misconduct claim, the court held that the statements Chadim objected to were not improper, and the remaining un-objected-to statements did not meet the demanding plain-error standard requiring remarks to be both obviously improper and incurable. On the sufficiency challenge, the court held that W’s protracted infection, extended swelling, scar-tissue contraction limiting hand movement, and three-year-long numbness at the wound site constituted sufficient evidence of “protracted loss or impairment of the function of any bodily organ” — specifically the skin — under ORS 161.015(8), affirming the denial of the motion for judgment of acquittal.
On the self-representation issue, the court rejected Chadim’s first four assignments. His early requests were conditional or equivocal — he wanted to represent himself only if defense counsel refused certain strategic choices — and his in-trial requests were more plausibly attempts to address the jury than genuine invocations of the right to proceed pro se. His disruptive courtroom behavior also supported the trial court’s rulings during those phases. However, on the fifth assignment, the court found error: before sentencing, Chadim submitted a written waiver of counsel and appeared with a proposed legal advisor. The trial court recognized he was attempting to waive counsel but never conducted the required colloquy to assess whether the waiver was intelligent and understanding.
Because the proceeding had moved past the jury phase and the risk of mistrial had passed, the court held that concerns about disruption could no longer justify bypassing the constitutional inquiry. Relying on State v. Glasby, 301 Or App 479 (2019), and State v. Dunn, 318 Or App 744 (2022), the court remanded for resentencing at which Chadim may renew his request to represent himself. The sixth assignment of error was not reached given the disposition on the fifth.
Key Takeaways
- When a defendant submits a written waiver of counsel and the trial court recognizes the request as genuine, the court must conduct a colloquy to determine whether the waiver is intelligent and understanding — even if the defendant has been persistently disruptive throughout the proceedings.
- Human skin qualifies as a “bodily organ” whose functions — infection barrier, tactile sensation, and elasticity — can support a finding of “serious physical injury” under ORS 161.015(8) where a bite wound causes protracted infection, scarring with restricted movement, and lasting numbness.
- Prosecutorial statements during closing argument do not rise to plain error unless they are both obviously improper (susceptible to no permissible interpretation) and incurable, an exacting standard that was not met here.
- A defendant’s equivocal or conditional requests to proceed pro se, or requests plainly aimed at addressing the jury rather than waiving counsel, do not trigger the court’s obligation to conduct a formal Faretta-style inquiry.
Why It Matters
This decision reinforces that Oregon trial courts cannot sidestep the constitutional colloquy on self-representation simply because a defendant has been difficult or disruptive — at least once the jury has been discharged and the disruption risk is materially reduced. Defense practitioners should note that a written waiver of counsel, even paired with inconsistent verbal statements, can be sufficient to obligate the court to conduct the inquiry, and failure to do so will require resentencing.
On the substantive side, the court’s treatment of skin as a “bodily organ” for purposes of Oregon’s serious-physical-injury definition follows State v. Stone and provides concrete guidance on what bite-wound sequelae — infection requiring multiple antibiotic courses, scar contracture, and multi-year sensory nerve deficits — can satisfy the protracted-impairment prong. Prosecutors and defense counsel handling assault cases involving bites or lacerations should take note of the evidentiary markers the court found sufficient.