A few easy steps for determining if the mental state applies to a particular element
by: Ryan • April 13, 2014 • no comments
I'm not going to pretend that these steps will answer every question definitively, but as with most things in the law, the trick is asking the right questions. I'm prompted to write about this because of a sentencing later this week, regarding a case I wrote about a few months ago.
The defendant was charged with Robbery I and Assault II. Unlike most M11 robberies, this case didn't involve either a dangerous weapon or the apprehension of a dangerous weapon. Fists only. But the Assault II was based on "serious physical injury." The Rob I was originally charged as taking or attempting to take property, during which defendant "caused or attempted to cause serious physical injury."
Again, two different theories, one charge: caused serious physical injury and attempted to cause serious physical injury.
This raises two questions: what is the mental state for the offense and does that mental state apply to "serious physical injury"?
We know that "attempted to cause serious physical injury" has a mental state of "intent," because that comes straight from the definition of "attempt." But what is the mental state for "causes physical injury"? If you read the statute, it's not clear. It's possible the state will charge it as knowingly, but I submit, we just don't know, if we look just at the statute.
But let's take "attempted to cause serious physical injury" first. We have a mental state of "intent." Does "intent" apply to serious physical injury? That is, to be guilty, must the defendant intend to cause serious physical injury? In the right case, where no weapon is involved, the right answer could provide a significant defense.
To answer that question, we have to figure out what kind of element "serious physical injury" is. Is it a circumstance? Is it conduct? Nope. It's a result.
Once we know the mental state, and we know the kind of element, we have the final question in the analysis:
- Does this mental state [intentionally] apply to this kind of element [result]?
Further, we know the answer is yes, because, if we go to the definition of "intentional", we find:
- ORS 161.085(7): “Intentionally” or “with intent,” when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.
We can also infer the answer is yes because of a case called St v Peacock. (applying intentional mental state to serious physical injury in the charge of Assault in the First degree).
The good news is that the weapon-less defendant has a defense. The more unlikely the serious injury, the more unforeseeable, then the more likely the acquittal of robbery in the first degree.
But this brings us back to "caused serious physical injury." If the mental state is "knowingly," then it may not apply to "serious physical injury" because "knowingly" only applies to "conduct" or "circumstance," not result. See State v. Barnes. But recklessly and negligently both apply to result, so if the mental state isn't clearly "intentionally," then it's almost certainly "negligently," a much easier standard for the state to satisfy.
Ironically, in the case being sentenced this week, the prosecutor struck from the indictment the language "caused" and left only "attempted to cause." This is because she, most likely, wanted to avoid a scenario where the assault II might merge with the robbery I. The problem is, she struck the mental state that arguably would have been much easier to prove and was left with "intentionally," which -- had the judge applied the mental state to serious physical injury -- probably could not have survived MJOA under these facts. But the judge didn't agree with the above analysis, and so there is a great, great issue for appeal.
In sum, the steps to help determine if the mental state applies to a particular element are:
- What is the mental state?
- What kind of element (result, circumstance or conduct) is the element in question?
- Does that mental state apply, per statute, to that kind of element?
- If there is no mental state in the statute, what is the lowest level mental state to apply to that kind of element?
If you want support for this analysis in the case law, the best case to read is State v. Wier.
