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Assault Mental States: The Contradictions

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by: Ryan • January 7, 2011 • no comments

In Assault II and Dangerous Weapons on the mental state which would apply to the element of "dangerous weapon," I had offhandedly mentioned that there was a case that held that the mental state of "knowingly" didn't apply to "serious physical injury" (a result) but that the analysis of the case supported the idea that it would apply to whether or not a weapon was in fact dangerous (combination of circumstance and conduct). That case is State v. Barnes, 329 Ore. 327 (1999)

However, if the defendant is charged with assault in the first degree, based on intentionally causing serious physical injury to another, the mental state of "intentionally" does apply to the serious physical injury. State v. Peacock, 75 Or App 217, 706 P2d 982 (1985). In other words, an assault I defendant must intend serious physical injury, and this is consistent with the definition of intent which is result-oriented.

This contradiction probably seems odd, but both opinions are thoughtful and logical, and they appear to be following the lead of the legislature, which, as I mentioned, defines intentionally in a way that applies to result, but only applies knowingly to conduct and circumstances. ORS 161.085(7) and (8). (Those definitions are not binding, if the language of the criminal statute at issue requires a different result. See Barnes.)

I think Barnes is worth revisiting. Given it's an Oregon Supreme Court case, it would take a dedicated appellate attorney to pursue it, but the opinion is ripe to be Pluto'd.

Generally speaking, a case might be worth revisiting when it is tied up in a legal principle that - entirely separately - has undergone a change since the case was published. So, for example, Barnes is intertwined with two principles: (1) what elements do mental states apply to? and (2) when a mental state, such as reckless, applies to a serious physical injury, does it require that the defendant is recklessly aware of a risk of injury or that he is recklessly aware of a risk of serious physical injury? Both of those principles have undergone some significant changes since Barnes was published in 1999. So much so, in fact, that essential standard jury instructions of the preceding decades had to be re-written.

Barnes does say that "knowingly," while it doesn't apply to "knowing" that a serious physical injury would occur, does require that the defendant know of the "assaultive nature of his conduct." That's a phrase that seems logical at first but makes less sense the more you think about it. How do we determine if conduct is of an "assaultive" nature? If you punch somebody, sure, I'll give you that one. But what if you push someone, he falls off a curb and breaks his ankle? "Pushing" is aggressive, schoolyard behavior but it doesn't usually result in injury. Still, the defendant knew he was pushing the person. Does knowing of "assaultive nature" of conduct require a defendant to know his actions are going to cause an injury? But the point of Barnes is that "knowingly" doesn't apply to the result/injury. Does "assaultive nature" mean behavior that is likely to cause an injury? Same problem, maybe. At what point does assault in the second degree become easier to prove than assault in the fourth degree, which at least requires the defendant to be aware of a substantial risk of injury. Remember those fights from high school where no punches were thrown but the two guys were grappling with each other? Is that conduct of "an assaultive nature"? What if the wrestling badly wrenches somebody's back? Or a Jethro Gibbs-like smack to the back of someone's head? Admittedly, no injury would likely follow that last example, but I'm just trying to get at what it means for behavior to be of an "assaultive nature" while at the same time not applying any mental state to the injury that results.

Another problem is that assault in the second degree can be defined as "(a) Intentionally or knowingly causes serious physical injury to another." The implication of Barnes is that "intentionally" (which is result-orient)ed would apply to the serious physical injury but "knowingly" does not.

But if you look at the lead case on the application of mental states to material elements, State v Rutley, the question that needs to be asked is, "to which elements does the mental state apply?" (ORS 161.095(2) requires that a defendant must have had a culpable mental state "'with respect to each material element of the offense that necessarily requires a culpable mental state.'") An element that "necessarily requires a mental state" shouldn't change just because there are alternative culpable mental states approved by the legislature.

I hadn't actually started this essay intending to spend this much time on why Barnes might be subject to a challenge. What I wanted to focus on, instead, was the importance of reading the indictment closely and to develop the theory of your case, in part, based on the mental state that has been alleged. In this case, "intentionally" is not simply a slightly tougher mental state for the state to prove than "knowingly." It actually requires the state to prove dramatically different things.

In my next essay, I'll talk about the implications of this difference in a case where an accomplice, who must have an intentional mental state as a matter of law, is accused of assisting in a crime that only requires of the principal a knowing mental state.