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by: Ryan Scott • June 25, 2017 • no comments

This is a long blog post, but please read before you go to trial on an assault II based on serious physical injury, an assault I based on knowingly causing serious physical injury to a child, or assault on a public safety officer. It will tell you everything you need to know about why the standard jury instructions for those crimes are wrong.

In State v. Barnes, the Oregon Supreme Court held that a defendant charged with Assault in the Second Degree, based on knowingly causing serious physical injury, did not need to know that he was causing serious physical injury. He only need to know the assaultive nature of his conduct. The logic behind the analysis is this: per statute (ORS 161.085(8)), the mental state "knowingly" does not apply to result elements, but it does apply to conduct elements. "Serious physical injury" is a result element, since it is the result of the defendant's behavior. Thus, a defendant did not need to know the outcome, but he did need to be aware of "the assaultive nature of his conduct," a phrase that is undefined in the criminal code.

This analysis is not insane, but it does come with some problems. First, it does seem at odds with the plain and straightforward meaning of the statute. You'd think "knowingly cause serious physical injury" would be pretty straightforward, but it's not. Also, it doesn't address the applicable mental state for "serious physical injury." Since Assault II is in the criminal code, some mental state must apply to each material element. See, for example, State v. Wier, as well as ORS 161.115(2).

There is also the greater problem presented by ORS 161.115(1), which states: "If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state." That statute seems to hold unambiguously that "knowingly" -- which is the express mental state for assault II -- must apply to serious physical injury.

But again, if we apply "knowingly" to serious physical injury, we would still have the same problem that vexed the Barnes court: knowingly does not apply to result elements.

I'd been encouraging lawyers for years to preserve a challenge to Barnes at the trial level, but two things convinced me to take a different approach. The first was that the Oregon Supreme Court didn't appear interested in revisiting Barnes, as judged by the PFRs which were denied. Secondly, the aforementioned Wier opinion came out, which seemed to present a way to increase the burden on the state to prove guilt, while at the same time not requiring the courts to overrule Barnes.

In Wier, the Court of Appeals decided that the element "the victim did not consent" contained in sexual abuse III, was a circumstance element, and as such, it did not require a knowing mental state, even though the conduct necessary for SA III did require a knowing mental state. But because the Wier court recognized that some mental state must apply to each element of Sex Abuse III (it was in the criminal code, after all), the lowest mental state that could apply to a circumstance would apply, i.e., criminal negligence.

Why couldn't we then use the same logic to apply criminal negligence to the element of "serious physical injury"? That way, some mental state would apply to each element of Assault II, as required by the criminal code.

So for the last couple of years, I've encouraged attorneys going to trial with an Assault II to ask for an instruction that would apply criminal negligence to serious physical injury. The same logic would apply to those theories of Assault I that can be proven with a knowing mental state, as well as assault on a public safety officer.

But there is a flaw in this analysis as well. Wier was resolved in that manner specifically because SA III does not have an express mental state. And because it does not have an express mental state, the analysis is determined by ORS 161.115(1), which permits the resolution that occurred in Wier. Assault II, on the other hand, has an express mental state -- knowingly -- and therefore it is analyzed under ORS 161.115(2), which would not seem to permit the application of different mental states to different elements. Barnes effectively ignored ORS 161.115(2) but we can't fault Barnes for it, if our proposed resolution runs into the same problem.

Last week, during an e-mail exchange with Bruce Tarbox, the issue finally crystalized for me. And it did so in a way that, unlike every other resolution discussed so far, reached a result that didn't require ignoring or violating a statute. And that's because of the analysis in State v. Simonov. I should note that the argument I'm suggesting below is the same argument appellate attorneys have made. It's hardly original to me. Their only mistake -- one that was beyond their control -- was in being premature.

Simonov is a UUV case where the state argued that "use" was conduct, and it required a knowing mental state, but "without consent" was a circumstance and, consistent with the analysis in Wier, the defendant could be found guilty with a criminal negligence mental state as to that element.

The Oregon Supreme Court rejected that analysis, holding that "without consent" was part of the essential character of crime of UUV, and thus it was part of the conduct. As conduct, the lowest applicable mental state was "knowingly." The Simonov court contrasted "without consent" with the dollar value of merchandise in a Theft I. A theft was a theft, whether the dollar value was more than $1000 or not, and the value of the merchandise didn't change the essential character of the crime. (It was this part of Simonov that strongly hints that a criminal negligence mental state would apply to value.)

The key quote from Simonov is this:

As pertinent here, when an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element, and (unless different mental states are specified in the statute defining the offense), the minimum culpable mental state is knowledge.

Applying Simonov to Assault II, you would argue that the injury is part of the essential character of assault, and therefore it is part of the conduct, not a result element. Once "serious physical injury" is part of the conduct, you eliminate the problem that faced Barnes: how can a knowing mental state apply to a result element? Answer: it's not a result element, it's part of the conduct, just like "without consent' is part of the conduct.

That said, the next sentence in Simonov said this:

In contrast, when an element of a Criminal Code offense describes an accessory fact that accompanies the defendant's conduct, it is a circumstance element for which (again, unless different mental states are specified), the minimum culpable mental state is criminal negligence.

I don't think serious physical injury is an accessory fact, and moreover, applying a negligent mental state would run afoul of ORS 161.115(1), but to be on the safe side, I would recommend asking for criminal negligence as a back-up mental state.

In sum, ask for both: an instruction applying "knowingly" to all elements, because the conduct is "caused serious physical injury," or, in the alternative, an instruction applying criminal negligence to serious physical injury. We haven't gotten the OSC interested in overruling Barnes before, but Simonov gives us the ammunition to do so.