the prosecutor was clever. Was the defense attorney cleverer?
by: Ryan • January 12, 2014 • no comments
This post should be of special interest to attorneys who handle M11 robberies and assaults.
The facts have been changed since the case is still in the Multnomah County circuit court.
Defendant is walking down the street when he decides to rob another pedestrian. Defendant is unarmed but he punches the victim hard enough to break his jaw. He then steals his watch.
The defendant is charged with Rob I (based on a theory of "caused or attempted to cause serious physical injury") and Assault II ("knowingly causing serious physical injury.") Assume "serious physical injury" isn't in doubt.
On the eve of trial, the prosecutor asks the court to delete the words "caused or" in the Rob I. He's not getting rid of the Rob I, just those two words. And it's not because there's any doubt that the defendant caused serious physical injury. Rather, when charged in its entirety, Rob I would merge with the Assault II, since all the elements of assault II (serious physical injury) would have been contained in this theory of Rob I (caused serious physical injury). So the state, by getting rid of that language, gets rid of any merger issue, as long as it can still prove "attempted to cause serious physical injury."
Like I said, clever.
But set that aside for a moment. We'll come back to it. I want to discuss a case called St v. Wier, which came out just a couple of weeks ago. In that case, the COA reversed the sex abuse I count because the trial court refused to give a jury instruction that would have applied the "knowing" mental state to the element of forcible compulsion. But in the same opinion, the COA upheld the sex abuse III count even though the trial court refused to give a jury instruction applying the "knowing" mental state of to the element of "victim did not consent."
What gives? Well, "forcible compulsion" constitutes defendant's conduct. Only two mental states apply to "conduct," knowingly and intentionally. So knowingly applies to forcible compulsion and the judge erred in not giving the instruction.
As for sex abuse III, the element of "the victim not consenting" is a circumstance, and since the mental states of reckless or negligence could have applied, because they both apply to "circumstance", there was no requirement -- despite being charged as "knowingly" -- that the state had to prove the defendant knew the victim didn't consent. The state could have proved the defendant negligently was unaware she didn't consent, and the defendant did not ask for that instruction.
But wait! you say. The sex abuse I was charged as knowingly, just like the sex abuse III, but there's no statutory mental state for that crime either. Why couldn't reckless or negligent mental states apply to sex abuse I as well? In other words, why didn't the defendant lose the argument for Sex Abuse I for the same reason he lost the argument on Sex Abuse III? Because "forcible compulsion" is conduct, and the only two mental states that apply to conduct are "knowingly" and "intentionally." The victim not consenting is circumstance, and the three mental states that apply to circumstance are "knowing, reckless and negligence." If a mental state applies to "forcible compulsion" it has to be a mental state that applies to "conduct," i.e., knowingly or intentionally. "Not consenting" is a circumstance and therefore it has to be a mental state that applies to circumstance, neglect, reckless or knowing.
Ergo, the question lawyers and judges need to ask in a similar situation is not merely whether a mental state applies to a particular element, but whether a particular mental state applies to that type of element (whether it's conduct, circumstance or outcome).
Let's go back to the above scenario. The state dismissed "caused a serious physical injury" and let stand "attempted to cause a serious physical injury" in order to defeat merger. But serious physical injury is an "outcome." As we know from St v Barnes, "knowingly" doesn't apply to the element of "serious physical injury" because "knowingly" -- per statute -- doesn't apply to outcomes. Therefore, as long as the language "caused serious physical injury" went to the jury, they could find the defendant knowingly engaged in the conduct but did not need to know his punch would do some serious harm, like break the victim's jaw.
But that language didn't go the jury. Instead, the state went with "attempted to cause serious physical injury." And "attempt" by statutory definition is an intent crime. Does the mental state of "intent" apply to outcomes? Yes, per statute. Does that mean intentionally applies to "serious physical injury"? Yes, per State v. Peacock. So when the case went to the jury, the prosecutor -- after his clever trick to defeat merger -- should have been required to prove that the defendant intended to cause serious physical injury. And the clever defense attorney asked for that instruction. But, alas, the judge -- who has been reversed on a similar issue in a very famous case -- refused.
What does this mean? It means the prosecutor -- to defeat merger -- probably gave up an A felony with a 90 minimum, and will be left with a 70 month minimum sentence when this case comes back from the Court of Appeals.
By the way, the trial occurred before Wier came out. So Wier only confirms the defense counsel was right, but she already knew that, given she had pieced together the case law better than anyone else in the courtroom. So yes, the prosecutor was clever. But the defense attorney was cleverer.
