Solving the Riddle of Barnes and Assault II (serious physical injury)

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by: Ryan • April 13, 2014 • no comments

I have previously written critically of the Barnes decision, which held that in the case of Assault II based on a theory of serious physical injury, the mental state of "knowingly" doesn't apply to "serious physical injury" but does apply to "assaultive conduct".

In support of the Barnes decision, you could argue, quite reasonably, that "knowingly" doesn't apply to results, i.e., serious physical injury, according to ORS 161.085(8).

On the other hand, "knowingly" must apply to something -- it's an element of the crime -- but "assaultive conduct" isn't an element. It's manufactured. And whatever constitutes assaultive conduct -- the opinion doesn't define it -- must by definition include some form of injury -- isn't that what makes it assaultive?

But Barnes is a Supreme Court decision. Who knows when a challenge will get up there, and furthermore, one might suspect that the current make-up of the Supreme Court might find stare decisis -- in this case at least -- controlling.

But there may be a middle-ground. And that would be a special jury instruction that would give some benefit to defendants, while not necessarily overturning Barnes. In fact, it might be quite compatible with Barnes, so that you have a chance of getting the instruction from a judge now.

So "knowingly," by definition, does not apply to results but it does apply to "conduct." Hence, Barnes holds that a defendant guilty of Assault II under this particular theory must know he is engaged in assaultive conduct. So we know what "knowingly" applies to, but the element of "serious physical injury" is still, shall we say, naked. When no explicit mental state applies to a particular element, we have two questions to ask: does any mental state apply to that element and if so, which one?

Applying the first question to the crime of sex abuse in the third degree, in a case called ''State v. Wier, the COA noted the following analysis:

Like the provision defining first-degree sexual abuse, ORS 163.415 is part of the Criminal Code. ORS 161.005. As discussed above, for crimes that are part of the Criminal Code, the state must prove a culpable mental state for any element “concern[ing] the substance or quality of the crime—the harm or evil sought to be prevented,” but not for elements concerning “venue, jurisdiction, statute of limitations, or something similar.” Rainoldi, 236 Or App at 147; see also Blanton, 284 Or at 594.

There is no reason the same logic wouldn't apply to "serious physical injury" in the crime of Assault II. The serious physical injury is certainly the harm sought to be prevented. It is not a "non-material" element. Consequently, some mental state applies.

Wier also helps illuminate which mental state.

First, the fact that “[t]he victim does not consent to the sexual contact” is a circumstance element of the crime. See I Model Penal Code and Commentaries (Official Draft and Revised Comments 1985) § 2.02 comment at 231-32; Tape Recording, Criminal Law Revision Commission, Subcommittee No 1, Dec 18, 1968, Tape 29, Side 1 (statement of Courtney Arthur) (using lack of consent as an example of an attendant circumstance). The culpable mental states of knowledge, recklessness, and criminal negligence all may apply to a circumstance. ORS 161.085(8) - (10). Thus, defendant’s proposed special instruction did not correctly state the elements of third-degree sexual abuse as the offense is defined in ORS 163.41

"Lack of consent" is a circumstance, whereas serious physical injury is a result. But the mental state of "negligence" applies to results just as much as circumstances. Consequently, the logic behind applying negligence to the lack of consent applies just as well to the application of negligence to serious physical injury.

In conclusion, when submitting an assault II to the jury, the elements should be:

The defendant (1) caused serious physical injury, (2) knew he was engaged in assaultive conduct and (3) failed to be aware of a substantial and unjustifiable risk that serious physical injury will occur.

This will require a special jury instruction. It means you'll need to except at the right time if the judge doesn't give it if you want to ensure a great issue for appeal. And it's not of any great use if the potential for serious physical injury was obvious. But in those cases where the serious physical injury was a fluke, a freak accident, this might just give you a defense.