Complaining When You Don't Get It, Complaining When You Do

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by: Ryan • March 2, 2015 • no comments

As I have written about before, when a defendant is charged with knowingly causing an injury or serious physical injury, State v. Barnes holds that he does not need to know he is causing an injury or a serious injury but rather he must know he of the assaultive nature of his conduct.

But how do we define that? A punch, sure. A push? A push out of the way? Please define assaultive conduct in such a way that doesn't require knowingly causing an injury. Nor can it require recklessly causing an injury, because that's a lesser-offense. Seriously, give it a try. It's not easy.

Last week's opinion in State v English had the COA noting the absence of any clear definition of assaultive behavior.

Barnes does not illuminate what it means to know that one’s conduct is of an “assaultive nature,” because there was no basis for dispute that the conduct of the defendant in Barnes—punching a security officer in the eye—was assaultive in nature. See 329 Or at 329-30. Unlike the conduct in Barnes, defendant’s conduct was not of a classically “assaultive nature”; rather than directly inflicting injury on V, defendant exposed V to the dog, an intervening actor, and the dog inflicted the injury.

We agree with defendant that Jantzi offers some guidance for analyzing this case. The defendant in Jantzi hid in the bushes holding a knife he had used to slash the victim’s tires and, when the victim jumped on top of the defendant, they rolled over in such a way that the victim was stabbed in the abdomen. 56 Or App at 59. The trial judge, who was the factfinder, believed that the defendant did not intend to stab the victim but reasoned that the defendant, nonetheless, “knowingly” caused the injury—as required for charge of second degree assault—because he knew he had a dangerous weapon and that a confrontation was going to occur. Id. at 61. We held that the court’s findings did not permit conviction for a “knowing” assault, because “a person who ‘is aware of and consciously disregards a substantial and unjustifiable risk’ that an injury will occur acts ‘recklessly,’ not ‘knowingly[,]’” as those mental states are defined in ORS 161.085. Id.

So there's no question in a case where the behavior is not of a "classically" assaultive nature (for example, a shaken baby case), you would be entitled to an instruction stating that the defendant must know he is engaged in assaultive behavior. That is an element of the crime and it has been since Barnes.

But if it's an element of the crime, then you are entitled to a definition. Here's a case that I often use to federalize my complaint that an instruction is ambiguous:

The court held that the evidence was sufficient to support the convictions under Jackson v. Virginia. However, based on In re Winship, Sandstrom, and Estelle, the appellate court held that ambiguous jury instructions on accomplice liability, in combination with other factors, unconstitutionally relieved the state of its burden of proof of an element of the crimes with which he was charged. The instructions were, at the very least, ambiguous on the question of whether the inmate could be convicted of murder and attempted murder on a theory of accomplice liability without proof beyond a reasonable doubt that the inmate knew that an accomplice intended to commit murder. The court held that there was a reasonable likelihood that the jury misapplied the ambiguous jury instructions. Relieving the state of its burden of proof on that issue was not harmless error.

Saruasad v. Porter, 479 F.3d 671 (2007)

So ask for an instruction requiring the state to prove your client knowingly engaged in assaultive behavior. And ask for a definition of assaultive behavior. You should draft your own definition of course, with an eye towards the best possible definition for your client. The state or the judge will draft their own. Odds are, you'll find something in their definitions worth objecting to (for example, a definition that would require the state to show less culpability than it would if the crime was charged recklessly).

Do all this, and you'll make some interesting case law.