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The Assaultive Nature of his Conduct: Why the OSC Should Reconsider Barnes

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by: Ryan • October 3, 2011 • no comments

I have previously discussed State v. Barnes, a case which holds that, in an assault in the second degree based on an allegation of serious physical injury, the defendant does not need to know - much less intend - that he will cause serious physical injury. Therefore, a slap or a punch that unexpectedly causes serious physical injury - a dislocated jaw, for example - subjects the defendant to a measure 11 sentence, even if his behavior is far less onerous than you might see in a misdemeanor assault case. In contrast, in assault in the first degree, a defendant must intend to cause serious physical injury.

In that aforementioned post, I suggested Barnes might be worth revisiting, since the law on mens rea has developed significantly since the opinion was issued, and Barnes itself is not without problems. Not the least of those problems is that the court recognized that the mental state of "knowingly" - if it doesn't apply to "serious physical injury," must apply to something, so the Court created the element of "the assaultive nature of [the defendant's] conduct." Yes, the court created a new element out of nowhere, which is undefined and which is subject to a great deal of ambiguity. I understand throwing a punch would be recognized as conduct of an assaultive nature. But what about a push or a slap? Is any physically aggressive conduct assaultive in nature? Assault in Oregon requires an injury, so wouldn't conduct that was of an assaultive nature be conduct that causes an injury? So, the defendant must know he's causing an injury but not a serious physical injury? But once we've crossed that rubicon, once the defendant must know he's causing an injury, what legal principal would keep it from applying to a "serious" injury?

With that in mind, I have attached a special jury instruction and memo that is at odds with Barnes, but that's a first and necessary step to getting the OSC to take review. Assuming a judge feels bound by Barnes, I think a smart prosecutor might be hesitant to fight tooth and nail on a case that might get Barnes reversed. Consequently, filing it in advance of trial may get you a better deal.