Did Simonov overrule Barnes?
by: Ryan Scott • June 25, 2017 • no comments
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.
