State v. Barnes
| Decision Date | 17 September 1997 |
| Citation | 945 P.2d 627,150 Or.App. 128 |
| Parties | STATE of Oregon, Respondent, v. Edward Forrest BARNES, Appellant. 95-1165; CA A91415. |
| Court | Oregon Court of Appeals |
Kenneth A. Morrow, Lake Oswego, argued the cause for appellant. With him on the brief was Morrow, Monks & Sharp, P.C.
David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Before DEITS, C.J., and De MUNIZ and HASELTON, JJ.
De MUNIZ, Judge.
Defendant appeals his convictions following a trial to a jury. We affirm his conviction for resisting arrest, ORS 162.315, and reverse and remand his conviction for assault in the second degree. ORS 163.175.
The charges arose following an incident at the Newport Seafood and Wine Festival in February 1994. Defendant and his wife Debra were at the marina building with another couple, Dean and Dana Chase. Defendant had had four or five glasses of wine at the festival when, around 6:00 p.m., the incident started. Newport Chief of Police Rivers testified that breaking wine glasses had become "kind of a tradition" and that the crowd at the marina numbered about 3,500, the limit the security personnel tried to maintain. Rivers heard glass being broken in the area where defendant, his wife and the Chases were. Rivers sent officers Miller and Simpson to the area. Simpson testified that he asked Dana Chase to leave, and she refused. Simpson then physically removed her and outside, after she tried to slap and kick him, Simpson told her that she was under arrest. She tried to run, and when he caught her she continued to fight. Debra Barnes then jumped on his back, as did defendant. Simpson said that Miller took defendant off his back and, as Simpson rolled over, he saw defendant throwing punches at Miller.
Paul Rose was working as a security guard. He testified that he saw a police officer coming out with a female who was yelling and screaming and that he saw her try to slap and kick the officer and try to run. Rose testified that he saw Miller go down and that Rose stepped forward with his hands out, intending to keep the crowd back. Defendant struck Rose in the right eye. Rose suffered a "blow-out fracture" of the eye socket--a fracture of a thin layer of bone at the floor of the socket. The injury resulted in double vision and required surgery. Rose still has some double vision and a "sunken" eye.
Defendant was indicted for "unlawfully and knowingly caus[ing] serious physical injury to Paul Rose" under ORS 163.175(1)(a), which provides:
In turn, ORS 161.085(8) provides:
" 'Knowingly' or 'with knowledge,' when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists."
Defendant first assigns error to the denial of his requested jury instruction on assault in the second degree and to the instruction given. Defendant's requested instruction stated, in part, that, to find the crime of assault in the second degree, the state had to prove:
Defendant argues that the statutory definitions of "intentionally," "recklessly" and "criminal negligence", ORS 161.085(7); ORS 161.085(9); ORS 161.085(10), all refer to "a result * * * described by a statute defining an offense," but that "result" is absent from the definition of "knowingly." Defendant contends, however, that assault in the second degree is a "result offense" and requires proof that the person knowingly caused serious physical injury. Defendant argues that the instructions given did not distinguish between conduct and result. He argues that the instructions must inform the jury that there must be proof beyond a reasonable doubt that he intended a serious physical injury to occur or that he was conscious of the result of the blow and was almost certain that a serious physical injury would occur. He further argues that here the instruction permitted the jury to find him guilty of assault in the second degree if they found that he knowingly struck Rose, even though he did not intend or was not almost certain that Rose would suffer serious physical injury from the blow.
The state responds that the court's elements instruction specifically stated that, to establish second-degree assault, the state had to prove that defendant "knowingly caused serious physical injury to Paul Rose." It argues that the court's instructions "tracked" the uniform jury instructions and relevant statutes and accurately stated the law. It contends that, given the juxtaposition of "knowingly" and "caused" in the instruction, as well as the court's instruction that "a person acts 'knowingly' if that person acts with an awareness that his or her conduct is of a particular nature," the jury could not reasonably have understood the instructions to mean anything but that defendant had to be aware that his act of punching Rose in the face would cause serious physical injury. It argues that, taken as a whole, the instructions could not have been understood to mean that the state only had to prove that defendant knew he struck Rose in the face.
The drafters of the Oregon Criminal Code sought to restrict the concept of "knowingly" to awareness of the nature of one's conduct or to the existence of specified circumstances. See State v. Jantzi, 56 Or.App. 57, 60 n. 1, 641 P.2d 62 (1982) (). Thus, ORS 161.085(8) specifically provides that the definition of "knowledge" applies "when [knowingly] is used with respect to conduct or to a circumstance described by a statute defining an offense[.]" However, despite that general definition, "knowingly" in ORS 163.175(1)(a) is not used with respect to conduct or a circumstance. It is used instead, as defendant contends, with a result.
In State v. Mayer, 146 Or.App. 86, 90, 932 P.2d 570 (1997), the defendant had been charged with "knowingly" subjecting the victim to sexual contact. Id. at 89, 932 P.2d 570. The statute defining the crime of sexual abuse in the first degree...
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State v. Smith
...No. 3, September 20, 1968, 1-3.8 We recently referred to that aspect of the Supreme Court's analysis in State v. Barnes, 150 Or.App. 128, 132 n. 2, 945 P.2d 627 (1997), rev. allowed 326 Or. 627 (1998).9 We emphasize that the Supreme Court did not merely affirm our disposition in Francis on ......
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State v. Owen
...instructed the jury to find the defendant guilty only if the jury found that he "knew his act would likely cause the prohibited result." Id. at 134-35. review, this court decided whether the trial court had erred in its instruction concerning the requisite culpable mental state for second-d......
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State v. Owen
...to conduct, but the court viewed second-degree assault as defining a prohibited result: serious physical injury. State v. Barnes , 150 Or. App. 128, 133-34, 945 P.2d 627 (1997). The court concluded that the legislature had decided to require proof of the defendant's knowledge of the result ......
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State v. Barnes
...Court of Appeals affirmed his conviction of resisting arrest and reversed his conviction of second-degree assault. State v. Barnes, 150 Or.App. 128, 945 P.2d 627 (1996). The dispositive issue on review is whether the trial court erred in instructing the jury with respect to the culpable men......