State v. Barnes

• Citation: 986 P.2d 1160,329 Or. 327
• Parties: STATE of Oregon, Petitioner on Review, v. Edward Forrest BARNES, Respondent on Review.
• Decision Date: 08 September 1999
• Court: Supreme Court of Oregon

986 P.2d 1160

329 Or. 327

STATE of Oregon, Petitioner on Review, v. Edward Forrest BARNES, Respondent on Review.

(CC 95-1165; CA A91415; SC S44787)

Supreme Court of Oregon.

Argued and Submitted November 2, 1998.

Decided September 8, 1999.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and David B. Thompson, Assistant Attorney General.

Kenneth A. Morrow, of Morrow, Monks & Sharp, P.C., Eugene, argued the cause and filed the brief for respondent on review.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, LEESON, and RIGGS, Justices.¹

VAN HOOMISSEN, J.

Defendant appeals his convictions of second-degree assault, ORS 163.175(1)(a), and resisting arrest, ORS 162.315. He contends that the trial court erred in refusing to give his proffered jury instruction and in failing to instruct the jury correctly. The 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 mental state of "knowingly" on the charge of second-degree assault. We conclude that the trial court did not err. Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals.²

We take the facts from the Court of Appeals' opinion:

"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."

Id. at 130, 945 P.2d 627.

Defendant was indicted for "unlawfully and knowingly caus[ing] serious physical injury to Paul Rose." ORS 163.175 provides in part:

"(1) A person commits the crime of assault in the second degree if the person:

"(a) Intentionally or knowingly causes serious physical injury to another[.]"

ORS 161.085 provides in part:

"As used in chapter 743, Oregon Laws 1971, [the 1971 Oregon Criminal Code] and ORS 166.635, unless the context requires otherwise:

"* * * * *

"(8) `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."

At trial, defendant requested that the jury be instructed that

"[t]o act knowingly in this case the defendant had to have acted with an awareness that his conduct would cause a serious physical injury. A person achieves a particular result knowingly when he is practically certain that his conduct will cause that result. A person who is aware of and consciously disregards a substantial and unjustifiable risk that a serious physical injury will occur acts recklessly, but not knowingly[.]"

(Emphasis added.) The trial court rejected defendant's proffered instruction.³ Instead, the court relied on Uniform Criminal Jury Instruction 1032 (describing "knowingly") and instructed the jury that

"a person acts `knowingly' if that person acts with an awareness that his or her conduct is of a particular nature.

"* * * * *

"Oregon law provides that a person commits the crime of Assault in the Second Degree if that person knowingly—I've defined the term `knowingly'—causes serious physical injury—and I've defined `serious physical injury'—to another.

"In this case to establish Assault in the Second Degree, the State must prove beyond a reasonable doubt the following three elements:

"* * * * *

"Number three, that [defendant] knowingly caused serious physical injury to Paul Rose."

On appeal, defendant argued that the trial court erred in refusing to give his proffered jury instruction and in failing to instruct the jury correctly. The Court of Appeals agreed and reversed, explaining:

"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. * * * 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.

"* * * * *

"[A]ssault in the second degree under ORS 163.175(1)(a) proscribes a result— causing serious physical injury. Here, the trial court instructed the jury according to the statutory definition of `knowingly' and incorporated that definition in its instructions on the elements of assault in the second degree. However, the statutory definition of `knowingly' is restricted to awareness of conduct; it does not define awareness as to result. It is the result that must be proved for the offense of assault in the second degree, and an instruction using only the statutory definition of `knowingly' does not sufficiently inform the jury of the nexus between conduct and knowledge of the result of the conduct to satisfy the elements of ORS 163.175(1)(a)."

Barnes, 150 Or.App. at 133-34, 945 P.2d 627 (emphasis in original; footnote omitted). The court then held:

"Because the instruction that was given could have allowed the jury to find defendant guilty without finding that defendant knew his act would likely cause the prohibited result, the error was not harmless."

Id. at 134-35, 945 P.2d 627.⁴ We granted the state's petition for review on this issue of first impression.

On review, the state contends that the Court of Appeals erred in holding that the trial court's instructions were insufficient. The state argues that the instructions given, which quoted verbatim both the statutory elements of second-degree assault and the statutory definition of "knowingly," were a correct statement of the law that sufficiently apprised the jury of the factual issues that it had to address to find defendant guilty. The state further argues that it was required to prove only that defendant acted with an awareness of the nature of his conduct, i.e., that his conduct was assaultive and likely to cause physical injury, and that his conduct, in fact, caused the victim serious physical injury.

Defendant responds that the definition of "knowingly" in ORS 161.085(8) has no application to ORS 163.175(1)(a) because the statutory definitions of "intentionally," "recklessly," and "criminal negligence," ORS 161.085(7), ORS 161.085(9), and ORS 161.085(10),⁵ refer to a "result * * * described by a statute defining an offense," but that a "result" is absent from the definition of "knowingly" set out in ORS 161.085(8). Defendant posits that second-degree assault is a "result" crime that requires proof beyond a reasonable doubt that he acted with an awareness that his conduct would cause a serious physical injury or that it was practically certain that his conduct would cause that result. Defendant argues that, because the trial court's instructions did not distinguish between "conduct" and "result," the instructions permitted the jury to find defendant guilty of second-degree assault if it found only that he knowingly had assaulted Rose and, in fact, Rose had been seriously injured. Thus, the sole issue presented on review is the sufficiency of the instructions given, not the sufficiency of the evidence to support the conviction of second-degree assault. We review for error as a matter of law. State v. Moore, 324 Or. 396, 427, 927 P.2d 1073 (1996).

Generally, parties are entitled to have a proffered instruction given based on their theory of the case if the instruction correctly states the law. State v. McBride, 287 Or. 315, 319, 599 P.2d 449 (1979). If a proffered instruction is refused, however, there is no error if the instruction is not a correct statement of the law. Hernandez v. Barbo Machinery Co., 327 Or. 99, 106, 957 P.2d 147 (1998); see also State v. Nefstad, 309 Or. 523, 542, 789 P.2d 1326 (1990)

(trial court properly refused proffered instruction because it was "not correct"). There also is no error if the substance of the proffered instruction, even if correct, was covered fully by the trial court's other instructions. Hernandez, 327 Or. at...