State v. Chemxananou
| Decision Date | 18 May 2022 |
| Docket Number | A173966 |
| Citation | 319 Or.App. 636,510 P.3d 954 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Ethan CHEMXANANOU, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Mark Kimbrell, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Michael A. Casper, Assistant Attorney General, argued the cause for respondent.
Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Egan, Judge, and Kamins, Judge.
Defendant appeals his conviction for four counts of criminal mistreatment in the first degree, ORS 163.205. Defendant challenges the court's refusal to give a witness false in part jury instruction and asserts that the court plainly erred by omitting a culpable mental state with respect to the element of resulting physical injury.1 We affirm.
Defendant and his wife, Applegate, lived with their three children in Gresham for several years. A few years after defendant moved out and began a new relationship, he was charged in relation to four different instances of child abuse. The first two concerned defendant's then-13-year-old son, K, and included kicking the child and squeezing his throat until he lost consciousness. The other two incidents involved his then-15-year-old daughter, N. In one, he hit N with a dinner plate and in the other, he punched her in the nose, causing a deviated septum.
Defendant altogether denied that he had kicked or strangled K, or that he had hit N with a dinner plate. He did not deny that he had hit N in the nose but claimed that it was accidental. At the time of that incident, the police were summoned, and defendant told them that he "smacked" N but did not intend to hurt her. The defense theory of the case was that the family—and particularly defendant's ex-wife—had manufactured the allegations in retaliation for his leaving the family.
At trial, Applegate, N, and K, all testified. As to the punching incident, N testified that it occurred after she intervened to protect K, whom defendant had pushed to the ground. After she intervened, defendant "came at [her] and swung at her face" with a closed fist punch, breaking her glasses and causing a deviated septum. N and Applegate testified that defendant punched N intentionally, but acknowledged that on the day of the incident they told the police otherwise. At trial, they explained that they were afraid that the police would take defendant and Applegate away and put the children in foster care, so they told police it was an accident. Due to that inconsistency, defendant requested a witness false in part instruction, which the court denied. Defendant assigns error to that denial.
The "witness false in part" instruction provides "[t]hat a witness false in one part of the testimony of the witness may be distrusted in others[.]" ORS 10.095(3). That instruction is appropriate when "sufficient evidence exists for the jury to decide that at least one witness consciously testified falsely and that the false testimony concerns a material issue." State v. Payne , 366 Or. 588, 600, 468 P.3d 445 (2020). Given that there was evidence that the witnesses made statements to police that directly contradicted their trial testimony on a material issue, we agree with defendant that the trial court erred in declining to give a witness false-in-part instruction.
We further conclude, however, that the trial court's error was harmless. See State v. Owen , 369 Or. 288, 323, 505 P.3d 953 (2022) (). The witness false in part instruction informs jurors that, if they conclude that one part of a witness's testimony is false, they may disbelieve the remainder of that witness's testimony. To trigger the second part of the instruction, the jury necessarily must have concluded that a witness was false in the first place. The jury's verdict in this case, however, reveals that it believed N and Applegate and disbelieved defendant as it relates to the potentially false testimony.
Specifically, N and Applegate testified that defendant intentionally punched N, whereas defendant testified that it was an accident—according to defendant, his hand inadvertently swung into N's face when he was trying to pull away from Applegate. The jury resolved the dispute against defendant when it found him guilty of criminal mistreatment as to that event, determining that he "was aware of the assaultive nature of his conduct." To reach that conclusion, the jury must have disregarded the inconsistent statements to police—that the hit was accidental—and believed N and Applegate's trial testimony—that the hit was intentional. In other words, the jury necessarily concluded that the witness testimony was not false in part. Because the witness false in part instruction has no effect if the factfinder does not first conclude that a witness testified falsely, the failure to give the instruction was harmless. See State v. Labossiere , 307 Or. App. 560, 569, 477 P.3d 1 (2020) ().
Defendant next assigns as plain error the jury instruction describing the applicable culpable mental state. As relevant here, a person commits first-degree criminal mistreatment when they, "in violation of a legal duty to provide care for a dependent person[,] * * * knowingly: [c]ause[ ] physical injury or injuries to the dependent person." ORS 163.205(1)(b)(A). In accordance with then-binding case law, the court instructed the jury that "when used in the phrase, ‘knowingly caused physical injury,’ ‘knowingly’ means that the defendant acted with an awareness that his conduct was assaultive in nature." See State v. Barnes , 329 Or. 327, 338, 986 P.2d 1160 (1999) (...
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State v. Hatchell
...to correct that plain error in this case, because, as explained below, the error was not harmless. Cf. State v. Chemxananou , 319 Or App 636, 640, 510 P.3d 954 (2022) (declining to correct plain error, if any, of trial court's failure to instruct on a culpable mental state for the injury el......
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State v. Tellez-Suarez
...defendant was not at least negligent with respect to the risk that the child could be injured as a result. See State v. Chemxananou , 319 Or App 636, 640, 510 P.3d 954 (2022) (declining to exercise discretion because there was little likelihood that the jury, having found that the defendant......