State v. Cook

• Decision Date: 27 October 1999
• Citation: 163 Or. App. 578,989 P.2d 474
• Parties: STATE of Oregon, Respondent, v. Brandon Cole COOK, Appellant.
• Court: Oregon Court of Appeals

989 P.2d 474

163 Or. App. 578

STATE of Oregon, Respondent, v. Brandon Cole COOK, Appellant.

(96-589; CA A100356)

Court of Appeals of Oregon.

Argued and Submitted September 1, 1999.

Decided October 27, 1999.

Steven H. Gorham, Salem, argued the cause and filed the brief for appellant.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

BREWER, J.

Defendant appeals from a judgment convicting him of assault in the second degree, ORS 163.175(1)(c), following a trial to the court. Although he makes several assignments of error, we write only to address defendant's contention that the trial court committed jurisdictional error by convicting him of second-degree assault under an indictment that charged him only with assault in the first degree, ORS 163.185. For the reasons that follow, we vacate the judgment of conviction and remand.

Defendant was a member of a group of people,¹ who severely beat another man, Spencer, in an altercation that took place outside a tavern in Baker City. The participants had been drinking before the attack occurred. Spencer was rendered defenseless and lay helpless on the ground soon after the attack began. Various witnesses tried to break up the altercation but, before they could do so, the group of attackers delivered multiple kicks to the victim's face and head with their shoes. As did other participants, defendant personally kicked Spencer in the head. Among other injuries, the victim suffered multiple facial fractures, a palate fracture and sciatic nerve damage.

Defendant was indicted on a single charge of assault in the first degree as a result of his role in the attack. The indictment alleged, in part:

"The defendants, acting together and as part of the same transaction * * * did * * * intentionally cause serious physical injury to [Spencer] by means of a dangerous weapon, to-wit: shoes * * *."

At the conclusion of trial, the trial court acquitted defendant of first-degree assault, because the court did not find beyond a reasonable doubt that defendant intended to cause serious physical injury to Spencer.² Instead, the court found that defendant recklessly caused serious physical injury to Spencer by means of a dangerous weapon under circumstances manifesting extreme indifference to the value of human life. As a consequence, the court found defendant guilty of assault in the second degree under ORS163.175(1)(c). Defendant appealed from the ensuing judgment of conviction.

In his first assignment of error, defendant argues that the trial court lacked jurisdiction to convict him of second-degree assault because he was not indicted for that crime and because, according to defendant, second-degree assault is not a lesser included offense of assault in the first degree, the only crime for which he was indicted.

Generally, a court does not have jurisdiction to convict on a charge for which the defendant was not indicted. Riggs v. State of Oregon, 50 Or.App. 109, 113-14, 622 P.2d 327 (1981). However, jurisdiction does exist to enter a conviction for an offense not expressly charged if that offense is one that is lesser included within the offense charged in the indictment. State v. Woodson, 315 Or. 314, 319, 845 P.2d 203 (1993). An offense is lesser included of a charged crime if either of the following tests is satisfied: (1) one offense is necessarily included within the other because the elements of the former are subsumed in the latter; or (2) the facts alleged in the charging instrument expressly include conduct that describes the elements of the lesser included offense. State v. Guzman, 140 Or.App. 347, 351, 914 P.2d 1120 (1996). Because defendant was not formally charged with assault in the second degree, we must determine whether that offense is a lesser included offense of the charged offense, assault in the first degree. Unless it is so included, the trial court lacked jurisdiction to enter the conviction.

We first consider whether the elements of assault in the second degree are subsumed in the elements of first-degree assault. ORS 163.185, which defines first-degree assault, provides:

"A person commits the crime of assault in the first degree if the person intentionally causes serious physical injury to another by means of a deadly or dangerous weapon."

ORS 163.175 defines the offense of assault in the second degree:

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

"(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life."

Most of the elements of the offenses present little analytical difficulty. Defendant does not contend that either the required mental states, the necessary instruments, or the required injury to the victim of the offenses disqualify assault in the second degree as a lesser included offense of first-degree assault.

The result of the criminal conduct must be identical for each offense; the defendant must cause "serious physical injury" to the victim. Likewise, each offense requires that the victim be injured by means of a "deadly or dangerous weapon." An obvious difference does exist between the mental elements of the offenses: the defendant must have acted intentionally in order to be convicted of assault in the first degree; whereas, recklessness suffices for assault in the second degree. By statutory definition, however, "reckless" is subsumed within "intentional" as a mental element actuating criminal conduct. ORS 161.115(3).³ Thus, the mental state required for the offense of conviction is lesser included within the mental element of the charged offense.

Defendant's challenge to the trial court's jurisdiction focuses exclusively on the final element—circumstances that manifest extreme indifference to the value of human life—required for a conviction of second-degree assault under ORS 163.175(1)(c). That element does not create an additional culpable mental state requirement for the offense. State v. Boone, 294 Or. 630, 634, 661 P.2d 917 (1983). Instead, it imputes a heightened degree of blameworthiness to the defendant's conduct by reference to the attendant circumstances. State v. Belcher, 124 Or.App. 30, 34, 860 P.2d 903 (1993), rev. den 318 Or. 351, 870 P.2d 219 (1994). However, the "extreme indifference" requirement is a statutory element of second-degree assault that is not expressly provided as an element of assault in the first degree. See Boone, 294 Or. at 634, 661 P.2d 917. The question, then, reduces to whether that element is subsumed within the offense of first-degree assault.

Defendant argues that a person may intend to cause serious physical injury by means of a dangerous weapon and, thus, commit first-degree assault as the indictment alleged in this case and, yet, be innocent of second-degree assault because the circumstances did not manifest extreme indifference to the value of human life. Defendant acknowledges that his argument has been rejected where the harm resulting from the defendant's conduct is the loss of human life. State v. Henry, 138 Or.App. 286, 907 P.2d 1133 (1995). In Henry, we held that manslaughter in the first degree, ORS 163.118, is a lesser included offense of intentional murder, ORS 163.115. We reasoned that a person who intentionally kills another "necessarily acts in a manner that manifests extreme indifference to the value of human life. Consequently, the crime of first-degree manslaughter does not require proof of an element that is not included in the crime of murder." Id. at 288, 907 P.2d 1133. Defendant contends that the rationale of Henry "does not hold true when the state alleges an intent to cause serious bodily injury, as opposed to an intent to kill." Defendant argues that it does not logically follow that assault in the first degree, which does not require the death of a victim, must be committed with extreme indifference to the value of human life. We agree.

The term "extreme indifference to the value of human life" is not defined by statute. However, in State v. Corpuz, 49 Or.App. 811, 621 P.2d 604 (1980), we stated that extreme indifference to the value of human life means "a state of mind where an individual cares little about the risk of death of a human being." Id. at 819, 621 P.2d 604. In Boone, the Supreme Court noted our definition of the term in Corpuz but, despite extensive analysis, did not expressly adopt that or any other meaning. Boone, 294 Or. at 633-38, 661 P.2d 917. However, the court appeared to conclude that the reckless commission of an extremely dangerous act would qualify, because "it entails `substantial and unjustifiable risk' of serious injury or death." Id. at 638, 661 P.2d 917.

As noted, both first- and second-degree assault require "serious physical injury" to a victim. ORS 161.015(8) defines "serious physical injury" as

"physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." (Emphasis added.)

The intentional infliction of serious physical injury thus may, but need not, create a substantial risk of death. A conviction for first-degree assault is valid, provided the remaining elements are proven, if protracted disfigurement, impairment of health or protracted loss or impairment of a bodily organ of the victim results. For example, a defendant may intentionally damage a victim's eyesight or hearing by means of a dangerous weapon without manifesting extreme indifference to the value of the victim's life itself. Those and any other number of intentionally inflicted injuries may be serious but not...