State v. McKinney

• Decision Date: 03 March 2022
• Docket Number: CC 17CR19610 (SC S067558 (Control)), (CC 17CR45148) (SC S067659)
• Citation: 369 Or. 325,505 P.3d 946
• Parties: STATE of Oregon, Respondent on Review, v. Gina Maree MCKINNEY, Petitioner on Review. State of Oregon, Respondent on Review, v. Rocklyn Mitchel Shiffer, Petitioner on Review.
• Court: Oregon Supreme Court

369 Or. 325

505 P.3d 946

STATE of Oregon, Respondent on Review,

v.Gina Maree MCKINNEY, Petitioner on Review.

State of Oregon, Respondent on Review,

v.Rocklyn Mitchel Shiffer, Petitioner on Review.

CC 17CR19610 (SC S067558 (Control)), (CC 17CR45148) (SC S067659)

Supreme Court of Oregon.

Argued and submitted March 11, 2021.

March 3, 2022

Bear Wilner-Nugent, Bear Wilner-Nugent Counselor & Attorney at Law, Portland, argued the cause and filed the briefs for petitioner on review Gina Maree McKinney.

Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, argued the cause and filed the briefs for petitioner on review Rocklyn Mitchel Shiffer. Also on the briefs was Ernest G. Lannet, Chief Defender.

Michael A. Casper, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices, and Nakamoto, Senior Judge, Justice pro tempore.^**

NAKAMOTO, S.J.

Like the defendant in State v. Owen , 369 Or. 288, ––– P.3d –––– (2022), also decided this day, defendants Shiffer and McKinney were each charged in independent cases with an assault offense requiring proof that the defendant knowingly caused physical injury to another person. Defendant Shiffer opted for a bench trial and argued that the trial court had to find that he knew that his actions would result in serious physical injury before finding him guilty. Defendant McKinney's case went to a jury, and she requested instructions that would have required the state to prove that she knew her actions would result in the requisite physical injury. Unlike the defendant in Owen , however, Shiffer and McKinney did not argue at trial that, at minimum, the criminal negligence mental state attaches to the injurious result element. Citing State v. Barnes , 329 Or. 327, 986 P.2d 1160 (1999), both trial courts rejected their arguments, and in McKinney's trial, the court declined to give her requested instructions and instead gave instructions focusing on her knowledge of the nature of her conduct. The Court of Appeals affirmed each of their assault convictions.

On review, each defendant asserts that the trial court erred. Defendants reassert their arguments made in the trial courts that a knowing mental state should have attached to the physical injury element, a conclusion we rejected in Owen . See Owen , 369 Or. at 320, ––– P.3d –––– . Additionally, each defendant makes the unpreserved argument that, if the knowing mental state does not apply to the physical injury element, then the minimum culpable mental state should be criminal negligence. In Owen , we held that the resultant physical injury element of the second-degree assault offense required a culpable mental state and, therefore, that the state must prove that the defendant was at least criminally negligent with respect to the physical injury. Id. at 322, ––– P.3d ––––.

As a result, our decision in defendants’ cases initially is concerned with whether the holding in Owen extends to each defendant's unpreserved argument on review that the result element of assault must have an associated culpable mental state. We exercise our discretion to review the error in each case under plain-error review, and we further conclude that the error in each case was not harmless. Accordingly, we reverse the decisions of the Court of Appeals and in part vacate the judgment of conviction in each case.

I. FACTS

A. Defendant Shiffer

Shiffer was involved in an altercation at a store when he punched the victim on his right cheek. The punch fractured small bones in the victim's face and required multiple procedures to suture a deep wound that penetrated to the bone. As a result, the victim spent two days in the hospital, and the injury caused temporary vision loss and left a permanent scar. The charges against Shiffer included second-degree assault under ORS 163.175(1)(a).¹ He waived his right to a jury.

In his bench trial, Shiffer argued that the state had to prove that he "kn[ew] that that punch [was] going to result in serious physical injury." He argued that Barnes no longer was good law in light of State v. Simonov , 358 Or. 531, 368 P.3d 11 (2016). The state responded that, as this court had held in Barnes , the trial court was only required to find that defendant was aware of the assaultive nature of his conduct and that a knowing culpable mental state did not attach to the physical injury element.

The trial court, which watched a video recording of the altercation from the store's surveillance system, found that Shiffer knowingly and intentionally assaulted the victim and that he caused the victim serious physical injury. The trial court rejected defendant's argument that a knowing mental state applied to the nature of the resultant injury. The court distinguished the offense in Simonov , which involved unauthorized use of a motor vehicle and the element of the vehicle owner's lack of consent, from assault offenses. The court observed that, in the context of the unauthorized use of a vehicle offense, "[t]he lack of authority [to use the vehicle] was not in any way the result of criminal actions" taken by defendant, but rather made the defendant's actions, when taken, criminal. (Emphasis added.)

The trial court concluded that Barnes was not expressly or impliedly overruled by Simonov and that it was "bound by Barnes ."

Shiffer appealed and reprised the argument that a knowing mental state had to attach to the serious physical injury element of second-degree assault. Additionally, he argued for the first time that, even if a knowing mental state did not apply to the serious physical injury element, the element needed at minimum the culpable mental state of criminal negligence. He also asserted that the trial court's failure to apply a culpable mental state of criminal negligence to the element constituted plain error. The Court of Appeals affirmed without opinion. State v. Shiffer , 302 Or. App. 382, 457 P.3d 386 (2020).

B. Defendant McKinney

McKinney's daughter, who was seven weeks old, was admitted to the hospital with a broken femur

. An investigation ensued, and McKinney, a new mother, provided various, conflicting accounts of what had happened. In her final explanation to an investigator with the Tualatin police department, McKinney stated that she was feeding her daughter in the middle of the night and must have fallen asleep while sitting up in her bed and holding her. McKinney told the investigator that she remembered waking up to her daughter crying on the carpet, picking her up, and putting her back in the bed next to her. McKinney similarly testified at trial that she recalled waking up and finding her daughter on the floor and believed that she had fallen asleep and dropped her. McKinney also testified that she had not realized the seriousness of her daughter's injury before taking her to the hospital two days after the incident occurred.

A doctor who was board-certified in pediatrics and child abuse medicine was called to consult to help determine whether the fracture was caused by child abuse. He testified at trial. He related that medical personnel conducted a "bone survey" of the baby by taking x-rays of her whole body and did an MRI study of her head but did not find any other injuries, new or old. Other than the femur fracture, she appeared to the doctor to be a normal, healthy infant.

He testified that a fall from a bed resulting in the type of fracture the baby suffered would be highly unusual but not impossible and that an infant with a femur fracture would be exhibiting signs of significant pain.

McKinney was tried on two counts of first-degree criminal mistreatment under ORS 163.205² and one count of third-degree assault under ORS 163.165(1)(h).³ The jury also considered the lesser-included offense of fourth-degree assault under ORS 163.160(1)(a), which provides that a person commits the crime if she "[i]ntentionally, knowingly or recklessly causes physical injury to another[.]"

McKinney requested that the trial court instruct the jury that, to find her guilty of third-degree assault, the jury "must find that [defendant] knew or was aware that her actions would result in physical injury " and that "[i]t is not enough, as a matter of law, that [defendant] knew or was aware of a risk that her actions would result in physical injury." (Emphasis added.) Like Shiffer, she argued that Barnes was no longer good law in light of Simonov . In conjunction with her requested instructions, she argued in a memorandum of law that Simonov supported the conclusion that "cause physical injury" is a unitary element in third-degree assault and is a "conduct" element that required the jury to find that she knew she would cause her daughter physical injury. She also noted that, in Simonov , the state "had argued that ‘without consent’ was a circumstance element, and that—absent an express mental state within the definition of the crime—the lowest applicable mental state (criminal negligence) would apply ***." However, she did not expressly adopt that argument before the trial court.

The trial court initially was inclined to give the jury instructions McKinney had requested, but after the state asked for reconsideration, the court decided to adhere to Barnes . Ultimately, the trial court instructed the jury that, to find defendant guilty of third-degree assault, "[the jury] must find that defendant knew or was aware of the assaultive nature of her conduct. [The jury] need not find that defendant knew her conduct would cause injury." As for the lesser-included offense of fourth-degree assault, the court instructed the jury that the state had to prove one element in addition to the date of the act: "[Defendant] recklessly caused physical injury to [her daughter]." The court instructed the jury that a person acts "reckles...