State v. Owen
| Decision Date | 03 March 2022 |
| Docket Number | S067658 |
| Citation | 369 Or. 288 |
| Court | Oregon Supreme Court |
| Parties | STATE OF OREGON, Respondent on Review, v. MATTHEW LEE OWEN, Petitioner on Review. |
Argued and submitted March 11, 2021
On review from the Court of Appeals. (CC 17CR67031) (CA A168290) [*]
Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, argued the cause and filed the briefs for petitioner on review. 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. [**]
The decision of the Court of Appeals and the circuit court's judgment of conviction are affirmed.
At issue on review is the culpable mental state, or mens rea, statutorily required to prove second-degree assault, ORS 163.175. A grand jury indicted defendant on two counts of second-degree assault for knowingly causing physical injury to another person by means of a dangerous weapon. Citing State v. Barnes, 329 Or. 327, 986 P.2d 1160 (1999), the trial court instructed the jury that the state had to prove defendant's knowledge of the assaultive nature of his actions, and the court declined to give defendant's requested instructions that would have required the state to prove his mental state concerning the injuries that resulted from his actions. The Court of Appeals affirmed.
On review, defendant maintains that the trial court erroneously instructed the jury. Defendant argues that Barnes was incorrectly decided and that the state had to prove either (1) that he knew that his actions would cause the victim physical injury or, alternatively, (2) that he knew that his actions were assaultive and that, at least he negligently caused physical injury by failing to be aware of the risk that his actions would cause such injury. We agree with defendant's alternative argument and, in part overrule Barnes. However, because we conclude that the instructional error was harmless in this case, we affirm the decision of the Court of Appeals and affirm the judgment of conviction.
In a case raising whether a trial court erroneously refused to give a requested jury instruction, a reviewing court in part determines whether the record, viewed in the light most favorable to the proponent of the instruction, supported giving the instruction. State v. Payne, 366 Or. 588, 607, 468 P.3d 445 (2020). And to determine whether instructional error was harmless, a reviewing court considers in part "the context of the evidence and record at trial, including the parties' theories of the case." State v. Ashkins, 357 Or. 642, 660, 357 P.3d 490 (2015). We describe the record accordingly.
Defendant was indicted on two counts of second-degree assault. The state alleged that defendant had used a dangerous weapon, his boots in the first count and the pavement in the second count, to cause physical injury to the complainant, D. The trial concerned an incident one evening in Portland in which defendant pushed D down and, according to the state, kicked and stomped on D with his boots.
D testified that, while walking through downtown, she ran into a group of friends and acquaintances, stopped to chat, and played her guitar. Defendant was sitting near the group. After D made a mistake playing a song, defendant directed a vulgar insult at her. When D approached defendant and told him not to talk to her like that, defendant suddenly grabbed D, twisted an arm behind her back, and punched her in the face. She fell to the ground. When she tried to get up, D felt defendant's boot land on her back, and the force pushed her face into the sidewalk. Defendant kicked D in the back of the head repeatedly, stomping her head down into the pavement. The next thing D remembered was that she was running away.
Two witnesses confirmed D's account of the attack. Blakeman saw defendant send D to the ground and stomp her head into the pavement three times. Jones heard a "vicious skin on skin sound"-the punch-and then looked over and saw D crawling away. He saw defendant punch D again and then stomp on the back of her head.
Portland Police Bureau Officers Matica, Hall, and Weber also testified. Matica and Hall were driving on patrol when a man flagged them down to report that a woman had been assaulted and pointed out where the man who assaulted her was. They immediately noticed D, who was upset, injured, and bleeding. While Matica called for an ambulance, Hall spotted and approached defendant and repeatedly yelled "stop, police," but defendant ran. Hall chased him on foot, and Weber, in a police car, came to assist. Eventually, they apprehended defendant in a parking lot.
The state also called a detective and a crime scene technician to testify about defendant's boots, a trial exhibit. The boots had a hardened "comp toe" or "safety toe." The crime scene technician confirmed that stains on the boots indicated the presence of blood.
D's medical records were received in evidence, and D testified about her injuries from the assault. Her lip was partially detached, requiring repair and causing nerve damage; her nose and a tooth were broken; and she had a hairline fracture in her shoulder.
Defendant was the sole witness in his defense. The defense theory of the case was that D, unprovoked, had initiated the incident by hitting defendant in the face. After that, he tried to protect himself by pushing D down and keeping her on the ground with his foot.
Defendant recounted that, some days before the incident at issue, Jones, the state's witness, was drunk and had shoved and hit defendant without warning. On the evening of the incident, Jones and D walked toward him. While defendant was focused on Jones, D "cold cocked" defendant on the side of his face with something in her hand, such as keys or a rock. Defendant had swelling and a bruise on his face as a result. He was "seeing stars," his knees buckled, and he fell back, when D hit him again. Defendant then pushed D away, causing D to stumble and fall. Defendant, still dizzy, thought that D was trying to get back up, so he pushed her down with his foot to keep her from hitting him again. Defendant did not stomp on or kick D.
Defendant explained that he ran because he was disoriented and wanted to get out of the situation; he was unaware that the police were chasing him until he saw the marked patrol car with overhead lights on in the parking lot. Defendant told the officers that he had been assaulted, but they ignored him and did not ask him what had happened.
Before trial, defendant requested eight special jury instructions. The trial court incorporated his first two requested instructions, which focused on whether defendant knew that, as used, the boots and the pavement had the characteristics of a dangerous weapon.[1] Defendant's next two requested instructions focused on whether he knew that his actions would cause physical injury to D:
Defendant acknowledged in a supporting memorandum of law that Barnes did not support those instructions. But defendant argued that State v. Simonov, 358 Or. 531, 368 P.3d 11 (2016), did and that Barnes was no longer good law.
Finally, in case the trial court declined to give instructions (3) and (4), defendant requested an alternative set of four special instructions. Based on Barnes, two of the instructions focused on whether defendant knew the "assaultive nature" of his actions:
The other two instructions rested on his contention that, in light of Simonov, the jury had to find that, at least, he was criminally negligent in causing physical injury to D:
Concluding that Simonov did not govern, the trial court declined to give any of defendant's special instructions (3) through (8). Instead, following Barnes, the trial court provided the jury with instructions setting forth the elements of second-degree assault and defining "knowingly" and "with knowledge" as used in the elements of the crime.
First, the trial court explained that the state had to prove three elements to establish that defendant committed second-degree assault:
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