State v. Modrzejewski

Under Article VII (Amended), section 3, of the Oregon Constitution, the Court can determine what judgment should have been entered and remand with instructions to enter a judgment for a different conviction.

Defendant appealed conviction of assault, unlawful use of a weapon, coercion, menacing, and criminal mischief in Case No. 18CR09518, and tampering with a witness in Case No. 18CR37061.  Fourteen assignments of error were alleged; the Court addressed the assignment related to third-degree assault. Defendant argued that evidence was insufficient to prove that the victim suffered from “ample or considerable… pain” required to establish third-degree assault. State v. Long, 286 Or App 334, 341, 399 P3d 1063 (2017). Additionally, the Defendant argued that the trial court erred in instructing the jury that they did not need to reach a unanimous verdict and because the jury instruction contained a structural error the conviction should be overturned. The state argued that the assault conviction shouldn’t be reversed, but the Court should reverse and remand for entry of conviction of attempted third-degree assault. Under Article VII (Amended), section 3, of the Oregon Constitution, the Court can determine what judgment should have been entered and remand with instructions to enter a judgment for a different conviction. The Court found a determination required for a conviction of attempted third-degree assault cannot be made, because the jury was not instructed on a lesser included crime. State v. Morales, 137 Or App 616, 905 P2d 256 (1995). In Case No. 18CR09518, conviction on Count 1 reversed and remanded; conviction on Count 7 reversed; remanded for resentencing; otherwise affirmed. In Case No. 18CR37061, affirmed.