State v. Stone

It is legal error after Owen to fail to instruct the jury "that the defendant must act with a culpable mental state as to the injury element" to be found guilty of second-degree assault. State v. Hatchell, 322 Or App 315, 519 P3d 563 (2022).

Defendant appealed convictions for strangulation, second degree assault, and unlawful use of a weapon (UUW). Defendant assigned error to (1) the failure to provide jury instruction on the culpable mental state required to meet the element of physical injury in second degree assault, (2) the failure to instruct the jury of the mental state to satisfy the element of a “dangerous or deadly weapon” of UUW, and (3) the trial court advising the jury, in response to their question, that strangulation does not require an element of consent or non-consent.  Defendant argued that he choked his intimate partner during consensual sexual activity, and therefore, he did not act with criminal negligence by wrapping an electrical cord around her neck and tightening it.  In response, the State conceded error in the lack of jury instruction for second degree assault but asserted it failed to affect the verdict.  Further, the State disputed that Defendant established plain error in his assertions about the lack of jury instruction for the “dangerous and deadly weapon” element of UUW.  The Court found the failure to instruct the jury on the culpable mental state element of assault likely influenced the jury’s verdict because Defendant claimed the conduct occurred during consensual sexual activity and the Court could infer the victim consented to some conduct because the jury acquitted Defendant of kidnapping, in which consent is a required inquiry.  Additionally, Defendant failed to establish that jury instruction for the UUW charge would change the verdict, therefore the Court found that even if there was plain error, it was harmless and it was unnecessary to exercise the Court’s discretion to change it.  Lastly, the trial court did not err in informing the jury that strangulation does not require an element or “portion” of consent because that information was legally correct and ORS 163.187(2) does not include consensual sexual practices as a category of exception to the crime. Second degree assault conviction is reversed and remanded; remanded for sentencing; and otherwise affirmed.