State v. Brosy

Under ORS 163.185(8), a person is guilty of second-degree assault if they “knowingly cause physical injury to another by means of a dangerous weapon." “A ‘dangerous weapon is any weapon, device, instrument, material, or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.’ ORS 163.185(1)

Appellant was convicted of, inter alia, second-degree assault constituting domestic violence, (Count 1). The convictions stemmed from an altercation in which Appellant used an aluminum crutch to strike his girlfriend, L. Appellant appealed all convictions raising nine assignments of error. For the first three assignments, Appellant argued that the trial court erroneously allowed testimony suggesting that he used drugs before the incident and allowed an improper limiting instruction. For the remaining six assignments of error, Appellant argued that the court gave erroneous instructions for mental state and dangerous weapon elements of second-degree assault. Respondent agreed with Appellant’s second argument, but posited the erroneous instruction was harmless. On review, the Court disagreed with Appellant’s first three arguments, but concluded that the error with respect to the dangerous weapon instruction was not harmless. The Court will consider the instructions “‘as a whole and in the context of the evidence and record at trial, including the parties’ theories of the case with respect to the various charges and defenses at issue.’” State v. Owen, 369 Or 288, 323 (2022) (quoting State v. Payne, 366 Or 588, 609). Under ORS 163.185(8), a person is guilty of second-degree assault if they “knowingly cause physical injury to another by means of a dangerous weapon." "A ‘dangerous weapon is any weapon, device, instrument, material, or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.’ ORS 163.185(1). The jury was instructed to find only that Appellant “knowingly caused physical injury to [L] by means of a dangerous weapon,” but was not instructed that Appellant had to know the crutch was a deadly weapon. Therefore, the Court reasoned that the failure to properly instruct the jury was not harmless as it created an erroneous impression of the law that had a likelihood of affecting the outcome of the case. Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.