State v. Pfannenstiel

And in determining whether instructional error was harmless, “we 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 323.

Defendant appealed his second-degree assault conviction, arguing that the trial court did not properly instruct the jury on the required mental state regarding the "serious physical injury" component. The State agreed there was an error but argued it was harmless. “And in determining whether instructional error was harmless, “we 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 323. The Court found that the trial court incorrectly suggested that no mental state was needed for serious physical injury. The Court reasoned that if the jury had been able to assess the necessary mental state linked to the injury element, it might have determined that the defendant acted in an assault manner. The Court held that the trial court erred in failing to instruct the jury that the mental state of criminal negligence applied to the “serious physical injury” element, the error was not harmless and the court had the discretion to correct the error. Judgement of the assault conviction reversed and remanded.