Submitted January 21, 2014.
Lane County Circuit Court 201114141. Maurice K. Merten, Judge.
Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Nakamoto, Judge, and DeVore, Judge.
[263 Or.App. 631] DEVORE, J.
Defendant appeals a judgment of conviction for second-degree assault, ORS 163.175. Defendant does not assign error to his convictions on two counts of coercion and one count of harassment. Defendant assigns error to the trial court's ruling that defendant could not contend, in closing argument, that the state must prove, but had not, that defendant intended or knew that he used a dangerous weapon. The state responds that the matter is not preserved for appeal and that defendant's statement of the law is incorrect. We conclude that the matter was preserved, and, as to the merits, we review for abuse of discretion, reverse, and remand. State v. Hooper, 256 Or.App. 237, 239, 300 P.3d 235, rev den, 354 Ore. 61, 308 P.3d 206 (2013) (applying that standard). " Because the jury found defendant guilty, we review the facts in the light most favorable to the state." State v. Williams, 313 Ore. 19, 21, 828 P.2d 1006, cert den, 506 U.S. 858, 113 S.Ct. 171, 121 L.Ed.2d 118 (1992).
Defendant and another person, Martindale, were in custody in Lane County, awaiting sentencing. About a week before Martindale's sentencing hearing, defendant demanded that Martindale " pass [his] food over to [defendant] from that period on[.]" One day, after Martindale had failed to save food for defendant, defendant struck Martindale in the face with a broom handle. A witness for defendant testified that defendant did not use a lot of force and only tapped defendant in the face with the broom handle. Martindale recounted that the broom handle was swung hard like a baseball bat. He suffered two chipped teeth and a cut cheek where he bit down from the impact and bled.
At trial, defendant orally requested a jury instruction that the state must prove that defendant must have known that the broom's shaft was a dangerous or deadly [263 Or.App. 632] weapon. The court refused to give that instruction. Defendant persisted, indicating that he would deal with the point in closing argument:
" I would just argue that the 'knowing' element applies to each and every element of that charged offense, Your Honor, and knowing that it's a dangerous or deadly weapon is one of those things the state would have to prove."
The court again refused to offer defendant's jury instruction and directed defendant not to present that argument in closing to the jury, emphasizing, " [D]on't argue it because I'd have to interrupt you and say that's not the law." Defendant adhered to the court's ruling and neither presented a written jury instruction, nor made the proposed argument in closing. The jury found defendant guilty on all counts.
The state argues that the matter is not preserved for appeal. We have concluded that " the party asserting error on appeal must do something, and that something must provide the trial court with enough information 'to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.'" State v. Mosley, 206 Or.App. 172, 176, 136 P.3d 73 (2006), rev den, 342 Ore. 299, 152 P.3d 902 (2007) (quoting State v. Wyatt, 331 Ore. 335, 343, 15 P.3d 22 (2000)). Here, defendant plainly argued that the state had a burden to prove that defendant knew that the broom shaft was a dangerous or deadly weapon and that he wanted the jury to hear that ...