Submitted February 26, 2018.
Multnomah County Circuit Court 15CR43245; Leslie M. Roberts,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Daniel C. Bennett, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Sharia Mayfield, Assistant Attorney General,
filed the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Defendant appeals a judgment of conviction for
first-degree assault, arguing that the court erred in
instructing the jury that, for first-degree assault, the
state did not need to prove that defendant intended to cause
serious injury. Defendant contends that the
court's instruction is directly contrary to the Court of
Appeals' decision in State v. Peacock, 75
Or.App. 217, 706 P.2d 982 (1985). The state argues that
Peacock was wrongly decided, relying on the Supreme
Court's subsequent decision regarding second-degree
assault in State v. Barnes, 329 Or. 327, 986 P.2d
1160 (1999). Held: State v. Peacock, 75
Or.App. 217, 706 P.2d 982 (1985) was not "plainly
wrong." First-degree assault required that the jury be
instructed that the state must prove that a defendant
intended to cause serious physical injury. Accordingly, the
trial court erred in its supplemental instruction that
defendant need only to have intended to assault the victim
but not to have intended some form of a serious injury. That
error was not harmless.
Or.App. 126] Judgment of conviction for first-degree assault
reversed and remanded; remanded for resentencing; otherwise
Or.App. 127] DEVORE, J.
judgment of conviction on a number of offenses, defendant
appeals the conviction for first-degree assault. That offense
is defined as "[i]ntentionally caus[ing] serious
physical injury to another by means of a deadly or dangerous
weapon." ORS 163.185. The trial court responded to a
jury question by instructing that "the defendant need
not be shown to have intended the seriousness of the injury
that was the result of his actions, only that he acted
intentionally in committing his actions in assaulting the
victim." Defendant argues that the court's
instruction was contrary to our decision in State v.
Peacock, 75 Or.App. 217, 706 P.2d 982 (1985). The state
argues that Peacock was wrongly decided, relying on
the Supreme Court's subsequent decision regarding
second-degree assault in State v. Barnes, 329 Or.
327, 986 P.2d 1160 (1999). We agree with defendant and
conclude that the trial court erred in its supplemental
instruction to the jury. We reverse and remand the judgment
as to the conviction for first-degree assault; remand for
resentencing; and otherwise affirm.
was charged and convicted on a count of first-degree assault,
as well as other offenses, arising out of an incident in
which he struck the victim with a baseball bat. Under ORS
"(1) A person commits the crime of assault in the first
degree if the person:
"(a) Intentionally causes serious physical injury to
another by means of a deadly or dangerous weapon[.]"
was also charged with, and found guilty of, first-degree
burglary, second-degree assault, and two counts of unlawful
use of a weapon. The convictions on those verdicts, some of
which merged, are not at issue on appeal.
trial, the court initially instructed the jury that
"Oregon law provides that a person commits the crime of
Assault in the First Degree if the person intentionally
causes serious physical injury to another person-or to
another by means of a ...