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State v. Pryor

Court of Appeals of Oregon

September 19, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN HENRY ROSS PRYOR, aka John Henryross Pryor, Defendant-Appellant.

          Submitted February 26, 2018.

          Multnomah County Circuit Court 15CR43245; Leslie M. Roberts, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Sharia Mayfield, Assistant Attorney General, filed the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case 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.

         [294 Or.App. 126] Judgment of conviction for first-degree assault reversed and remanded; remanded for resentencing; otherwise affirmed.

         [294 Or.App. 127] DEVORE, J.

         After 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.

         Defendant 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 163.185(1)(a),

"(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[.]"

         Defendant 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.

         At 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 ...


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