300 ORAPP 395 - State v. Higginbotham

                                 395

    Submitted October 4; count 1 reversed and remanded, remanded for
            resentencing, otherwise affirmed October 30, 2019


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
           ADAM THOMAS HIGGINBOTHAM,
                  Defendant-Appellant.
             Tillamook County Circuit Court
                  18CR05067; A167754

450 P3d 1042

Jonathan R. Hill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
PER CURIAM
Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.
396 State v. Higginbotham

PER CURIAM
Defendant drove his daughter into the woods and
severely beat her with a wooden stick. After a jury trial,
he was convicted of second-degree assault (Count 1), ORS
165.175, and first-degree criminal mistreatment (Count 3),
ORS 163.205. Defendant appeals and raises five assignments of error: (1) There was insufficient evidence to permit
a finding that the stick was a “dangerous weapon” under
ORS 161.015(1); (2) there was insufficient evidence to find
that he knew the stick was a dangerous weapon as required
by ORS 165.175(1)(b); (3) the trial court failed to instruct the
jury that it had to find that defendant knew the stick was
a dangerous weapon; and the trial court plainly erred by
(4) instructing the jury that it could accept a nonunanimous
verdict on the charges and (5) by accepting a nonunanimous
verdict on the assault charge.1
The state responds that the evidence is sufficient to support a finding that the stick was a dangerous
weapon, and also that defendant knew it was a dangerous
weapon. The state concedes, however, that, in view of State
v. Fletcher,

263 Or App 630, 633

330 P3d 659

 (2014), the
trial court erred by not instructing the jury that it had to
find that defendant knew the stick was a dangerous weapon
and that the court’s error requires us to reverse and remand
on Count 1. We agree and accept the state’s concession.
         As we explained in Fletcher, to establish second-degree assault under ORS 163.175(1)(b), “the state must
prove that defendant intentionally or knowingly used a
dangerous weapon” and that “intent or knowledge must be
proven not simply with regard to physical injury, but with
regard to the nature of the weapon employed as well.”

263 Or App at 633

. Here, although the jury necessarily found
that defendant caused physical injury, which would constitute fourth-degree assault, it did not have instructions
that adequately communicated the mental state element of

    1
      Defendant contends that the Sixth and Fourteenth Amendments to the
United States Constitution require unanimous jury verdicts. As to Count 3, we
reject those arguments on the merits without further discussion and, in light of
our disposition of Count 1, we need not reach them on that count. State v. Haws,

297 Or App 812

, 813 n 1,

444 P3d 1125

 (2019).
Cite as

300 Or App 395

 (2019)                            397

second-degree assault, that is, that the jury was required
to find that defendant knew that the stick was a dangerous
weapon. For that reason, we reverse the conviction on Count
1 and remand to allow the prosecution, at its sole election,
to decide whether to seek entry of a verdict for fourth-degree
assault or to retry defendant on the charge of second-degree
assault.
        Count 1 reversed and remanded; remanded for
resentencing; otherwise affirmed.