State v. Modrzejewski

                                      739

   Submitted June 25, 2020; in Case No. 18CR09518, conviction on Count 1
    reversed and remanded, conviction on Count 7 reversed, remanded for
     resentencing, otherwise affirmed; in Case No. 18CR37061, affirmed
                                May 26, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
             ANTHONY JACOB MODRZEJEWSKI,
                    Defendant-Appellant.
                 Lane County Circuit Court
                  18CR09518, 18CR37061;
                 A168681 (Control), A168677
                                  

    In this consolidated criminal appeal, defendant primarily challenges his convictions of second- and third-degree assault. On appeal, defendant argues that
the trial court erred by denying his motion for judgment of acquittal (MJOA)
with respect to the third-degree assault charge and by accepting a nonunanimous verdict for the second-degree assault charge. The state concedes error as to
the nonunanimous verdict and the MJOA, but nevertheless argues for a remand
with instructions to enter a conviction for attempted third-degree assault.
Held: The Court of Appeals accepted the concessions with respect to the nonunanimous jury verdict and the MJOA. However, as the jury was not instructed on a
lesser-included or inchoate version of third-degree assault, the court could not
determine what judgment should have been entered in the court below and therefore could not direct a conviction on attempted third-degree assault.
    In Case No. 18CR09518, conviction on Count 1 reversed and remanded; conviction on Count 7 reversed; remanded for resentencing; otherwise affirmed. In
Case No. 18CR37061, affirmed.




    R. Curtis Conover, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
740                                 State v. Modrzejewski

  POWERS, J.
   In Case No. 18CR09518, conviction on Count 1 reversed
and remanded; conviction on Count 7 reversed; remanded for
resentencing; otherwise affirmed. In Case No. 18CR37061,
affirmed.
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 (2021)                               741

        POWERS, J.
         In this consolidated criminal appeal, defendant
challenges his convictions of second- and third-degree
assault, unlawful use of a weapon, coercion, menacing, and
second-degree criminal mischief in Case No. 18CR09518,
and his conviction of tampering with a witness in Case No.
18CR37061. Defendant advances 14 assignments of error
between the two cases, and we reject without discussion all
of those assignments, except the assignment addressing the
trial court’s denial of the motion for judgment of acquittal for
the third-degree assault and those addressing the nonunanimous jury instruction and verdicts. As discussed below,
we conclude that defendant is entitled to relief on both the
second-degree assault and third-degree assault convictions.
Accordingly, we reverse and remand on the second-degree
assault conviction, reverse the third-degree assault conviction, remand for resentencing, and otherwise affirm.
         In his first assignment of error, defendant asserts
that the trial court erred by denying his motion for judgment
of acquittal on the third-degree assault charge, Count 7,
which alleged that he knowingly caused physical injury to
a child 10 years of age or younger. Defendant argues that,
because the evidence was insufficient to prove that the victim suffered from physical injury that was “ample or considerable, [rather than] fleeting or inconsequential” pain,
the trial court erred. State v. Long, 

,

 (2017) (internal quotation marks omitted).
Defendant further contends that, because the evidence was
insufficient, we should reverse the conviction. The state concedes that the evidence of pain was insufficient to support
a third-degree assault conviction; however, it urges us to
reverse and remand with instructions to enter a judgment
of conviction on attempted third-degree assault.
          When we review a trial court’s denial of a motion for
judgment of acquittal, we view the evidence in the light most
favorable to the state and draw all reasonable inferences in
its favor. State v. Connelly, 

, 

(2019). Ultimately, our task is to “determine whether any
rational trier of fact, accepting reasonable inferences and
making reasonable credibility choices, could have found the
742                                             State v. Modrzejewski

essential elements of the crime beyond a reasonable doubt.”

 (internal quotation marks omitted).
         The facts relevant to the third-degree assault count,
viewed in the light most favorable to the state, begin when
defendant was at S’s house, his intimate partner, along with
her four children and a mutual friend, A. Throughout the
day defendant had been “drinking beers like crazy” and
appeared to be intoxicated. While S and one of her children
were “hanging out” with defendant, he “freaked out” and
“wouldn’t quit accusing” S of cheating on him. In the process
of following S down the hallway to continue the argument,
defendant pushed S’s seven-year-old child, G, into the wall.
G’s “head bounce[d] off the wall” causing G to say “ow” and
hold “his head a little bit.” G did not seem to suffer from
anything more than “fleeting” pain—rather “he just rubbed
[his head] a little bit and then … he was fine after that.” A’s
impression of G’s reaction to being pushed into the wall was
that “he’s like ow, that kind of hurt kind of.” G’s older brother
said that “it didn’t really look like [G] got hurt or anything.
He just stood up and ran into the living room and sat down.”
          Defendant was charged with third-degree assault
for pushing G into the wall. As charged here, “[a] person
commits the crime of assault in the third degree if the person … [b]eing at least 18 years of age, intentionally or
knowingly causes physical injury to a child 10 years of age
or younger.” ORS 163.165(1)(h).1 “Physical injury” in turn is
defined as “impairment of physical condition or substantial
pain.” ORS 161.015(7). Defendant was tried on the “substantial pain” theory, not on an “impairment of physical condition” theory. Our cases discussing that theory require that
to be “substantial,” the pain experienced by the victim must
be “ample or considerable, and not fleeting or inconsequential.” See Long, 

 (recounting numerous
instances where evidence was insufficient to show substantial pain). Substantial pain “must meet both a degree or
intensity threshold as well as a durational threshold—both
of which are measured subjectively from the victim’s point

    1
      ORS 163.165, the third-degree assault statute, has been amended since
defendant’s conduct. See Or Laws 2019, ch 213, § 119. Because that amendment
does not affect our analysis, we refer to the current version of the statute.
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of view.” State v. Colpo, 

, 

,
rev den, 

 (2020).
          Given the paucity of evidence in the record about
G’s level of pain from being pushed into the wall by defendant, we accept the state’s concession on the insufficiency of
the evidence to support a conviction for third-degree assault.
There is not enough evidence for a rational factfinder to conclude beyond a reasonable doubt that G suffered from ample
or considerable pain rather than fleeting or inconsequential
pain as a result of being pushed into the wall.
          The state asserts that rather than simply reversing the third-degree assault conviction, we should instead
reverse and remand for entry of a conviction of attempted
third-degree assault. Under Article VII (Amended), section 3,
of the Oregon Constitution, we may, if we can determine
what judgment should have been entered, remand with
instructions to enter a judgment for a different conviction.2
The precise scope of our authority under this provision is
not clear, and the parties’ arguments in this case are limited. What is clear, however, is that the state’s argument
fails to explain how this case is distinguishable from State
v. Morales, 

, 

 (1995).
          In Morales, the defendant was found guilty of first-degree rape by aiding and abetting another. 

. On
appeal, the state conceded that there was insufficient evidence for the jury to consider the aiding and abetting rape
count but contended that the correct disposition was entry of
a conviction on attempted first-degree rape. The state reasoned that, because it found the defendant guilty of rape,
“the jury necessarily found that defendant intended to commit rape.” 

 (emphasis in original). The jury in Morales
had been instructed that, to find the defendant guilty, the
   2
     Article VII (Amended), section 3, provides, in part:
   “[I]f, in any respect, the judgment appealed from should be changed, and
   the [reviewing] court shall be of [the] opinion that it can determine what
   judgment should have been entered in the court below, it shall direct such
   judgment to be entered in the same manner and with like effect as decrees
   are now entered in equity cases on appeal to [a reviewing] court. Provided,
   that nothing in this section shall be construed to authorize the [reviewing
   court] to find the defendant in a criminal case guilty of an offense for which
   a greater penalty is provided than that of which the accused was convicted
   in the lower court.”
744                                                 State v. Modrzejewski

state had to prove the defendant did “knowingly aid and
abet another to engage in sexual intercourse,” and the jury
had not been instructed as to the lesser-included offenses
or attempt. 

. Given that situation, we could not
determine from the record consistent with our authority
under Article VII (Amended), section 3, that a judgment of a
lesser-included offense, including the inchoate attempt version of the crime, should have been entered. Id.; accord State
v. Funrue, 

, 

 (2020).
         The same is true here too.3 With respect to the challenged third-degree assault count, the jury was instructed
that defendant must have “knowingly cause[d] physical
injury to G” and was not instructed on a lesser-included or an
inchoate version of that crime. Given that situation and the
arguments made in this case, we cannot make the determination required to enter a conviction of attempted third-degree
assault.4 Accordingly, we reverse the conviction on Count 7.
     3
       Although this case is procedurally similar to our recent case of State v.
Slater, 

, 

 (2021), the result in Slater does not control.
In Slater, the defendant was found guilty of aggravated first-degree theft, but
we determined that the state had not proved, in a permissible manner, that the
value of stolen property was in excess of $10,000, as required for aggravated first-degree theft. Although we reversed the conviction for aggravated first-degree theft
because the evidence with respect to the value of the property was insufficient,
we remanded with instructions to enter a conviction of third-degree theft. 

. This was a permissible disposition because, as the defendant was charged
and tried, each element of aggravated first-degree theft and third-degree theft,
except the value of stolen property, is identical. 

. Compare ORS 164.057
(aggravated first-degree theft) with ORS 164.043 (third-degree theft). At the time
of the defendant’s crimes, Oregon law directed that, if the precise value of stolen
property could not be reasonably ascertained, it was presumed to have a value of
less than $50. See Slater, 

. Because no statutory presumption
with respect to physical pain resulting from assaultive conduct exists, Slater does
not control the disposition of this case.
     4
       We leave for another day whether remanding with instructions to enter a
crime for an attempt is ever possible after a jury finds a defendant guilty for a
crime that was pleaded with a knowing mental state. Compare Morales, 

 n 2 with State v. Zolotoff, 

, 

 (2012)
(holding that the trial court erred in failing to instruct the jury as to the crime
of attempt and explaining that “[t]here is no incongruity between intentionally
taking a substantial step toward possession of a weapon, see ORS 161.405(1)
(‘A person is guilty of an attempt to commit a crime when the person intentionally
engages in conduct which constitutes a substantial step toward commission of
the crime.’), and knowing possession of a weapon by an inmate”); see also State
v. Madison, 

, 

 (2020) (reversing promoting prostitution conviction and remanding with instructions to enter a conviction for
attempt); State v. Garcia, 

, 

 (2006) (reversing
and remanding for entry of a conviction for attempted coercion).
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 (2021)                           745

          In the thirteenth assignment of error, defendant
argues that the trial court erred in instructing the jury
that it need not reach unanimous verdicts, and contends
that, because the erroneous jury instruction constituted a
structural error, his convictions must be reversed in light
of Ramos v. Louisiana, 

, 

, 

 (2020), which held that nonunanimous jury verdicts for nonpetty offenses violate the Sixth Amendment to
the United States Constitution. In State v. Flores Ramos,

, 

 (2020), the Oregon Supreme
Court rejected the argument that giving a nonunanimous
jury instruction constituted structural error that categorically requires reversal in every case. When, as here, the
jury returns mixed—both unanimous and nonunanimous—
verdicts despite the nonunanimous instruction, such
“instructional error was harmless as to the unanimous verdicts.” 

.
         In the related fourteenth assignment of error,
defendant claims that the trial court erred in entering a
conviction on the nonunanimous verdict on Count 1, second-degree assault. Here, defendant—as the state concedes—is
correct. It was erroneous to enter a conviction based on the
nonunanimous jury verdict for second-degree assault, and
therefore defendant is entitled to relief. 

.
        In Case No. 18CR09518, conviction on Count 1
reversed and remanded; conviction on Count 7 reversed;
remanded for resentencing; otherwise affirmed. In Case No.
18CR37061, affirmed.