State v. Colby

                                 492

  Argued and submitted January 29, reversed and remanded July 21, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
             RAYMOND WILLIAM COLBY III,
                  Defendant-Appellant.
                Lane County Circuit Court
                  16CR44155; A171911
                              

  Debra K. Vogt, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  PER CURIAM
  Reversed and remanded.
Cite as 

 (2021)                                 493

         PER CURIAM
        This case, in which defendant was convicted of
fourth-degree assault, is before us a second time. The first
time,
   “[d]uring the bench trial, both the state and defense counsel
   submitted jury instructions, including special jury instructions requested by the defense. The special instructions
   provided, among other things, that the factfinder had to
   find that defendant ‘was aware of the assaultive nature of
   his conduct.’ Along with the instructions, defendant stated
   that, ‘under the analysis in [State v. Wier, 

, 

 (2013)], physical injury, whether serious
   or not, is a result element, and that as a result element for
   a crime in the criminal code, a culpable mental state must
   apply.’ ”
State v. Colby, 

, 

 (2018)
(brackets in Colby). The trial court declined defendant’s
request to make a record of its ruling on the charged elements of the crime, explaining that it was rendering a verdict based on credibility. 

. “In particular, the trial
court did not explain what culpable mental state, if any, it
determined applied to the result element of fourth-degree
assault.” 

         In that first appeal, defendant challenged the trial
court’s failure to make a record. We agreed that the court
had erred in not doing that, explaining that, because we
could not tell what legal standard the trial court had applied
in adjudicating guilt, we could not determine whether it
based its ruling on the correct legal premises. We therefore
reversed and remanded the case so that the trial court could
create a sufficient record for our review. 

.
         On remand, the trial court held a hearing to discuss the remand and took the matter under advisement. In
its letter opinion, the court made no mention of the result
element of fourth-degree assault.
         In this second appeal, defendant points to the trial
court’s silence on the result element of fourth-degree assault
and argues that the trial court failed to create a record adequate for our review. Defendant contends that the trial court
494                                             State v. Colby

failed to comply with our remand directions in Colby and
that the trial court’s failure to create a record on the result
element deprived him of an opportunity to seek meaningful
appellate review of the trial court’s ruling. Defendant also
asks for a new trial.
          We agree with defendant that it was error for the
trial court, on remand, not to “explain what culpable mental state, if any, it determined applied to the result element
of fourth-degree assault.” Colby, 

;
cf. State v. Statham, 

, 

 (1983)
(noting that we “remanded to the trial court to give defendant a new trial ‘according to the directions’ of this court”
and that the “trial court must follow those directions”). We
again reverse and remand for the trial court to create a sufficient record for our review. We reject defendant’s request
that we direct the trial court to order a new trial.
        Reversed and remanded.