State v. Krigbaum

                                281

              Submitted March 28, affirmed June 8, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               CURTIS ALAN KRIGBAUM,
                   Defendant-Appellant.
              Washington County Circuit Court
                   19CR43390; A173150
                            

  Oscar Garcia, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the briefs for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  PER CURIAM
  Affirmed.
282                                        State v. Krigbaum

        PER CURIAM
          Defendant appeals his conviction for criminal mistreatment in the first degree, ORS 163.205, and assault in
the third degree, ORS 163.165, asserting four assignments
of error. We reject the first and fourth assignments without
discussion and write briefly to address the second and third
assignments, both of which relate to jury instructions about
the requisite culpable mental state. We conclude that the
trial court erred, but that the error was harmless, and we
therefore affirm.
         The charges, which the trial court merged after the
verdict, arose out of the same occurrence, in which defendant’s 14-month-old son, L, suffered a tear to his upper
labial frenulum, the skin that connects the upper lip to the
gum line. The state’s theory was that defendant pushed L’s
face into a pillow to stop him crying, whereas defendant testified that the child fell and hit his lip on a phone charger.
         An element of both crimes as charged was that
defendant “knowingly caused physical injury” to L. See ORS
163.205(1)(b)(A); ORS 163.165(1)(h). The Supreme Court
recently construed the same phrase in the crime of seconddegree assault, ORS 163.175, to mean that a defendant must
knowingly engage in assaultive conduct and be at least criminally negligent with respect to the resulting injury. State
v. Owen, 

, 

 (2022) (overruling
State v. Barnes, 

, 

 (1999)); see
also State v. Chemxananou, 

, 

 (2022) (declining to exercise discretion to correct lack of
culpable mental state for resulting injury because any error
was harmless).
         Here, in accordance with Barnes and before Owen
was decided, the trial court instructed the jury that “in
order to prove the defendant knowingly caused physical
injury to [L], the state must prove that the defendant knew
of the assaultive nature of his conduct. The state need not
prove the defendant was aware that his conduct would cause
physical injury to [L].” The trial court denied defendant’s
request to instruct the jury that the state had to prove that
defendant was at least criminally negligent regarding L
being injured, which was erroneous in light of Owen.
Cite as 

 (2022)                             283

         However, that error was harmless in light of the
verdict and other jury instructions provided. See State v.
Reed, 

, 

 (2019) (“If error
is harmless, this court is required to affirm a defendant’s
conviction.”); State v. Ashkins, 

, 

(2015) (In determining whether instructional error is harmless, “the court considers the instructions as a whole and in
the context of the evidence and record at trial.”). Criminal
negligence requires that a defendant “fail[ed] to be aware of
a substantial and unjustifiable risk” such that the “failure
to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the
situation.” ORS 161.085(10).
         At defendant’s request, the trial court instructed
the jury that for defendant’s conduct to be “assaultive” in
nature it would need to be “aggressive physical behavior that
could result in physical injury.” That instruction required
that the jury not only find that defendant failed to be aware
of a risk of injury to L in a deviation from the standard of
care—as required to form the mental state of criminal negligence, ORS 161.085(10)—but that defendant was, in fact,
aware of that risk and proceeded anyway. By finding defendant guilty, the jury necessarily determined that defendant
pushed L’s face into a pillow, and not, as defendant testified,
that L fell on a phone charger. The jury thus determined
that defendant (1) knew that pushing L’s face into a pillow
was aggressive physical behavior and (2) knew that such
behavior could result in physical injury. On this record, a
juror finding those facts as to defendant’s conduct regarding a baby necessarily would have concluded that defendant
grossly deviated from the standard of care that a reasonable person would have exercised. Thus, because the jury’s
verdict demonstrates that it understood defendant to have
acted with at least criminal negligence as to the injury element, the failure to specifically instruct the jury as to that
mental state was harmless.
        Affirmed.