State v. Henry

                                    619

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1)
 On appellant’s petition for reconsideration filed March 15, and respondent’s
     response to appellant’s petition for reconsideration filed March 29;
 reconsideration allowed, former opinion withdrawn, conviction on Count 4
  reversed and remanded, remanded for resentencing, otherwise affirmed
                                 June 29, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 RODNEY RODELL HENRY,
                     Defendant-Appellant.
                Multnomah County Circuit Court
                      19CR37514; A174217


  Jerry B. Hodson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, for petition.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, for response.
  Before James, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  JAMES, P. J.
   Reconsideration allowed; former opinion withdrawn; conviction on Count 4 reversed and remanded; remanded for
resentencing; otherwise affirmed.
620                                             State v. Henry

        JAMES, P. J.
         We originally affirmed defendant’s convictions and
sentence without opinion. State v. Henry, 

,

 (2022). The day after we issued our decision in
this case, the Supreme Court decided State v. Owen, 

, 

 (2022), and State v. McKinney/Shiffer, 

, 

 (2022).
        Defendant originally raised, among other assignments of error, a plain error challenge to the following jury
instruction:
   “When used in the phrase ‘knowingly … causes physical
   injury to another person,’ ‘knowingly’ means that the person acts with an awareness that he is assaulting another
   person. The state does not need to prove that the person
   acted with an awareness that his conduct would cause a
   particular result.”
That instruction related to Count 4, in which the state had
charged defendant with fourth-degree assault after defendant struck the victim on the arm. In his opening brief,
defendant argued that the trial court had plainly erred
in giving the uniform instruction quoted above because it
omitted a culpable mental state as to physical injury.
        Defendant asks us to reconsider our affirmance on
that assignment of error. The state concedes that, in light of
Owen and McKinney/Shiffer, the trial court plainly erred in
instructing the jury on fourth-degree assault. We accept the
concession.
         Reconsideration allowed; former opinion withdrawn;
conviction on Count 4 reversed and remanded; remanded for
resentencing; otherwise affirmed.