State v. Allen

                                       678

 Submitted on remand from the Oregon Supreme Court August 3; conviction on
Count 1 reversed and remanded, remanded for resentencing, otherwise affirmed
                           September 14, 2022.


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                THOMAS JOHN ROBERT ALLEN,
                      Defendant-Appellant.
                 Clackamas County Circuit Court
                      CR1401318; A166187
                                   

     Defendant appealed a judgment of conviction for first-degree assault (Count 1)
and first-degree criminal mistreatment (Count 2) of his girlfriend’s three-yearold child. In a prior opinion, the Court of Appeals affirmed those convictions. The
Supreme Court vacated that opinion and remanded the case for reconsideration
in light of State v. Owen, 

, 

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

, 

 (2022). The Supreme Court’s remand implicated only two of the issues raised in defendant’s appeal. In the first, defendant
argued that the trial court erred in denying his motions for judgment of acquittal because the state had not proved that defendant knowingly caused the child
serious physical injury or physical injury such that he could be convicted of first-degree assault or first-degree criminal mistreatment, respectively. In the second, defendant argued that the trial court erred in refusing to instruct the jury
that it had to find that defendant acted with criminal negligence with respect to
the injury element of his charges. Held: (1) The trial court did not err in denying defendant’s motions for judgment of acquittal because the knowingly mental
state did not apply to the injury element of the charges. (2) The trial court erred
in refusing to give defendant’s requested jury instruction applying the criminal
negligence mental state to the injury element of the charges. That error was
harmless with respect to the first-degree criminal mistreatment conviction but
was not harmless with respect to the first-degree assault conviction.
    Conviction on Count 1 reversed and remanded; remanded for resentencing;
otherwise affirmed.



   On remand from the Oregon Supreme Court, State v.
Allen, 

, 

 (2022).
    Susie L. Norby, Judge.
   Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Cite as 

 (2022)                            679

   Jordan R. Silk, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Janis C. Puracal filed the brief amicus curiae for Forensic
Justice Project.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
   ORTEGA, P. J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
680                                            State v. Allen

        ORTEGA, P. J.

          This case is before us on remand from the Supreme
Court, which vacated our prior decision affirming defendant’s convictions and remanded the case to us for reconsideration in light of State v. Owen, 

, 

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

, 

 (2022). State v. Allen, 

, 

(2022) (Allen II). Defendant appealed a judgment of conviction for first-degree assault (Count 1) and first-degree criminal mistreatment (Count 2) of his girlfriend’s three-yearold child. On appeal, defendant primarily challenged the
trial court’s denial of his pretrial motion to exclude expert
testimony that the child was diagnosed with abusive head
trauma. We rejected that assignment and affirmed the trial
court’s ruling that the testimony was admissible scientific
evidence. State v. Allen, 

, 

 (2021), vac’d and rem’d, 

 (2022) (Allen I).
Defendant also argued that the trial court erred when it
instructed the jury that it could reach a nonunanimous verdict, which we rejected as harmless error because the jury
had returned unanimous verdicts. Id. at 273. The Supreme
Court’s remand does not implicate our reasoning on those
two issues; thus, we readopt the analysis set out in our prior
opinion and affirm the trial court’s rulings.

          Defendant raised two other issues in his appeal
that are implicated by the Supreme Court’s remand. In the
first, defendant argued that the trial court erred in denying his motion for judgment of acquittal because the state
had not proved that defendant knowingly caused the child
serious physical injury or physical injury such that he could
be convicted of first-degree assault or first-degree criminal
mistreatment, respectively. Based on Owen, 

,
and as explained further below, we reject that argument
and affirm.

         Second, defendant argued that the trial court erred
in failing to instruct the jury on an applicable mental state
for the injury element of his charges. In our prior opinion,
we concluded that defendant’s argument was foreclosed by
State v. Barnes, 

, 

 (1999), overruled
Cite as 

 (2022)                                  681

in part, State v. Owen, 

, 

 (2022). In
light of the Supreme Court’s action in Owen, which overruled
that holding in Barnes, we conclude on remand that the trial
court erred in refusing to give defendant’s requested jury
instruction that the mental state of criminal negligence
applies to the injury element of both of his charges. However,
we conclude that that error was harmless with respect to
his conviction for first-degree criminal mistreatment and
affirm that count. We further conclude that the error was
not harmless with respect to the first-degree assault conviction and, thus, reverse and remand that count.
         For context, we provide the following facts, as set
out in our original opinion in this case:
       “At the time of the conduct at issue here, defendant lived
   with his girlfriend and her two children—her five-year-old
   daughter and her son, R, who was almost three. Defendant
   would look after the children while their mother was at
   work. One morning while he was watching the children,
   defendant called 9-1-1 and reported that, when he went to
   wake R, he found the child was not breathing. He further
   reported that he tried CPR and put R into a cold bath. He
   also reported that R had recently had pneumonia and that,
   at the time of the call, he was breathing, but was not awake,
   and defendant was unable to wake him. Upon confirming
   that defendant had called 20 minutes after finding R, the
   9-1-1 dispatcher asked why defendant did not call sooner.
   He responded that it was because he rushed R into a cold
   bath and performed CPR and ‘was freaking out.’

       “During the call, defendant also reported that R ‘was
   run over by the dogs.’ Two days before the call, R went over
   to the family’s two Labrador dogs while they were eating,
   and they knocked him down under their raised dog dishes,
   pressing his ear to the heater vent. Defendant reported
   that the dogs had ‘stomped’ on R ‘really hard.’ Defendant
   did not seek medical assistance at the time, and R said
   that he was okay. R’s mother was at work during the incident with the dogs, but defendant and R told her about it
   that day and she observed that R’s ear ‘looked like it was
   pinched’ and that he had a half-dollar-sized bruise on his
   back. Defendant later reported that R had also fallen and
   bumped his forehead on a concrete step a few days before,
   which gave R a ‘knot’ on his head.
682                                               State v. Allen

     “When first responders arrived following defendant’s
  9-1-1 call, they found R unconscious, pale, and without
  a detectable pulse. After they performed CPR, R’s color
  improved, and they transported him by ambulance to the
  hospital. R was diagnosed with an ‘acute left convexity
  subdural hemorrhage,’ which means that he had subdural
  bleeding along the left side of his head. R’s initial CT scan
  showed brain swelling and a hemorrhage on the left side of
  his brain, with indications that both old and new blood was
  present.

      “R underwent emergency surgery to decrease the pressure on his brain and remove the blood. His neurosurgeon,
  Dr. Grewe, also noted that R had bruising on his left ear.
  The surgery, which involved removing a portion of R’s skull,
  revealed that the hemorrhage consisted of all new blood and
  no old blood, which indicated an acute, or recent, injury.
  An acute injury would be one occurring within two days;
  it would not be a week-old injury. Two doctors who became
  involved in R’s care after his surgery, Dr. Leonhardt and
  Dr. Lang, testified that, because the CT scan of R’s brain
  suggested the presence of both old and new blood, it was
  likely that R had suffered a hyperacute injury—an injury
  that was hours old rather than days old; that would explain
  the impression of both older and newer blood on the CT
  scan, despite there being no ‘old’ blood present, as observed
  during surgery.

     “After surgery, the ICU doctor was concerned that R
  would not survive the night and, because of the nature of
  his injuries, called Leonhardt for an immediate consult.
  Leonhardt is a pediatrician at Child Abuse Response and
  Evaluation Services (CARES) and specializes in treating abuse. Leonhardt observed that R did not appear to
  have a skull fracture or lumps on his head, which would
  indicate a contact injury. Leonhardt took photographs
  of bruises he observed on R, which included bruising on
  both the inside and outside of his left and right ear, on
  his back, and on his elbow, and included petechia—small
  broken blood vessels—on his lower neck near the collarbone. Leonhardt testified that the ear bruising was
  particularly concerning, because it was not in an area
  commonly injured by accident. He recommended additional medical evaluations and referred the case to Lang,
  another pediatrician who specializes in treating abuse
  with CARES.
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 (2022)                                683

     “R’s bloodwork did not reveal a bleeding disorder, X-rays
  showed that R had no additional injuries, an MRI of R’s
  brain confirmed the subdural hemorrhage and indicated a
  ‘shear injury’ to R’s brain itself, and an eye examination
  found in both R’s eyes a few, scattered retinal hemorrhages,
  or bleeding in the eye. The shear injury to R’s brain indicated ‘that the brain had gone through some acceleration
  and deceleration.’ The retinal hemorrhages were less conclusive. Lang explained that, in the case of abusive head
  trauma, children can have ‘very significant’ retinal hemorrhages, as in too many hemorrhages to count. R’s results
  showed ‘more than what we would expect in an accident,’
  but he ‘certainly [did not] have the retinal hemorrhages
  that are too many to count or that would be clearly almost
  diagnostic of abusive head trauma.’
      “Grewe, R’s neurosurgeon, testified that a shear injury
  is produced by trauma and that the type of injury to R
  implied that he suffered an acceleration and sudden deceleration. He also testified that he did not believe that R’s
  fall on the concrete step or the incident with the dogs could
  have resulted in R’s injury, because R did not experience
  loss of consciousness, scalp swelling, or skull fracture from
  those incidents and because ‘it takes a big trauma to produce what he had.’
     “Leonhardt opined that all the results, including the
  absence of a contact injury, suggested that R’s injury was
  an ‘acceleration/deceleration injury,’ which could occur if a
  child is violently shaken or thrown down onto a soft surface. …
     “…
     “Lang testified that bruising on R’s torso, back, ears,
  and neck are ‘significantly associated with abuse.’ Lang
  also testified that the bruising and swelling on R’s elbow
  ‘was outside the range of normal.’ In looking at R’s case,
  Lang ruled out other causes for R’s injury. Ultimately, taking into account the bruising and lack of a contact injury,
  Lang concluded that his brain injury ‘was most consistent
  with abusive head trauma and child physical abuse.’ Lang
  testified that, based on the severity of the injury, R would
  have become immediately symptomatic, indicating that his
  injury had to be caused within a few hours before R’s first
  CT scan, which indicated a hyperacute injury. Lang also
  opined that R suffered ‘some sort of violent acceleration/
684                                                            State v. Allen

   deceleration injury’ that could not have been caused by R
   just falling on his own.
      “The jury found defendant guilty of first-degree assault
   and first-degree criminal mistreatment by unanimous verdicts. This appeal followed.”
Allen I, 

.
         We first address defendant’s assignments of error to
the trial court’s denial of his motions for judgment of acquittal. In Count 1, defendant was indicted with committing
first-degree assault by “knowingly caus[ing] serious physical injury to [R], a child under six years of age.” In Count 2,
he was indicted with committing first-degree criminal
mistreatment by “having assumed the care, custody, and
responsibility for the supervision of [R], a dependent person,
did unlawfully and knowingly cause physical injury to [R].”1
On appeal, defendant argues that the state was required to
prove that he knowingly caused R serious physical injury
(for the first-degree assault charge) or physical injury (for
the first-degree criminal mistreatment charge), and that he
was entitled to a judgment of acquittal because the state
failed to put on evidence of his mental state with respect to
the physical injury element of the charges.
        In our original opinion, we rejected defendant’s
arguments based on Barnes, which held that, for an assault
charged with the knowingly mental state, the state did not
have to prove that the defendant knew that his conduct
would cause serious physical injury. Allen I, 

. In Owen, although the Supreme Court overruled

   1
     ORS 163.185(1)(b) provides:
       “A person commits the crime of assault in the first degree if the person … [i]ntentionally or knowingly causes serious physical injury to a child
   under six years of age[.]”
   ORS 163.205(1)(b)(A) provides, in relevant part:
       “(1) A person commits the crime of criminal mistreatment in the first
   degree if:
       “…
       “(b) The person … having assumed the permanent or temporary care,
   custody or responsibility for the supervision of a dependent person … intentionally or knowingly:
       “(A) Causes physical injury or injuries to the dependent person[.]”
Cite as 

 (2022)                             685

Barnes in part, the court “adhere[d] to the holding in Barnes
that the ‘knowingly’ culpable mental state does not apply to
the injury element.” Owen, 

; see also generally
State v. Carlisle, 

, 

 (2022) (explaining
the holistic approach used to discern whether the legislature
intended the knowingly mental state to apply to an element
of a crime). As a result, Barnes still controls in that regard,
and we reject defendant’s assignments of error to the denial
of his motions for judgment of acquittal.
         Finally, we address defendant’s assignment of error to
the jury instructions. At trial, defendant submitted instructions, rejected by the trial court, that would have instructed
the jury that the mental state of criminal negligence applied
to the physical injury elements of both charges. In rejecting
his challenge to the trial court’s ruling in our prior opinion, we relied on Barnes. Allen I, 

. In
Owen, the Supreme Court overruled that aspect of Barnes.
The court held that the result element—physical injury—in
the crime of second-degree assault carries, at a minimum, a
culpable mental state of criminal negligence and that a trial
court errs when it fails to instruct the jury that a defendant
must act with a culpable mental state as to the element of
causing physical injury. Owen, 

. We have
concluded that the same conclusion applies to first-degree
assault, State v. Hilding, 

, 

(2022), and first-degree criminal mistreatment, State v.
Krigbaum, 

, 

 (2022), under
the sections of those statutes that were charged in this case.
As a result, defendant was entitled to have the court deliver
the requested jury instructions and the court erred in not
doing that. See State v. McNally, 

, 

 (2017) (“A criminal defendant is entitled to have the jury
instructed in accordance with his or her theory of the case if
the instruction correctly states the law and there is evidence
to support giving it.”); State v. Jury, 

,

 (2002), rev den, 

 (2003) (“The ‘benchmark’ for error is the law existing as of the time the appeal
is decided.”).
        Having concluded that the trial court erred, we must
determine if that error was harmless. Owen, 

.
In determining whether instructional error was harmless,
686                                                 State v. Allen

“we consider the instructions ‘as a whole and in the context
of the evidence and record at trial, including the parties’
theories of the case with respect to the various charges and
defenses at issue.’ ” 

 (quoting State v. Payne, 

, 

 (2020)). A party is prejudiced by instructional error if “the trial court’s failure to give the requested
instruction probably created an erroneous impression of the
law in the minds of the members of the jury, and if that
erroneous impression may have affected the outcome of the
case.” Hernandez v. Barbo Machinery Co., 

,

 (1998).
         Here, the defense theory was that R was injured by
accidental falls in the days prior to the 9-1-1 call. The state’s
theory was that defendant engaged in assaultive conduct,
such as throwing R, with such force as to cause R’s brain
injuries sometime in the hour or two before defendant called
9-1-1, while R’s mother was at work. As relevant here, the
trial court instructed the jury that:
      “A person acts knowingly or with knowledge if that person acts with an awareness that his conduct is of a particular nature. When used in the phrase ‘knowingly caused
   serious physical injury’ or ‘knowingly caused physical
   injury,’ ‘knowingly’ means that the person is aware of the
   assaultive nature of his conduct, but does not necessarily
   intend to cause any injury.
       “ ‘Assaultive nature of his conduct’ means forceful behavior that is consistent with causing an injury. Knowledge is
   also established if a person acts intentionally.
      “…
      “The term ‘physical injury’ means an injury that
   impairs a person’s physical condition or causes substantial
   pain.
       “The term ‘serious physical injury’ means a physical injury that either, one, creates a substantial risk of
   death or, two, causes serious or protracted disfigurement
   or, three, causes protracted impairment of health or, four,
   causes protracted loss or impairment of the function of any
   bodily organ.”
        Instructing the jury that defendant must have
acted with criminal negligence that his conduct would cause
Cite as 

 (2022)                             687

physical injury—for the first-degree criminal mistreatment
charge—would not have affected the verdict. Criminal negligence requires that the defendant “fail[ed] to be aware
of a substantial and unjustifiable risk that the result will
occur” and “[t]he risk must be of such nature and degree
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). The jury
found that defendant acted with an awareness that he used
forceful behavior that is consistent with causing an injury
and in doing so caused R physical injury. The jury also necessarily disbelieved defendant’s theory that R’s injuries
were caused by an accident. In light of the testimony of R’s
doctors about the severity of his brain injury, that it was a
recent injury, and that it would take a “violent acceleration/
deceleration” to cause that injury, it is implausible that the
jury having so found would then also find that defendant
was not at least criminally negligent in failing to be aware
that R could experience a physical injury—an injury that
impairs a person’s physical condition or causes substantial
pain—as a result of his assaultive conduct. See Krigbaum,

 (where the jury found that, based on the
jury instructions, defendant knew his conduct was aggressive physical behavior that could result in physical injury,
the jury necessarily would have also found that defendant
was at least criminally negligent with regard to the physical
injury element of first-degree criminal mistreatment); see
also State v. Chemxananou, 

, 

 (2022) (“It is implausible that the jury, having found that
defendant knowingly took those actions [punching and hitting a child with a plate and strangling and kicking another
child], would then find that he was not at least negligent
with respect to the fact that the children could be injured as
a result.”).
         However, we conclude that instructing the jury
that defendant must have acted with criminal negligence
that his conduct would causes serious physical injury—for
the first-degree assault charge—may have affected the outcome of the case with respect to that charge. There is nothing about the jury instructions in this case, or the alleged
nature of defendant’s conduct, that necessarily would have
688                                              State v. Allen

required the jury to find that defendant failed to be aware of
a substantial risk that his conduct would cause R a serious
physical injury, as that term was defined in the jury instructions, and that the risk was of such a nature and degree that
defendant’s failure to be aware of that risk was a gross deviation from the standard of care. See Hilding, 

 (“This is not a situation where the nature of the assaultive conduct—which in this case was unknown—or other
given instructions necessarily encompassed a culpability
standard with respect to the serious physical injury element
of first-degree assault.”); cf. Owen, 

 (error in
failing to give jury instruction on mental state for injury element of second-degree assault was harmless where, based
on other jury instructions, the jury found that the defendant knew that his conduct was assaultive and knew the
weapons he used were “readily capable of causing serious
physical injury”). As a result, we reverse and remand the
first-degree assault count. Given that disposition we do not
address defendant’s remaining assignments of error that
challenged aspects of his sentencing.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.