State v. Hatchell

                                      309

  Submitted on remand August 5; in Case No. 17CR27612, Count 1 reversed
  and remanded, remanded for resentencing, otherwise affirmed; in Case No.
   17CR56799, remanded for resentencing, otherwise affirmed; in Case No.
 17CR56804, remanded for resentencing, otherwise affirmed October 12, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                JUSTIN DOUGLAS HATCHELL,
                      Defendant-Appellant.
                Multnomah County Circuit Court
               17CR27612, 17CR56799, 17CR56804;
               A167972 (Control), A167973, A167974
                                   

    Defendant appealed judgments of conviction in three consolidated cases. 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
defendant’s second-degree assault conviction in one of the consolidated cases.
As to that conviction, defendant argued that the trial court erred in refusing to
instruct the jury on a culpable mental state for the serious physical injury element of that charge. Held: The trial court plainly erred in failing to instruct the
jury that the mental state of criminal negligence applied to the serious physical
injury element of the second-degree assault count, the error was not harmless,
and it was appropriate for the Court of Appeals to exercise its discretion to correct that error.
    In Case No. 17CR27612, Count 1 reversed and remanded; remanded for sentencing, otherwise affirmed. In Case No. 17CR56799, remanded for resentencing;
otherwise affirmed. In Case No. 17CR56804, remanded for resentencing; otherwise affirmed.



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

, 

 (2022).
    Kenneth R. Walker, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
310                                      State v. Hatchell

  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  ORTEGA, P. J.
   In Case No. 17CR27612, Count 1 reversed and remanded;
remanded for resentencing, otherwise affirmed. In Case No.
17CR56799, remanded for resentencing; otherwise affirmed.
In Case No. 17CR56804, remanded for resentencing; otherwise affirmed.
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 (2022)                                                311

           ORTEGA, P. J.
         This case is before us on remand from the Supreme
Court. In a consolidated appeal, defendant challenged judgments of conviction for one count each of second-degree
assault constituting domestic violence and coercion constituting domestic violence (Case No. 17CR27612); one count of
tampering with a witness (Case No. 17CR56799); and two
counts of first-degree rape constituting domestic violence,
seven counts of fourth-degree assault constituting domestic
violence, seven counts of strangulation constituting domestic violence, and two counts of coercion constituting domestic violence (Case No. 17CR56804). We affirmed defendant’s
convictions in a per curiam opinion. State v. Hatchell, 

, 

 (2021), vac’d and rem’d, 

,

 (2022) (Hatchell I). The Supreme Court allowed
review, vacated our opinion, and remanded the case to us
for reconsideration in light of State v. Owen, 

, 

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

,

 (2022). State v. Hatchell, 

, 

 (2022) (Hatchell II).
         We first note that the Supreme Court’s remand only
implicates defendant’s assignments of error three through
five. Thus, with respect to defendant’s assignments of error
one, two, six, and seven, we readopt that aspect of our prior
opinion and reject those assignments of error.1 That conclusion disposes of defendant’s challenges to his convictions
in Case No. 17CR56799 and Case No. 17CR56804; thus, we
affirm the convictions in those cases.
         In assignments of error three through five, defendant argued that the trial court erred in its jury instruction
for the second-degree assault count in Case No. 17CR27612.
Defendant argued that the trial court was required to

     1
       In assignments of error one and two, defendant challenged the trial court’s
decision consolidating his cases for trial and refusing to sever one of those cases
for a separate trial. We rejected those assignments of error without written discussion. In assignments of error six and seven, defendant argued that the trial
court erred in giving a nonunanimous jury instruction and that such error was
structural error requiring a new trial. We rejected defendant’s structural error
argument and concluded that the trial court’s error in giving the instruction was
harmless because the jury returned unanimous verdicts. Hatchell I, 

.
312                                          State v. Hatchell

instruct the jury on a culpable mental state with respect
to the serious physical injury element of that crime, and
that the court erred in not giving his two proposed jury
instructions which would have told the jury to apply either
an intentionally or knowingly mental state to that element.
Defendant also argued on appeal that, if either the intentionally or knowingly mental state did not apply, then the
trial court plainly erred in failing to instruct the jury that
the mental state of criminal negligence applied to the injury
element. In our original opinion, we rejected defendant’s
arguments without discussion, because they were foreclosed
by the Supreme Court’s opinion in State v. Barnes, 

, 

 (1999), overruled in part by State v. Owen,

, 

 (2022). In light of the Supreme
Court’s action in Owen, overruling Barnes in part, we conclude on remand that the trial court plainly erred in failing
to instruct the jury that the mental state of criminal negligence applied to the serious physical injury element of the
second-degree assault count, that the error was not harmless, and that it is appropriate to exercise our discretion to
correct that error. Accordingly, we reverse and remand the
second-degree assault conviction in Case No. 17CR27612.
         Additionally, because the three cases were consolidated for trial and appeal, and the trial court sentenced
defendant on all three cases together, we remand all three
cases for resentencing. State v. Sheikh-Nur, 

, 

, rev den, 

 (2017) (where multiple cases were tried together, error required resentencing
on all cases); see also ORS 138.257(4)(a)(A) (“The appellate
court shall remand the case to the trial court … [i]f the
appellate court, in a case involving multiple convictions,
reverses at least one conviction and affirms at least one
other conviction.”).
         In reviewing whether a trial court erred in refusing
to give a requested jury instruction, we “in part determine[ ]
whether the record, viewed in the light most favorable to
the proponent of the instruction, supported giving the
instruction.” Owen, 

. In addition, to determine
whether instructional error was harmless, we “consider[ ] in
part the context of the evidence and record at trial, including the parties’ theories of the case.” 

 (internal quotation
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marks omitted). With those standards in mind, we recount
the relevant portions of the record.
         In March 2017, defendant came home to find that K
had packed her belongings and was intending to leave their
shared household. Defendant became angry and started hitting K “all over the place,” threw her to the ground, and
kicked her repeatedly in the face. K was in the fetal position
asking defendant to stop. She was bleeding from the face,
and at one point she felt that her face “broke” and, at the
end, she could not see out of one eye. K also said that it was
defendant’s shin or the front of his leg that caused her facial
injuries. At trial, K did not know if defendant was wearing
shoes when he kicked her, but thought he probably was.
          Defendant then would not let K leave their basement bedroom, because he did not want anyone to see her.
After five or six days, K convinced defendant that she could
cover up the injury with makeup and a story so that she
could go to work. Once at work, K was sent home because
of her appearance, and she went to a friend’s house. At that
point, K’s face was black, blue, yellow and swollen, her eye
was bloodshot, and she had a big purple mark behind her
ear. K’s friend took her to the emergency room, and she was
diagnosed with a right orbital blowout fracture, which is
multiple fractures around the eye socket such that part of
the orbital contents protrude down, and facial contusions. K
required facial reconstruction surgery, which included the
placement of two metal plates in her face. At the time of
trial, in February 2018, K still did not have feeling on the
right side of her face or inside her mouth.
         As relevant here, defendant was indicted for second-degree assault, constituting domestic violence, based on
his “unlawfully and intentionally and knowingly caus[ing]
serious physical injury to [K]” and that defendant and the
victim “were family or household members as defined by
ORS 135.230(4).”2 Defendant’s theory of the case relative to
second-degree assault was that he did not possess the requisite intent for that level of assault particularly since K’s
    2
      ORS 163.175(1)(a) provides that “[a] person commits the crime of assault in
the second degree if the person … [i]ntentionally or knowingly causes serious
physical injury to another[.]”
314                                          State v. Hatchell

injuries were caused by incidental contact with his shin and
not his foot from the kick. Defendant asked the trial court
to instruct the jury that, to find that he acted intentionally, it had to find that defendant “act[ed] with a conscious
objective to cause the serious physical injury alleged,” and,
to find that defendant acted knowingly, that it had to find
that defendant “act[ed] with an awareness that his conduct
[wa]s causing serious physical injury to another.” Defendant
argued that the trial court should give his requested instructions because the reasoning in Barnes had been implicitly
overruled by subsequent case law. The trial court rejected
those requested instructions, concluding that Barnes was
still controlling law.
          As relevant here, the court instructed the jury
that the state had to prove that defendant “intentionally or
knowingly caused serious physical injury to [K]” and that,
for “the phrase ‘intentionally caused serious physical injury
to [K],’ ‘intentionally’ means that [defendant] acted with a
conscious objective to cause serious physical injury to [K]
or to engage in assaultive conduct” and that for “the phrase
‘knowingly caused serious physical injury to [K], ‘knowingly’
means the defendant acted with an awareness that his conduct was assaultive in nature.” The jury was also instructed
that “serious physical injury’ means a physical injury that
causes serious and protracted disfigurement, causes protracted impairment of health, or causes protracted loss or
impairment of the function of any bodily organ.” The court
did not instruct the jury on a meaning for “assaultive conduct” or “assaultive in nature.”
         On appeal, defendant assigns error to the trial
court’s refusal to give an instruction that it had to find that
defendant intended to cause or knew that his conduct was
causing serious physical injury. In the alternative, defendant argues that the trial court plainly erred in failing to
instruct the jury that the mental state of criminal negligence
applied to the serious physical injury element of the crime,
because that is the minimum mental state that applies for
result elements of crimes.
         We start our discussion with Owen and McKinney/
Shiffer. In Owen, the Supreme Court overruled Barnes, in
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part, and held that the physical injury element in second-degree assault is a result element which carries, at a minimum, a culpable mental state of criminal negligence. The
court further held that a trial court errs when it does not
instruct the jury that the defendant must act with a culpable mental state as to the injury element. Owen, 

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

; 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). In McKinney/Shiffer, issued the same
day as Owen, the Supreme Court held that the trial court’s
failure to instruct the jury on a culpable mental state for the
injury element in assault was plain error. 369 Or at 333-34.
          Applying those cases here, the trial court erred
in failing to instruct the jury on a culpable mental state
for the injury element in the second-degree assault count.
Under Owen, 369 Or at 321, the court did not err in rejecting defendant’s proffered jury instruction that would have
applied the knowingly mental state to that element.3 But,
under McKinney/Shiffer, 

, the court plainly
erred in failing to instruct the jury that the culpable mental
state of criminal negligence applied to the injury element,
because here, like in those cases, the trial court’s error was
based on its reliance on Barnes, a case that defendant specifically called into question with his argument. See State v.
Jury, 

, 

 (2002), rev den, 

 (2003) (“The ‘benchmark’ for error is the law existing
as of the time the appeal is decided.”). We further conclude
that it is appropriate to exercise our discretion to correct
that plain error in this case, because, as explained below,

     3
       We do not address defendant’s assignment of error to the trial court’s failure to give his jury instruction applying the intentionally mental state to the
serious physical injury element of the second-degree assault count. As charged
and instructed, the jury only had to find that defendant acted knowingly to find
him guilty of second-degree assault. Any potential error by the trial court in
failing to instruct the jury that defendant had to act intentionally with respect
to the serious physical injury element to find that he acted intentionally in committing the assault was harmless error, because the jury was also instructed that
“[k]nowledge is also established if a person acts intentionally.”
316                                          State v. Hatchell

the error was not harmless. Cf. State v. Chemxananou, 

, 

 (2022) (declining to correct
plain error, if any, of trial court’s failure to instruct on a
culpable mental state for the injury element in first-degree
criminal mistreatment, because any error was harmless).
         In determining whether instructional error was
harmless, “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.’ ” Owen, 

 (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).
          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). Here, in finding defendant guilty of second-degree assault, the jury necessarily found that he acted with
an awareness that his conduct—which involved repeatedly
hitting K and then kicking K in or near her face while she
was on the floor—was “assaultive in nature.” However, without any instruction on what “assaultive in nature” means,
we cannot say that the instructional error was harmless.
There was nothing in the jury instructions that would have
caused the jury to necessarily find that defendant failed
to be aware of a substantial and unjustifiable risk that K
would suffer serious physical injury—which, as instructed,
is “a physical injury that causes serious and protracted
disfigurement, causes protracted impairment of health, or
causes protracted loss or impairment of the function of any
bodily organ”—or that such risk was of such a nature and
degree that a failure to be aware of it constitutes a gross
deviation from the standard of care. See McKinney/Shiffer,

 (in the Shiffer case, the failure to instruct
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on a culpable mental state for the serious physical injury element of second-degree assault was not harmless where the
defendant punched the victim once in the cheek); 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”).
         Defendant’s theory of defense was that he did not
have the requisite mental state to be convicted of second-degree assault, because K’s injuries resulted from incidental
contact with his shin. Had the jury agreed that the shin
contact caused the injury, we cannot be certain that the jury
would have found that that incidental contact reflected a
failure to be aware of the risk of “serious physical injury”—
that is, a substantial and unjustifiable risk of protracted
disfigurement, impairment of health, or loss or impairment
of the function of any bodily organ. Given defendant’s conduct here, the jury could have found that he acted with the
requisite criminal negligence as to that element. However,
that conduct in context with the given jury instructions does
not lead us to a conclusion that the jury necessarily so found
when it returned its guilty verdict for second-degree assault
in this case. In coming to that conclusion, we emphasize that
our task here does not involve looking at the evidence as
a factfinder and making that assessment ourselves; rather
we must consider whether the failure to give the instruction
may have affected the outcome of the case. Because we so
conclude, we reverse and remand the second-degree assault
count in Case No. 17CR27612.
         In Case No. 17CR27612, Count 1 reversed and
remanded; remanded for resentencing, otherwise affirmed.
In Case No. 17CR56799, remanded for resentencing; otherwise affirmed. In Case No. 17CR56804, remanded for resentencing; otherwise affirmed.