State v. Tellez-Suarez

                                       337

Submitted on remand from the Oregon Supreme Court August 4; supplemental
    judgment reversed, remanded for resentencing, otherwise affirmed
  October 12, 2022; petition for review denied March 30, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   ELISEO TELLEZ-SUAREZ,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR20640; A168847
                                   

     Defendant appealed a judgment of conviction for first-degree criminal mistreatment and third-degree assault of his seven-year-old son. In a prior opinion,
the Court of Appeals affirmed the conviction but reversed and remanded defendant’s sentence. 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 one assignment of error raised in defendant’s appeal,
which argued that the trial court plainly erred in omitting a culpable mental
state for the element of resulting physical injury. Held: The Court of Appeals
declined to exercise its discretion to correct any error because the jury’s verdict
indicates that any error was harmless.
     Supplemental judgment reversed; remanded for resentencing; otherwise
affirmed.


   On remand from the Oregon Supreme Court, State v.
Tellez-Suarez, 

, 

 (2022).
   Oscar Garcia, 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 Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   KAMINS, J.
   Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.
338                                             State v. Tellez-Suarez

          KAMINS, J.
         This case is before us on remand from the Supreme
Court. Defendant was convicted of two counts each of criminal mistreatment in the first degree, ORS 163.205(1)(b)(A),
and assault in the third degree, ORS 163.165(1)(h),1 for
pushing his seven-year-old son into a wall and a bookcase,
causing lacerations to the child’s head. In the underlying
appeal, defendant raised five assignments of error. The first
assignment challenged the jury instruction about the requisite culpable mental state, the second and third assignments related to the nonunanimous jury instruction, and
the fourth and fifth assignments regarded aspects of defendant’s sentence. The state conceded the sentencing errors;
we accepted those concessions and affirmed as to the first
three assignments of error. State v. Tellez-Suarez, 

, 

 (2021) (Tellez-Suarez I), vac’d in part
and rem’d, 

, 

 (2022) (Tellez-Suarez II).
         The Supreme Court vacated our decision and
remanded the matter “for reconsideration in light of State
v. Owen, 

, 

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

, 

 (2022).” Tellez-Suarez II, 

. We understand that our limited task
on remand is to reconsider defendant’s first assignment of
error, which contended that the trial court plainly erred in
omitting a culpable mental state for the element of resulting physical injury. Having reviewed the record, we decline
to exercise our discretion to correct any error, because the
jury’s verdict indicates that any error was harmless. See
Owen, 

 (“We will affirm the judgment below if
we determine that there was little likelihood that the error
affected the verdict.” (Citation omitted.)).
         The jury was instructed that “[i]n order to prove
that the defendant knowingly caused physical injury to the
victim, the state must prove that the defendant was aware
of the assaultive nature of his conduct” and that “physical
injury means an injury that impairs a person’s physical
condition or causes substantial pain.” Instructing the jury
   1
     ORS 163.205 and ORS 163.165 have both been amended since defendant
committed his crimes; however, because those amendments do not affect our
analysis, we refer to the current versions of those statutes in this opinion.
Cite as 

 (2022)                               339

that defendant must have acted with criminal negligence
as to resulting physical injury—which requires that the
defendant “fail[ed] to be aware of a substantial and unjustifiable risk … 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”—would not have affected the outcome of the case.
ORS 161.085(10). Given that the jury found that defendant
acted with an awareness that his conduct was assaultive
in nature and that his assaultive conduct—pushing his
seven-year-old- son into a wall and bookcase—was committed with sufficient force to cause physical injury (lacerations
to the forehead) to his child, there is little likelihood that it
would have concluded that defendant was not at least negligent with respect to the risk that the child could be injured
as a result. See State v. Chemxananou, 

,

 (2022) (declining to exercise discretion because
there was little likelihood that the jury, having found that
the defendant knowingly engaged in assaultive conduct
toward his children, would find that he was not at least negligent with respect to the fact that they could be injured as
a result); Owen, 

 (error was harmless because
the jury found that the defendant knowingly engaged in
assaultive conduct and used a dangerous weapon and thus
“would have found that, at least, he was criminally negligent in failing to appreciate the risk of injury”).
         We remand for the trial court to correct the sentencing errors identified in Tellez-Suarez I. 

 (concluding that the trial court erred in ordering restitution and in denying eligibility for alternative incarceration programs).
        Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.