State v. Stone

                                        200

 Submitted March 17, reversed and remanded June 7, reconsideration allowed,
   former opinion modified and adhered to as modified September 20, 2023
                              (

)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                     RAYMOND BLAINE STONE,
                        Defendant-Appellant.
                      Lane County Circuit Court
                        20CR64831; A177223
                                     

     Defendant was charged with first-degree assault, ORS 163.185. He was found
guilty and convicted of the lesser included offense of second-degree assault, ORS
163.175(1)(a), for knowingly causing serious physical injury to another. On appeal,
defendant argues that the trial court erred in denying his motion for judgment of
acquittal, because there was insufficient evidence to prove “serious physical injury,”
which is defined in ORS 161.015(8) to mean “physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted
impairment of health or protracted loss or impairment of the function of any bodily
organ.” Held: The trial evidence was legally insufficient to prove “serious physical
injury.” An emergency room doctor’s concern about the possibility that swelling from
the victim’s cheek injury could progress to the point of interfering with his breathing
was insufficient to establish a substantial risk of death, where the swelling never
progressed to that point. As for protracted impairment of health, evidence that the
victim had experienced concussive symptoms that he perceived to last for six weeks
and that his partner perceived to last for three months, without any evidence as to
their frequency or severity over time, was insufficient to establish that the victim
suffered a protracted impairment of health within the meaning of ORS 161.015(8).
    Reversed and remanded.

   Bradley A. Cascagnette, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
    AOYAGI, P. J.
    Reversed and remanded.
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        AOYAGI, P. J.
         Defendant was charged with first-degree assault,
ORS 163.185. He was found guilty and convicted of the lesser
included offense of second-degree assault, ORS 163.175(1)(a),
for knowingly causing serious physical injury to another. On
appeal, defendant raises two assignments of error. First, he
challenges the denial of his motion for judgment of acquittal, arguing that the evidence was legally insufficient to
prove “serious physical injury.” Second, relying on State v.
Owen, 

, 

 (2022), he contends that it
was plain error not to instruct the jury on the mental-state
requirement for the physical-injury element of assault. We
conclude that the court erred in denying the motion for judgment of acquittal as to second-degree assault under ORS
163.175(1)(a) and that, in the particular circumstances of
this case, the appropriate remedy is to reverse defendant’s
conviction under ORS 163.175(1)(a) and remand for further
proceedings, which may include a new trial on other lesser
included offenses. Accordingly, we reverse and remand.
                          FACTS
         Defendant, aged 65, and G, aged 80, lived near each
other in a micro-home community. They were neighbors
and friends. On a November night around 9:00 p.m., defendant knocked on G’s door, and they began drinking whiskey and talking. Around 11:00 p.m., defendant seemed to
have a problem with something that G said, and defendant
started getting agitated. Both men were quite intoxicated.
It is unclear exactly what happened next but, ultimately, G
was injured. A neighbor drove G to the hospital.
         G was treated in the emergency room. According
to the doctor who treated him—and consistent with police
photos in evidence—G had “fairly substantial injuries to his
face,” specifically bruising and swelling around both eyes,
nasal fractures and a one-inch wound on his nose, a one-inch
cut over his left eye, and a larger wound on his left cheek
that was very swollen. G also had swelling on the “back
part of the top of his mouth,” which the doctor attributed
to swelling from the cheek wound, as there was no wound
inside G’s mouth. Upon examination, G’s injuries were not
life threatening. The doctor admitted him to the hospital,
202                                             State v. Stone

however, in case the swelling in G’s mouth progressed to
the point of interfering with his breathing, and because the
swelling around his eyes was “so significant that he actually
couldn’t see.” The doctor also did not think that G should be
discharged given the possibility of a concussion or other progressive head injury. G stayed in the hospital for six days.
To the doctor’s knowledge, G’s condition never became life
threatening.
          Defendant was charged with first-degree assault,
ORS 163.185(1)(a), which requires “[i]ntentionally caus[ing]
serious physical injury to another by means of a deadly or
dangerous weapon[.]” The trial took place 10 months after
G was injured and lasted three days. Numerous witnesses
testified, including G, his partner, several neighbors, police
officers, forensic technicians, and the emergency room doctor. Photos of G’s injuries were admitted into evidence, along
with other documentary evidence. G had very little memory
of what happened. In a recorded police interview played for
the jury, defendant also claimed very little memory of what
happened. Relying on statements that G made on the night
of the incident, circumstantial evidence, and some DNA evidence, the state sought to prove that defendant had viciously
attacked G with a knife. The defense theory was that defendant either did not assault G at all or, alternatively, acted
in self-defense when G pulled a kitchen knife on him. The
defense also sought to prove that whatever caused G’s injuries, it was blunt force trauma and did not involve a weapon.
         Regarding his injuries, G testified that he was
treated for a concussion and facial wounds and that he also
had a gouge in his left arm that was too large to stitch. (The
emergency room doctor did not recall the arm wound, so she
did not describe it, but G mentioned it, and there are also
police photos of it.) It took about a month for the swelling in
G’s cheek to go down. It took about six weeks for his concussion symptoms to clear up. When asked how the concussion
had made him feel, G answered, “Well, I guess lack of cognizance. It’s kind of hard to describe. I was reminded that I
was—I kind of quit taking care of the house and one thing
and another.” By the time of trial, G had a small scar on
his nose bridge and a little bit of discoloration on his arm.
Otherwise, everything had healed or gone away, except that
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he was still in “kind of a depressed mode” where he did not
take care of things like he should.
         G’s partner of three years, Moyer, took care of G
after he was released from the hospital, including staying with him for 10 days. Moyer testified that G, who had
previously been “very independent,” could not take care of
himself for at least a month. He could not do any lifting,
shopping, cooking, or cleaning. She “helped feed him, clean
his house, take care of his dog, take him to doctors’ appointments, everything.” G lost a lot of weight because he could
not wear his dentures due to his facial injuries. His hearing
aids did not work, and his glasses were broken. He needed a
blood transfusion at one point. He was “really weak and just
tired and out of it.” According to Moyer, it took about three
months for G’s wounds to heal to the point that he looked
“somewhat normal.” G also “had concussive symptoms for
three months, and then that sort of turned into depression.”
When asked what she meant by concussive symptoms, Moyer
answered, “Confused. Quiet. … [J]ust out of it, dingy.[1] He
just wasn’t independent like he normally is.” Asked how long
it was before that resolved and G was back to normal, Moyer
stated that she perceived the “dinginess” to last about three
months. She added that G “just wasn’t the same” and that,
“to some extent, he’s still not the same.”
         The emergency room doctor was asked at trial
whether G was diagnosed with a concussion. She testified that she did not believe that she diagnosed a concussion and that she did not know whether anyone else did.
She explained that concussions are “on a spectrum” and
that there is no “objective way of diagnosing a concussion
acutely in the moment.” Rather, a diagnosis is based on “a
constellation of symptoms that happen after a head injury.”
The doctor did not describe the constellation of symptoms

    1
      Like the parties, we understand Moyer to have used the slang term “dingy,”
see Urban Dictionary, https://www.urbandictionary.com/define.php?term=dingy
(accessed May 19, 2023) (“Dingy is a word that can be used as an adjective to
describe someone who is forgetful and makes silly choices at times. It’s similar to ditzy, only usually implies it as a less intensified.”), not the formal word
that is spelled the same but pronounced differently, see Webster’s Third New Int’l
Dictionary 635 (unabridged ed 2002) (defining “dingy” to mean “dirty, soiled,
discolored”).
204                                             State v. Stone

that would lead to a concussion diagnosis. However, when
asked whether memory loss would be a symptom of a concussion, she responded that it “can be.” Similarly, when
asked if seeming “confused, out of it, and dingy” after an
event would be consistent with a concussion, she responded
that those things “could all be consistent with concussive
symptoms.”
         Defendant moved for a judgment of acquittal at
the close of the state’s case, arguing that the evidence was
legally insufficient to prove that G suffered “serious physical
injury” or that a “deadly or dangerous weapon” was used.
The trial court denied the motion. Defendant did not call
any witnesses, so the court immediately proceeded to jury
instructions, instructing the jury on first-degree assault
and four lesser included offenses. The jury found defendant
not guilty of first-degree assault, ORS 163.185(1)(a). It found
him guilty of second-degree assault, ORS 163.175(1)(a). Given
how the verdict form was written, the jury did not address
the other three lesser included offenses.
                         ANALYSIS
          Defendant first assigns error to the denial of his
motion for judgment of acquittal. We examine the evidence
“in the light most favorable to the state to determine whether
a rational trier of fact, accepting reasonable inferences and
reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt.” State
v. Cunningham, 

, 

 (1994), cert den,

 (1995).
          Second-degree assault under ORS 163.175(1)(a)
requires “[i]ntentionally or knowingly caus[ing] serious
physical injury to another[.]” Defendant contends that it was
error to deny his motion for judgment of acquittal, because
the evidence was legally insufficient to establish that G
suffered “serious physical injury,” which is defined in ORS
161.015(8) to mean “physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted
loss or impairment of the function of any bodily organ.” See
ORS 161.015 (stating that its definitions apply to “chapter
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743, Oregon Laws 1971”); Or Laws 1971, ch 743, § 93 (enacting provision codified at ORS 163.175).
         In arguing his motion for judgment of acquittal,
defendant addressed each of G’s injuries, explaining why
they did not qualify as “serious physical injury.” In response,
the state argued that G suffered “serious physical injury” in
the form of (1) a substantial risk of death from throat swelling related to his cheek injury; and (2) protracted impairment of health due to a concussion. The trial court denied
defendant’s motion without stating its reasons. The state
then relied on the same two theories of “serious physical
injury” in its closing argument to the jury. We address each
in turn.2
         With respect to G experiencing a substantial risk
of death from throat swelling related to his cheek injury, we
agree with defendant that the evidence was legally insufficient to support that theory of “serious physical injury.” The
emergency room doctor admitted G to the hospital in part so
that medical care would be readily available if the swelling
in the back of G’s mouth progressed to the point of interfering with his breathing. It never progressed to that point,
however, nor is there any evidence that it would have progressed to that point without medical intervention. Whether
an injury creates a substantial risk of death is judged by
the actual injury. State v. Alvarez, 

,

 (2010), rev den, 

 (2011). Further, a
possibility of a risk of death is not enough. State v. Mayo,

, 586, 

 (1973). The evidence was
insufficient to establish that G’s actual cheek injury caused
a “substantial risk of death.”
         We next consider whether the evidence was legally
sufficient to prove protracted impairment of health due to
a concussion. Below, defendant contested the sufficiency of

    2
      In opposing the motion for judgment of acquittal, the state briefly made
a third argument: that G’s facial wounds created a substantial risk of death
because they were “much worse” than the head injury described in State v.
Alvarez, 

, 

 (2010), rev den, 

 (2011). The trial
court did not ask questions about that argument (as it did with the other two), the
state did not make that argument to the jury, and the state does not make that
argument on appeal. We therefore do not discuss it, except to note that we agree
with defendant’s arguments below as to why it fails.
206                                                 State v. Stone

the evidence to prove that G even had a concussion, but he
no longer makes that argument on appeal, and we conclude
that the evidence, albeit limited, was sufficient to allow a
finding of concussion. The more difficult question is whether
it was sufficient to prove that G’s concussion caused a “protracted impairment of health.”
         We have not previously construed the phrase “protracted impairment of health” in the definition of “serious
physical injury.” Its meaning is ultimately a question of
statutory construction, requiring us to look at text, context,
and, if useful, legislative history. State v. Gaines, 

, 

 (2009). We begin by considering
the difference between “physical injury” and “serious physical injury”—a difference that often determines the degree
of assault—particularly as to impairments.
        “Physical injury” is a relatively low bar, requiring
only “impairment of physical condition or substantial pain.”
ORS 161.015(7). In State v. Higgins, 

,

 (2000), we construed “impairment of physical
condition” to mean any “harm to the body that results in a
reduction in one’s ability to use the body or a bodily organ”:
   “[T]he legislature has not defined the phrase ‘impairment
   of physical condition.’ The dictionary definitions of these
   words prove helpful. Among other things, ‘impairment’
   means ‘the act of impairing or the state of being impaired,’
   Webster’s Third New Int’l Dictionary, 1131 (unabridged ed
   1993); ‘physical’ means ‘of or relating to the body,’ id. at
   1706; ‘condition’ means ‘the physical status of the body as a
   whole … or of one of its parts.’ Id. at 473. The meaning of
   ‘impairment’ is clarified by the definition of ‘impair,’ which
   includes ‘to make worse: diminish in quantity, value, excellence or strength: do harm to: damage, lessen.’ Id. at 1131.
   This examination yields a construction that the legislature
   intended the phrase ‘impairment of physical condition’ to
   mean harm to the body that results in a reduction in one’s
   ability to use the body or a bodily organ.”
An “impairment of physical condition” need not last long to
qualify as “physical injury.” Higgins, 

 (“a
‘protracted’ loss or impairment” is not required for “physical
injury”); e.g., State v. Hendricks, 

, 

 (2015), rev den, 

 (2016) (concluding that a jury
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could find “impairment of a physical condition” where the
victim could not breathe for five seconds while a pillow was
forcibly held over her face).
         We have repeatedly held that cuts and gashes qualify as “impairment of physical condition” because they disrupt the skin’s function of protecting the inner body from
infection. E.g., State v. Jones, 

, 

, rev den, 

 (2009) (“heavy scrape” about
four inches long and one and one-half inches wide on the
victim’s back); State v. Hart, 

, 

 (2008) (half-inch gash on the back of the victim’s
head). Physical injuries that make it difficult to engage in
normal activities such as walking, using stairs, and lifting
small objects also qualify as “impairment of physical condition.” State v. Glazier, 

, 

 (2012), rev den, 

 (2013). By contrast, minor
scratches, scrapes, bruises, and the like that do not impede
physical functioning are not an “impairment of physical
condition.” E.g., State v. Lewis, 

, 

 (2014) (some hair pulled out); State v. Wright, 

, 

 (2012) (bruise on buttock);
Higgins, 

 (scratches and scrapes on neck
and arm); State v. Rice, 

, 

,
rev den, 

 (1980) (slight scratch on face).
        With that understanding of “physical injury,” we
turn to “serious physical injury,” which, again, is “physical
injury which creates a substantial risk of death or which
causes serious and protracted disfigurement, protracted
impairment of health or protracted loss or impairment of
the function of any bodily organ.” ORS 161.015(8).
         The difference between “physical injury” and “serious physical injury” is substantial, not slight. The 1970
commentary of the commission that drafted the definitions
describes “serious physical injury” as synonymous with
“serious bodily harm” and cites the Restatement of Torts for
the proposition that “serious bodily harm” is harm that “ ‘is
so grave that it is regarded as differing in kind, and not
merely in degree, from other bodily harm.’ ” Commentary
to Criminal Law Revision Commission Proposed Oregon
Criminal Code, Final Draft and Report §§ 3, 4 (July 1970)
208                                                           State v. Stone

(quoting Restatement of Torts § 63(b)); see State v. Sparks,

, 

 (2014), rev den, 

(2015) (“Regarding legislative history, the Criminal Law
Revision Commission’s official commentary to the Proposed
Oregon Criminal Code, when relevant, is deemed particularly persuasive.”).
         The 1997 legislature also recognized the “ ‘wide gap’
between the categories of what constitutes a ‘physical injury’
and a ‘serious physical injury’ ” when it created the interim
category of “significant physical injury.” State v. Drew, 

, 

 (2020), rev den, 

 (2021) (quoting Tape Recording, House Committee on
Judiciary, HB 2233, June 12, 1997, Tape 55, Side B (statements of Francis Baker of the Citizens Crime Commission)).
The term “significant physical injury” appears in ORS
137.712 and affects sentencing. We have construed that
term by looking to case law on “physical injury” and “serious physical injury,” with the understanding that “significant physical injury” is meant to “fill in the gap.” Drew, 

.
         This case concerns “protracted impairment of
health” as a form of “serious physical injury.”3 In construing
the meaning of that phrase, a question immediately arises
whether “impairment of health,” as used in the definition
of serious physical injury, means something different from
“impairment of physical condition,” as used in the definition
of physical injury. “Ordinarily, when the legislature uses different terms, we assume that the legislature intends those
terms to have different meanings.” Norwood v. Premo, 

, 

, rev den, 

 (2017).
“That assumption is particularly warranted when, as here,
the terms appear together in the same statutory scheme and

    3
      We limit our analysis to “protracted impairment of health.” In its answering brief on appeal, the state refers to impairment of “health and brain function”
or “health or brain function.” However, the state never mentioned G’s “brain function” in the trial court, nor did the state argue that G suffered “protracted loss
or impairment of the function of any bodily organ,” which is another part of the
definition of “serious physical injury” in ORS 161.015(8). Indeed, the trial court
expressly noted during argument on defendant’s motion that the state was not
arguing impairment of bodily function, only impairment of health. In any event,
the state has not developed any argument regarding impairment of brain function as distinct from impairment of health.
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give rise to different legal consequences.” 

 As commonly
used, “health” appears to be a somewhat broader term than
“physical condition,” while also overlapping to some extent
with vital bodily “functions”:
    “1 a : the condition of an organism or one of its parts in
    which it performs its vital functions normally or properly :
    the state of being sound in body or mind … b : the condition of an organism with respect to the performance of its
    vital functions.”
Webster’s at 1043 (unabridged ed 2002) (boldface in original).
        No existing Oregon case law addresses whether
or when a concussion qualifies as “impairment of health”
and thus “serious physical injury” for purposes of ORS
161.015(8).4 Defendant argues that the legislature did not
intend a concussion to qualify, particularly one that caused
only some quietness and “dingy” behavior. The state maintains that the testimony was sufficient to establish that G
had a concussion that caused “impairment of health.”
         Based on our foregoing analysis, we conclude that
a physical injury that results in a concussion may cause
“impairment of health.” Whether it did so in a particular
case will depend on the evidence. Here, assuming that G
had a concussion, the evidence was quite minimal as to
what symptoms were likely caused by that concussion, as
opposed to pain from physical injuries, emotional distress
about the situation, or the like. G perceived a “lack of cognizance” and was told that he “kind of quit taking care of the
house and one thing and another.” Moyer observed confusion, quietness, and G being “out of it” or “dingy,” which then
“sort of turned into depression.” The only evidence meaningfully linking that testimony to the effects of a concussion

    4
      In State v. Scatamacchia, 

, 

 (2022), rev den,

 (2023), the defendant repeatedly punched a woman in the eye, causing
a “blow-out” orbital fracture and a concussion, which was found to be “serious
physical injury” at trial, but the only issue on appeal was an instructional error
related to mental state. In State v. Tyler, 

, 

 (2010),
the defendant was convicted of attempted second-degree assault for attempting
to cause serious physical injury by punching a woman repeatedly in the head,
arms, neck, and face, which in fact caused her to suffer “a concussion and severe,
prolonged pain,” but attempt is obviously different, and the only issue on appeal
related to merger.
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was the emergency room doctor’s testimony that confusion,
quietness, and being “out of it” or “dingy” are things that
“can” or “could” be concussive symptoms.
         Assuming without deciding that the foregoing evidence was enough to establish that G had a concussion that
caused some “impairment of health,” the next question is
whether the evidence was sufficient to establish that the
impairment of health was “protracted,” which is also necessary for “serious physical injury.” As noted above, G perceived the concussion to resolve within six weeks, while
Moyer thought that G’s “concussive symptoms” lasted for
about three months, particularly the “dinginess.” Viewed in
the light most favorable to the state, that evidence establishes that G showed some concussive symptoms for as long
as three months.5
          The parties have not cited, and we have not found,
any prior Oregon case holding that three months is a “protracted” period under ORS 161.015(8). We have held that
disfigurement is “protracted” when it is still present after
five or six months. State v. Kinsey, 

, 

 (2018) (six months); Alvarez, 

 (five
months). Beyond that, there is little guidance. The common
meaning of “protracted” provides no practical assistance.
See Webster’s at 1826 (defining “protract,” as used here, to
mean “to draw out or lengthen in time or space : continue :
prolong”).

          What does shed some light is that “significant physical injury” is defined to include “a prolonged impairment
of health or the function of any bodily organ.” ORS 137.712
(6)(c)(D) (emphasis added). “Prolonged” and “protracted” are
synonymous in common meaning. See Webster’s at 1815
     5
       The state briefly suggests that the evidence would allow a finding that G
still had concussive symptoms at the time of trial (10 months after the incident),
presumably based on G’s testimony that he was still in “kind of a depressed
mode” and Moyer’s testimony that G was “to some extent … still not the same.”
We reject that suggestion, given the vagueness of the testimony and the lack of
any medical evidence of how long concussive symptoms can last. A jury could reasonably infer that G had concussive symptoms for three months; anything beyond
that would not be a reasonable inference on this record. See State v. Bivins, 

, 

 (2004) (jurors are permitted to make “reasonable
inferences” from evidence, including relying on common experience, but are not
allowed to engage in “speculation and guesswork”).
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(defining “prolong,” as used here, to mean “to lengthen in
time : extend in duration : draw out : continue, protract”).
However, given the legislative history and overall statutory
scheme, it is clear that the legislature intended “prolonged”
in this context to mean a time period longer than “temporary” but shorter than “protracted.” The term “significant
physical injury” is meant to identify a subset of injuries that
are on the more serious end of “physical injury” but that do
not qualify as “serious physical injury.” Drew, 

. Each subpart of the definition of “significant physical injury” is carefully drafted to require less than “serious
physical injury” requires, in part by distinguishing between
“temporary,” “prolonged,” and “protracted” disfigurements
and impairments. Compare ORS 161.015(8) (defining “serious physical injury” as physical injury that creates “a substantial risk of death” or “causes serious and protracted disfigurement, protracted impairment of health[,] or protracted
loss or impairment of the function of any bodily organ”), with
ORS 137.712(6)(c) (defining “significant physical injury” as
an injury that “[c]reates a risk of death that is not a remote
risk” or “[c]auses a serious and temporary disfigurement,”
“a protracted disfigurement,” or “a prolonged impairment of
health or the function of any bodily organ”). The statutory
scheme as a whole thus contemplates three possible durations of impairment or disfigurement: temporary, prolonged,
and protracted.
          Ultimately, we conclude that the trial evidence was
legally insufficient to prove that G suffered a concussion
that caused “protracted impairment of health” as the legislature intended that phrase for purposes of “serious physical
injury” in ORS 161.015(8). The evidence would allow a finding that G had some concussive symptoms for up to three
months, but there is no evidence as to the frequency or severity of those symptoms—particularly after the first six weeks
when G himself felt that his concussion had resolved—or the
degree to which they impaired G’s “health.”
        For example, the symptoms could have been pronounced for a few weeks and then gradually diminished to the
point that G perceived no symptoms at six weeks and Moyer
perceived no symptoms at three months. Cf. State v. Dillon,

, 

 (1976) (concluding that
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the evidence was insufficient to establish that a bullet lodged
in the victim’s soft tissue constituted “serious physical injury,”
where the medical evidence was inadequate, and the victim
“really c[ould]n’t say” at trial whether it presently bothered
him). Without any evidence of the frequency or severity of
symptoms that G and Moyer attributed to a concussion, or
how they changed over time, it is impossible to know how
long G’s “health” was impaired—unless one considers any
observation of any symptom (including symptoms that the
victim himself cannot detect) enough to establish an ongoing
“impairment of health,” which we view as inconsistent with
the legislative intent regarding “serious physical injury.” On
this record, the evidence was legally insufficient to establish
“protracted impairment of health.”
         Accordingly, the trial court should have granted
defendant’s motion for judgment of acquittal as to second-degree assault under ORS 163.175(1)(a).6 There is no question that G suffered “serious” injuries in the lay sense, and
our holding is in no way meant to downplay those injuries
or what happened to G. Legally, however, the evidence was
insufficient to meet the statutory definition of “serious physical injury” in ORS 161.015(8). The state implicitly recognizes that G’s external facial wounds, while looking terrible,
did not meet the legal definition of “serious physical injury.”
And, for the reasons explained, the swelling in G’s mouth
and the evidence of concussion also do not meet the statutory definition of “serious physical injury.”
        The next question is the proper remedy. Neither
party addresses that issue, beyond defendant asking us to
“reverse” his conviction, and the state asking us to reject
defendant’s first assignment of error.
        We conclude that the proper remedy is to reverse
defendant’s conviction for second-degree assault under ORS
163.175(1)(a) and remand for further proceedings, which may
    6
      Technically, defendant moved for judgment of acquittal only on the indicted
charge of first-degree assault, ORS 163.185(1)(a), challenging the sufficiency of
the evidence as to the “deadly or dangerous weapon” and “serious physical injury”
elements. However, his “serious physical injury” argument would apply equally to
the lesser included offense of second-degree assault under ORS 163.175(1)(a), and
both parties agree on appeal that the issue is also preserved as to second-degree
assault, as do we.
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include a new trial on lesser included offenses that do not
require “serious physical injury.” Recall that defendant was
indicted for first-degree assault. The jury was instructed on
that offense and four lesser included offenses: second-degree
assault on a nonweapons theory, second-degree assault on
a weapons theory, third-degree assault, and fourth-degree
assault. The jury ultimately rendered a verdict only on first-degree assault (not guilty) and the nonweapons theory of
second-degree assault (guilty). It did not address the other
lesser-included theories, nor do its findings foreclose those
other theories.7 Having concluded that the nonweapons theory of second-degree assault should not have gone to the
jury, the proper disposition is to put the parties back in the
position where they would have been if defendant’s motion
had been granted.
         In other circumstances, we could simply remand
for entry of a conviction for fourth-degree assault, ORS
163.160(1)(a), which is committed when a person “[i]ntentionally, knowingly or recklessly causes physical injury to
another.” The jury necessarily found that defendant at least
“knowingly” caused “physical injury” to G. Cf. State v. Moyer,

, 

 (1978) (modifying judgment
from first-degree assault to second-degree assault, where
the evidence was insufficient to establish “serious physical
injury,” but “physical injury” and use of a deadly weapon
had been established); Dillon, 

 (reversing
conviction for first-degree assault, where the evidence was
insufficient to prove “serious physical injury” in the form of
“protracted impairment of health,” and remanding for entry
of a conviction for second-degree assault, because the jury
necessarily found “physical injury” in the form of “impairment of physical condition or substantial pain,” which was
supported).
        Here, however, if the trial court had granted defendant’s motion for judgment of acquittal as to first-degree

     7
       A person commits first-degree assault under ORS 163.185(1)(a) if a person
“[i]ntentionally causes serious physical injury to another by means of a deadly
or dangerous weapon[.]” We cannot tell from the verdict form whether the jury
found defendant not guilty of first-degree assault because it was unpersuaded
that he acted intentionally, because it was unpersuaded that he used a weapon,
or both.
214                                                           State v. Stone

assault and the nonweapons theory of second-degree assault,
it is virtually certain on this record that the state would
have continued to pursue lesser included offenses that do
not require “serious physical injury,” including, at a minimum, the weapons theory of second-degree assault. See ORS
163.175(1)(b) (“A person commits the crime of assault in the
second degree if the person … [i]ntentionally or knowingly
causes physical injury to another by means of a deadly or
dangerous weapon[.]”). There is also the complication that
the jury was not instructed on the mental-state requirement
for the physical-injury element of assault, which might also
affect our decision whether to direct entry of a conviction for
fourth-degree assault.
         Given the particular procedural posture of this case,
we therefore reverse defendant’s conviction for second-degree
assault under ORS 163.175(1)(a) and remand for further proceedings. Cf. State v. Raygosa, 

, 

, rev den, 

 (2022) (“To put the parties
in the position they would have been in had the court not
plainly erred in allowing the state to proceed on the sexual abuse charges on Counts 11 and 12, we reverse defendant’s convictions on those counts and remand for retrial on
a legally correct lesser-included offense.”); State v. Burgess,

, 

 (2011), aff’d, 

,

 (2012) (crafting an appropriate remedy where
neither outright reversal nor entry of conviction on a lesser
included offense was appropriate “given the idiosyncratic
procedural posture” of the case).
        Our resolution of defendant’s first assignment of
error obviates the need to address defendant’s second assignment of error.8
           Reversed and remanded.


    8
      In his second assignment of error, defendant argues that it was plain error
not to instruct the jury on the mental-state requirement for the physical-injury
element of assault, relying on the Supreme Court’s recent decision in Owen, 

. We have already reversed defendant’s conviction, so the only point in
addressing the instructional error would be if it was likely to arise on remand in
the same posture. Here, it almost certainly will not, because Owen was decided
after defendant’s trial, and the parties will presumably request the instruction
required by Owen in the event of a retrial.