203
Submitted August 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
536 P3d 1094
Defendant requests reconsideration of the remedy portion of the Court of
Appeals’ decision in State v. Stone, 326 Or App 200,
532 P3d 90 (2023). In that
opinion, the court reversed defendant’s conviction for seconddegree assault, ORS
163.175(1)(a), because the evidence was legally insufficient to prove “serious physical injury,” and remanded “for further proceedings, which may include a new
trial on lesser included offenses that do not require ‘serious physical injury.’ ”
Defendant contends that he cannot be retried on the other theory of seconddegree
assault, ORS 163.175(1)(b), or for thirddegree assault, ORS 163.165(1)(a), in these
circumstances, and he asserts that the proper remedy is to remand with instructions to enter a conviction for fourthdegree assault, ORS 163.160(1)(a). Held: The
Court of Appeals granted reconsideration and modified its opinion to clarify
that defendant may not be retried for thirddegree assault, ORS 163.165(1)(a),
which requires “serious physical injury.” However, the court rejected defendant’s
arguments regarding retrial for the other theory of seconddegree assault, ORS
163.175(1)(b).
Reconsideration allowed; former opinion modified and adhered to as modified.
Bradley A. Cascagnette, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, for petition.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, for response.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
AOYAGI, P. J.
Reconsideration allowed; former opinion modified and
adhered to as modified.
204 State v. Stone
AOYAGI, J.
Defendant requests that we reconsider our decision
in State v. Stone, 326 Or App 200,
532 P3d 90 (2023), specifically the remedy portion. In Stone, we reversed defendant’s
conviction for second-degree assault, ORS 163.175(1)(a),
based on the legal insufficiency of the evidence to prove that
crime, and we remanded “for further proceedings, which
may include a new trial on other lesser included offenses.”
Stone,
326 Or App at 201. As described below, we grant
reconsideration, clarify one aspect of our former opinion,
and otherwise adhere to our former opinion.
Defendant was charged with first-degree assault,
ORS 163.185, for intentionally causing serious physical injury
to G with a dangerous weapon. At trial, the jury was asked
to decide whether defendant committed the charged offense
or any of four unpleaded lesser included offenses: a nonweapons theory of second-degree assault, ORS 163.175(1)(a)
(“[i]ntentionally or knowingly causes serious physical injury
to another”); a weapons theory of second-degree assault, ORS
163.175(1)(b) (“[i]ntentionally or knowingly causes physical
injury to another by means of a … dangerous weapon”);
third-degree assault, ORS 163.165(1)(a) (“[r]ecklessly causes
serious physical injury to another by means of a … dangerous weapon”); or fourth-degree assault, ORS 163.160(1)(a)
(“[i]ntentionally, knowingly, or recklessly causes physical
injury to another”).
The jury found defendant not guilty of first-degree
assault, but guilty of the nonweapons theory of second-degree assault. That combination of verdicts means that the
jury necessarily found that defendant caused serious physical injury to G but either did not act intentionally or did
not use a dangerous weapon. Stone, 326 Or App at 213 n 7
(discussing same). The jury did not render verdicts on the
other three lesser included offenses.
On appeal, we held that the evidence was legally
insufficient to prove “serious physical injury,” a required
element of the nonweapons theory of second-degree assault.
Id. at 212. Given the circumstances, we concluded that the
appropriate remedy was to “reverse defendant’s conviction
Cite as
328 Or App 203 (2023) 205
for second-degree assault under ORS 163.175(1)(a) and remand
for further proceedings, which may include a new trial on
lesser included offenses that do not require ‘serious physical
injury.’ ” Id. at 212-13. Defendant takes issue with that remedy, making two arguments.1
First, defendant contends that we erred in holding
that he may be retried on the weapons theory of second-degree assault, ORS 163.175(1)(b). He argues that the
weapons theory of second-degree assault requires that he
intentionally caused physical injury to G with a dangerous
weapon and that such theory is now foreclosed by the jury’s
verdict on first-degree assault.2 We reject that argument.
The minimum required culpable mental state for second-degree assault under ORS 163.175(1)(b) is “knowingly,” the
state requested a “knowing” instruction on that offense, and
the trial court instructed the jury that what the state was
required to prove was that defendant “knowingly caused
physical injury to [G] by means of a dangerous weapon.” It is
true that the instruction as a whole was inartfully drafted,
creating a potential ambiguity (that no one seems to have
noticed at the time) as to whether the required mental
state was intentional or knowing.3 Had the jury rendered
1
In their original appellate briefing, neither party addressed the appropriate remedy in the event of reversal. On reconsideration, defendant asks that we
remand for entry of a conviction for fourth-degree assault, while the state maintains that the remedy provided in our former opinion is correct.
2
The first jury necessarily found that defendant either did not act intentionally or did not use a dangerous weapon, so double jeopardy precludes retrial of a
lesser included offense that would require both those findings. However, it does
not preclude retrial of a lesser included offense that would require only one of
those findings, because, as defendant acknowledges, double jeopardy precludes
relitigating only those issues that were necessarily decided in a prior trial. See
State v. Mozorosky, 277 Or 493, 499,
561 P2d 588 (1977) (“The crux of the test is
whether a rational jury could have grounded its verdict upon an issue other than
that which the defendant seeks to foreclose from consideration.” (Internal quotation marks omitted.)).
3
As to the elements of the crime of second-degree assault on a weapons theory, the full instruction given to the jury was as follows:
“Oregon law provides that a person commits the crime of assault in the
second degree if the person intentionally causes physical injury to another by
use of a dangerous weapon.
“In this case, to establish assault in the second degree, the state must
prove beyond a reasonable doubt the following elements:
“(1) The act occurred on or about November 24, 2020; and
206 State v. Stone
a verdict on the weapons theory of second-degree assault,
that might raise an interesting question as to how the verdict should be understood for double-jeopardy purposes. The
jury did not render a verdict, however, so we do not see how
the instructional ambiguity precludes a retrial on second-degree assault, ORS 163.175(1)(b), for knowingly causing
physical injury to G by means of a dangerous weapon. Defendant cites no persuasive authority. We therefore reject defendant’s first argument.
Second, defendant contends that he cannot be
retried for third-degree assault, ORS 163.165(1)(a), and
that our decision “includes contradictory language” on that
point. The state concedes, and we agree, that defendant cannot be retried for third-degree assault. For clarity, we revise
our former opinion to address that issue. First, on the top
of page 213, we replace the existing sentence to which footnote 7 is attached with this sentence: “It did not address
the other lesser-included offenses, nor do its findings foreclose those other theories, except for third-degree assault,
which cannot be retried because third-degree assault under
ORS 163.165(1)(a) requires proof of ‘serious physical injury.’ ”
Footnote 7 remains attached. Second, in the sentence that
begins on the last line of page 213 and continues onto page
214, we delete the words “at a minimum” so that the concluding clause reads, “including the weapons theory of second-degree assault.”
Reconsideration allowed; former opinion modified
and adhered to as modified.
“(2) Raymond Blaine Stone knowingly caused physical injury to [G] by
means of a dangerous weapon.”
