State v. Abel

No. 449                 June 26, 2024                        521

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                 JONATHON TROY ABEL,
                   Defendant-Appellant.
                Harney County Circuit Court
                   21CR02504; A178522

   Robert S. Raschio, Judge.
   Submitted May 31, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie 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 Joyce, Presiding Judge, Lagesen, Chief Judge, and
Armstrong, Senior Judge.
   JOYCE, P. J.
   Affirmed.
522                                              State v. Abel

        JOYCE, P. J.
         Defendant appeals from a judgment of conviction for
felony fourth-degree assault constituting domestic violence
(Count 1), ORS 163.160(3)(c), ORS 132.586; and harassment
(Count 2), ORS 166.065(3). He raises one assignment of
error, in which he argues that the trial court plainly erred
by failing to instruct the jury that, to find defendant guilty,
it had to find that defendant was at least criminally negligent as to the “physical injury” element of fourth-degree
assault. The state argues that the trial court did not err,
much less plainly err. We affirm.
         We may consider an unpreserved error if the error
is plain. Ailes v. Portland Meadows, Inc., 

,

 (1991). Defendant’s argument that the trial
court plainly erred rests on several cases that have held,
in the context of second- and third-degree assault, that the
charged mental state of “knowingly” does not attach to the
physical injury element, because that mental state does not
apply to result elements. State v. McKinney/Shiffer, 

, 

 (2022); State v. Owen, 

, 

 (2022); see ORS 161.085(8) (defining “knowingly” as
attaching to conduct or to a circumstance). In that context,
because each material element of a crime must have a corresponding mental state unless the legislature has expressly
dispensed with one, Owen and McKinney/Shiffer held that
juries must be instructed on a mental state of at least criminal negligence for the physical injury element. Owen, 

; McKinney/Shiffer, 

. Criminal
negligence is the least culpable of three possible mental
states that can apply to a result element. Owen, 

. By its definition, recklessness is another of the possible mental states that applies to a result element. ORS
161.085(9).
         Based on that understanding of Owen and
McKinney/Shiffer, we recently held that a trial court does
not plainly err when it instructs a jury—as to a fourth-degree assault charge where the state has alleged that a
defendant recklessly caused physical injury—that it must
apply a mental state of recklessness for “causes physical
injury,” and does not give an instruction applying criminal
Nonprecedential Memo Op: 

 (2024)           523

negligence to the physical injury element of that crime.
State v. Raney, 

, 702, 

 (2024). We
likewise conclude that the trial court did not plainly err in
this case when it instructed the jury that, to find defendant
guilty of fourth-degree assault, it had to find that defendant
recklessly caused physical injury to the victim.
        Affirmed.