State v. Jones

246                     August 7, 2024                  No. 546

   This is a nonprecedential memorandum opinion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.
             KEYSHANN MARQUISE JONES,
                  Defendant-Appellant.
             Washington County Circuit Court
                  21CR28239; A177680

   Janelle F. Wipper, Judge.
   Submitted December 11, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
   MOONEY, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2024)                          247

          MOONEY, J.
         Defendant appeals convictions for two counts of
second-degree assault constituting domestic violence, ORS
163.175 (Counts 1 and 8), and three counts of unlawful use
of a weapon (UUW) constituting domestic violence, ORS
166.220 (Counts 2, 6, and 9), following a bench trial.1 He
raises seven assignments of error. We affirm.
         Defendant’s convictions stem from three separate
altercations with his girlfriend, L. In the first, defendant
threw a perfume bottle that struck L in the head, causing L
to bleed and experience pain for several weeks. In the second, defendant swung a broom at L several times, but failed
to make contact. In the third, defendant punched L in the
face, stomped on her back, and struck her with a belt.
          In his first two assignments of error, defendant
asserts that the trial court erred in finding defendant guilty
of second-degree assault (Counts 1 and 8) because it did not
determine whether defendant was criminally negligent with
respect to the physical-injury element of the offense, which
the state was required to prove under ORS 163.175. See
State v. Owen, 

, 

 (2022) (applying a culpable mental state to the physical injury element of
ORS 163.175). But defendant did not make that argument
before the trial court. He instead argued that the state was
required to prove that he knew that his conduct would cause
physical injury. That argument did not sufficiently alert
the court or the state to defendant’s position that the court
was, at minimum, required to find criminal negligence. It
is significant that after making its findings the trial court
asked the parties whether there were “[a]ny other questions
or clarifications needed[,]” and that defendant responded in
the negative. Because it is not plain on this record that the
trial court based its verdict on an erroneous understanding of the law, Ailes v. Portland Meadows, Inc., 

, 

 (1991), we reject defendant’s first and
second assignments of error.

    1
      Defendant was found guilty on Counts 3, 4, 5, and 7; those counts were
merged with the counts on which convictions were entered and are not before us
on appeal.
248                                              State v. Jones

          In assignments of error three through five, defendant asserts that the trial court “erred by failing to instruct
itself” that it had to find that defendant knew or was criminally negligent in failing to know that the perfume bottle,
the broomstick, and the belt were dangerous weapons for
the purposes of UUW (Counts 2, 6, and 9). Defendant concedes that the issue was not raised below. He argues, however, that the trial court plainly erred because it is obvious
from the record that the trial court must not have applied
the requisite culpable mental state to the dangerous weapon
element of UUW. We reject that argument. The trial court
found that “based on the manner [in] which the broom, belt
and perfume bottle [were] used in this case, [they] could
have caused serious physical injury ….” At a minimum,
the trial court expressed its view that the defendant used
the broom, the belt, and the perfume bottle in such a manner as to cause or threaten serious physical injury to L. We
conclude that there is little likelihood that a self-instruction
on criminal negligence would have affected the verdict. See
State v. Stone, 

, 

 (2023)
(declining to conclude that failing to give the instruction
was plain error because any error was harmless). Given the
court’s finding and the record, we are not persuaded that if
it had instructed itself concerning criminal negligence, the
trial court would not have concluded beyond a reasonable
doubt that defendant “fail[ed] to be aware of a substantial
and unjustifiable risk” that “constitutes a gross deviation
from the standard of care that a reasonable person would
observe in the situation.” ORS 161.085(10). Thus, to the
extent that the trial court committed instructional error, it
was harmless.
         In his sixth assignment, defendant challenges the
trial court’s failure to merge the UUW verdict on Count 2 into
the second-degree assault conviction on Count 1. In his seventh assignment of error, he likewise challenges the court’s
failure to merge the UUW verdict on Count 9 into the second-degree assault conviction on Count 8. ORS 161.067, sometimes
referred to as the anti-merger statute, provides, as relevant:
      “(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision
   requires proof of an element that the others do not, there
Nonprecedential Memo Op: 

 (2024)             249

   are as many separately punishable offenses as there are
   separate statutory violations.”
That statutory provision “authorizes separately punishable
offenses when three conditions are met: (1) the defendant’s
actions qualify as the same conduct or criminal episode;
(2) the defendant’s actions violate more than one separate
statutory provision; and (3) each separate statutory provision requires proof of an element that the other provision(s)
do not.” Martinez v. Cain, 

, 

(2020). We, thus, begin with the UUW and second-degree
assault statutes.
         ORS 166.220 provides, as relevant:
     “(1) A person commits the crime of unlawful use of a
   weapon if the person:
      “(a) Attempts to use unlawfully against another, or
   carries or possesses with intent to use unlawfully against
   another, any dangerous or deadly weapon as defined in
   ORS 161.015[.]”
As charged, the elements of UUW on Counts 2 and 9 are (1)
carrying or possessing; (2) a dangerous or deadly weapon;
(3) with intent to use it unlawfully; (4) against another. See
State v. Alvarez, 

, 

 (2010),
rev den, 

 (2011) (similarly describing elements of
UUW). In Count 2, the alleged dangerous weapon is a belt,
and in Count 9, it is a perfume bottle.
         ORS 163.175 provides, as relevant:
      “(1) A person commits the crime of assault in the second degree if the person:
      “…
       “(b) Intentionally or knowingly causes physical injury
   to another by means of a deadly or dangerous weapon[.]”
The elements of the crime of second-degree assault are,
therefore, (1) intentionally or knowingly; (2) causing physical injury; (3) to another; (4) by means of a deadly or dangerous weapon. See Alvarez, 

 (similarly
describing elements of first-degree assault).
250                                             State v. Jones

         Second-degree assault contains an element that
UUW does not—causing physical injury. UUW likewise
contains an element that second-degree assault does not—
carrying or possessing a dangerous or deadly weapon. See
Alvarez, 

 (reaching the same conclusion
and explaining that “[i]t is possible to inflict … physical
injury with a dangerous or deadly weapon without either
possessing or carrying it”). Because second-degree assault
and UUW each require proof of an element that the other
provision does not, the trial court did not err when it declined
to merge those convictions.
        Affirmed.