State v. Ramirez

No. 568                August 14, 2024                       391

   This is a nonprecedential memorandum opinion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.
               DANIEL EDWARD RAMIREZ,
                  Defendant-Appellant.
                Lane County Circuit Court
                  21CR00266; A178672

   Stephen W. Morgan, Judge.
   Submitted November 20, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Affirmed.
392                                                      State v. Ramirez

           ORTEGA, P. J.
         Defendant raises a single assignment of error
challenging his conviction for second-degree assault, ORS
163.175.1 He argues that the trial court plainly erred when
it failed to instruct the jury that a culpable mental state
of at least criminal negligence attached to the seriousphysical-injury element. We agree that the trial court committed plain error. But for the reasons explained below,
we decline to exercise our discretion to correct that error.
Therefore, we affirm.
         To begin, we agree that the trial court committed
plain error. The trial court instructed the jury that, aside
from the approximate date of the crime, second-degree
assault consisted of a single element: that defendant “knowingly caused serious physical injury” to the victim. The
problem with the court’s description of that element is twofold. “First, it did not state that a defendant must knowingly
engage in assaultive conduct. Second, it did not state that a
defendant must be at least criminally negligent with respect
to causing injury.” State v. Raney, 

, 703, 

 (2024) (finding that “the court plainly erred by giving an unclear instruction that the jury was to find, as a
single element, that defendant ‘knowingly caused serious
physical injury’ ”).
         Next, we consider whether the error was harmless.
Because the mechanism of the victim’s injuries (specifically,
whether defendant punched the victim, kicked her, stomped
on her, or all of the above) was somewhat ambiguous, we
hesitate to say that the error was harmless. See State
v. Pfannenstiel, 

, 595, 

 (2024)
(concluding that error was not harmless where the precise
mechanism of injury was ambiguous and, had it been properly instructed, the jury would have had to resolve that
ambiguity in order to consider whether the defendant acted
with criminal negligence regarding the extent of injury).
Ultimately, however, we need not decide whether the error
was harmless or not because we decline to exercise our discretion to correct the trial court’s error.
    1
      As charged in this case, second-degree assault occurs when a person “knowingly causes serious physical injury to another.”
Nonprecedential Memo Op: 

 (2024)                393

         We decline to do so because, even if there is some
likelihood that the verdict would have been different if the
court correctly instructed the jury, “it is an extremely low
likelihood.” State v. Horton, 

, 

 (2023); see also 

 (“[O]ur assessment of where
[a given error] falls on the spectrum of ‘likelihood’ of having
affected the verdict can be an important consideration to the
exercise of discretion. The likelihood that the error affected
the outcome goes to its ‘gravity’ and to ‘the ends of justice.’ ”).
In assessing the likelihood that the verdict was impacted
by the court’s failure to instruct on a mental state, “we consider the instructions ‘as a whole and in the context of the
evidence and record at trial, including the parties’ theories
of the case with respect to the various charges and defenses
at issue.’ ” Raney, 331 Or App at 704 (quoting State v. Owen,

, 

 (2022)). Here, defendant was
charged on the theory that he knowingly caused serious
physical injury. Eyewitnesses of the assault described defendant’s assaultive conduct in various ways: that he “kick[ed]”
and “punched” the victim, that he “stomp[ed]” on her a “couple of times,” and that he “beat[ ] the crap out of” her. The
vast majority of the evidence showed that his conduct was
aimed at the victim’s head, which sustained grievous injuries in the attack. Meanwhile, defendant raised a mistakenidentity defense. In other words, he presented evidence that
he was simply an innocent bystander who was mistakenly
identified as the assailant.
        We conclude that the likelihood that the error
affected the verdict is extremely low because defendant’s
defense did not turn on the nature of the assaultive conduct
or the possibility of a nonculpable mental state, and given
the nature of the assaultive conduct described by the eyewitnesses, we believe that it is extremely unlikely the jury
would have found that defendant was not at least criminally
negligent with regard to the risk of serious physical injury
that resulted from that conduct.
         Affirmed.