State v. James

No. 950            December 26, 2024                  157

   This is a nonprecedential memorandum opinion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.
                SEAN BLAINE JAMES,
                 Defendant-Appellant.
               Lane County Circuit Court
                 22CR52218; A180916

  Charles M. Zennaché, Judge.
  Submitted November 19, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, 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 Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  KAMINS, J.
  Affirmed.
158                                                          State v. James

           KAMINS, J.
          Defendant appeals a judgment of conviction for
second-degree assault, ORS 163.175. She argues1, and we
agree, that the trial court plainly erred by failing to instruct
the jury as to the requisite mental state for the elements
of physical injury and dangerous weapon. See ORS 163.175
(1)(b); State v. Owen, 

, 

 (2022)
(jury must be instructed as to requisite mental state for
each material element of a crime).
         However, we must affirm despite the trial court’s
error “if we determine that ‘there was little likelihood that
the error affected the verdict.’ ” State v. Shedrick, 

, 

 (2022) (quoting Owen, 

).
Given that defendant stabbed the victim with the blade of
a disassembled scissors—up to its handle—near the victim’s collarbone, there is little likelihood that the jury would
have found that defendant was not at least negligent to the
risk the victim would be injured. ORS 161.085(10); State
v. Scatamacchia, 

, 

 (2022),
rev den, 

 (2023) (considering whether the circumstances “gave rise to a substantial risk” that the victim of
assault would be injured). Nor could a jury plausibly have
concluded that defendant was not aware that the blade of
a scissors, when stabbed near someone’s collarbone, was
“readily capable of causing death or serious physical injury.”
ORS 161.015(1).
           Affirmed.




   1
     We reject defendant’s third assignment of error because, as defendant
acknowledges, it is foreclosed. State v. Sawatzky, 

, 

 (2005).