State v. Huckabee

314                  September 10, 2025                 No. 801

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                 LEE MILLS HUCKABEE,
                   Defendant-Appellant.
                 Coos County Circuit Court
                   21CR52266; A178166
   Andrew E. Combs, Judge.
   Submitted April 30, 2024.
   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 Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Affirmed.
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         ORTEGA, P. J.
         This is a criminal appeal in which defendant
seeks reversal of his convictions for seven counts of varying degrees of assault and two counts of unlawful use of
a weapon (UUW).1 In a plain-error posture and in eight
assignments of error, defendant asserts that the trial court
erred by failing to instruct the jury that a culpable mental
state requirement applies to the injury element of assault
and to the dangerous weapon elements of assault and UUW.
         The state concedes that the trial court plainly erred
by not instructing the jury on the culpable mental state as to
the injury element in the three convictions for second-degree
assault (Counts 2, 3, and 8), but it contends that defendant did
not prove the requisite prejudice that would warrant plain-error review. We accept the state’s concessions as to Counts
2, 3, and 8, but are not persuaded to exercise our discretion
to correct the errors on this record. We also conclude that
the failure to instruct the jury on a culpable mental state as
to the dangerous weapon element of second-degree assault
was plain error, but are likewise not persuaded to exercise
our discretion to correct that error. Finally, the failure to
instruct the jury as to a culpable mental state for the injury
elements of first-degree assault, fourth-degree assault, and
the dangerous weapon element of first-degree assault and
UUW were not plain errors because they are either not obvious or not beyond reasonable dispute, or they are not apparent on this record. State v. Vanornum, 

, 

 (2013) (“For an error to be plain error, it must be
an error of law, obvious and not reasonably in dispute, and
apparent on the record without requiring the court to choose
among competing inferences.”). Therefore, we affirm.
        Defendant was convicted of seven counts of assault,
two counts of UUW, and two counts of recklessly endangering
    1
      Defendant was convicted of one count of first-degree assault, ORS 163.185
(Count 1); three counts of second-degree assault, ORS 163.175 (Count 2, 3, and 8);
three counts of fourth-degree assault, ORS 163.160 (Counts 4, 10, and 14); two
counts of UUW, ORS 166.220 (Counts 5 and 15); and two counts of recklessly
endangering another person, ORS 163.195 (Counts 6 and 12). Defendant appeals
his convictions in counts 1 through 5, count 8, count 10, count 14, and count 15.
We note that both ORS 163.185 and ORS 163.160 have been amended since defendant committed his crimes; however, because those amendments do not affect our
analysis, we refer to the current version of the statutes in this opinion.
316                                          State v. Huckabee

another person following a domestic violence altercation
involving his stepfather D, mother G, and twin brother L.
Defendant was loudly preaching on the family’s porch, and
G and D tried to persuade defendant to quiet down or leave.
When G placed her hands on defendant’s hair, he punched
her in the face, causing her to briefly lose consciousness and
her teeth to go through her lip, requiring multiple layers of
stitches. When G regained consciousness, she heard what
she described as “wet hitting,” and eventually saw D on
the ground, unconscious with his face covered in blood. D
suffered multiple orbital bone fractures, a broken nose that
required surgery, and a traumatic brain injury. Neither G
nor D remembered seeing defendant holding any object to
hit the two of them.
        Defendant’s twin brother L saw defendant punch
G in the stomach twice from above while she lay on the
ground. L tackled defendant to the ground and punched him
repeatedly. As L tried to get G and D into the house, defendant struck L in the neck twice with a black handled object.
Defendant and L again fought and, as defendant tried to
enter the house, L grabbed a BB gun and swung it at defendant. They wrestled briefly before neighbors came to assist
G and D, and defendant eventually ran away.
         At trial, defendant asserted a theory of self-defense
regarding his altercations with L, and argued that G and D
sustained their injuries when D tripped and fell into G. The
jury was instructed on the plain language of each applicable statute, as well as on definitions for each culpable mental state and various elements. As an example, for second-degree assault, the jury was instructed as follows:
   “Oregon law provides that a person commits the crime of
   assault in the second degree if the person knowingly causes
   serious physical injury to another. 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 May 8, 2021; and (2) [Defendant]
   knowingly caused serious physical injury to [victim].”
The jury was not instructed that a culpable mental state
must be found for each material element of the offense.
Defendant did not object to the jury instructions at trial,
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but now argues on appeal that the trial court plainly erred
by failing to instruct the jury that the culpable mental state
applies to the injury element of assault and to the dangerous
weapon element of assault and UUW.
         We agree with defendant that, as the state concedes, not instructing the jury on a culpable mental state
for the injury element of second-degree assault was plain
error. State v. Owen, 

, 

 (2022)
(holding that the result element of second-degree assault is
a material element that requires proof of at least criminal
negligence, and that the defendant was entitled to such an
instruction); see also State v. McKinney/Shiffer, 

, 

 (2022) (holding that a trial court’s failure
to instruct the jury on a minimum culpable mental state
of criminal negligence for second-degree assault constituted
plain error because the error is one of law, is obvious and not
reasonably in dispute, and was apparent on the record).
         Defendant urges us to extend the reasoning of
Owen and McKinney/Shiffer to conclude that the lack of a
jury instruction on the culpable mental state for the result
element of first-degree and fourth-degree assault is likewise plainly erroneous. We decline to do so on this record.
The alleged errors are not apparent on this record because
the culpable mental states that attach to first-degree
and fourth-degree assault—intentionally and recklessly,
respectively—are distinguishable from knowingly. The definitions of both those mental state, unlike the definition of
knowingly, incorporate some objective to cause a particular result.2 Because the jury was instructed on the culpable
mental state definitions and the elements of those offenses,
we are not prepared to conclude that any error is apparent
on this record.
        The same reasoning applies to the dangerous
weapon element of first-degree assault; that is, the jury
instructions for the definition of intentionally and the
     2
       The jury instructions included the following definitions for (1) intentionally, and (2) recklessly: (1) “A person acts ‘intentionally’ or ‘with intent’ when
that person acts with a conscious objective to cause a particular result or engage
in particular conduct;” (2) “A person acts recklessly if that person is aware of
and consciously disregards a substantial and unjustifiable risk that a particular
result will occur or circumstance exists.”
318                                         State v. Huckabee

elements of the crime, taken together, could have informed
the jury of the requisite culpable mental state as to the dangerous weapon element of the offense, and error, thus, is not
apparent on this record. Because those errors are not apparent on this record given the combined instructions, we conclude that any errors in failing to instruct the jury on the
culpable mental state for the result element of first-degree
and fourth-degree assault and the dangerous weapon element of first-degree assault were not plain.
         Defendant also contends that the trial court plainly
erred in not instructing the jury on the culpable mental state
regarding the dangerous weapon element of second-degree
assault, and we agree. We have previously held that a trial
court errs in not instructing the jury that it “was required
to find that [the] defendant knew that the [weapon] was
a dangerous weapon.” State v. Higginbotham, 

, 

 (2019) (applying State v. Fletcher,

, 

 (2014), which held that to
establish second-degree assault, the state must prove that
the defendant had intent or knowledge with regard to the
nature of the weapon). Because the error is one of law, we
have case law directly on point, making the error obvious
and not reasonably in dispute, and the error is apparent on
the record, that instructional error is plain.
         We now consider whether the four plain errors we
have recognized were harmless and, if not, whether we
should exercise our discretion to correct them. We must
affirm a conviction if there is “little likelihood that the particular error affected the verdict.” State v. Davis, 

, 

 (2003). “In the mental-state context in particular, the pertinent inquiry ‘is not whether a jury could
have found defendant to have the requisite mental state on
this record; rather, it is whether there is some likelihood
that the jury might not have been persuaded that he had
the requisite mental state, had it considered that issue.’ ”
State v. Horton, 

, 

 (2023)
(quoting State v. Stone, 

, 

(2023) (emphasis in original)).
        Applying appropriate caution to examination of when
a jury is not instructed on the culpable mental state of a
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(2025)                                 319

material element of an offense, we conclude that the errors
were harmless as to Counts 2 and 3, but not as to Count 8. See
Horton, 

 (recognizing the challenge of the
harmlessness analysis regarding jury instructions because
“we must be extremely wary of usurping the jury’s function”).
Counts 2 and 3 were charged on the same facts as Count 1,
first-degree assault against D. Because the jury found that
defendant intentionally used a dangerous weapon to cause
serious physical injury as to Count 1, the jury could not have
found that defendant did not act with the requisite mental
state for the elements of second-degree assault, even if properly instructed. However, this record does not contain similar facts that would allow us to conclude with the requisite
degree of certainty that the jury would have reached the same
findings if properly instructed as to Count 8, second-degree
assault against G, however likely that might be. Cf. State v.
Scatamacchia, 

, 

 (2022), rev den,

 (2023) (“Ultimately, the jury necessarily found
that [the] defendant deliberately and unjustifiably punched
[the victim’s] face multiple times from above with enough force
to cause extensive injuries. Consequently, there is little likelihood that the jury would not have found that there was a substantial and unjustifiable risk that [the victim] would suffer
protracted disfigurement, impairment of health, or impairment of bodily function as a result of his punches.”).
          Because the court plainly erred, and the failure to
instruct the jury on Count 8 was not harmless, we now consider whether on this record, we would exercise our discretion to correct that error. See Ailes v. Portland Meadows, Inc.,

, 

 (1991) (explaining plain error
review). Our case law requires us to “balance the gravity of
any error, in the context of the nature of the case, against
the other factors set forth in Ailes,” and in other plain-error
cases. State v. Inman, 

, 

(2015), rev den, 

 (2016) (internal quotation marks
omitted). Those other factors include but are not limited to
“the competing interests of the parties; the nature of the
case; … how the error came to the court’s attention; and
whether the policies behind the general rule requiring preservation of error have been served in the case in another
way ….” Ailes, 

 n 6.
320                                            State v. Huckabee

         In this case, we are not persuaded to exercise our
discretion to correct the instructional error. Viewing the
record as a whole, the evidence of the assaultive conduct and
resulting injuries in this case, and the absence of an alternative theory at trial as to defendant’s mental state regarding the result of his conduct, the likelihood that the verdict
would have been different “is an extremely low likelihood.”
Horton, 

; see 

 (declining to exercise discretion to correct the trial court’s error in failing to instruct
the jury on the culpable mental state requirement for the
value element of criminal mischief); see also Inman, 

 (“[T]he error in this case was not particularly
grave, in terms of its likelihood of affecting the verdict ….”);
cf. McKinney/Shiffer, 

 (considering McKinney’s
theory of defense at trial, that the injury was accidental, as
a factor in deciding to exercise discretion to correct a plain
instructional error); State v. Hatchell, 

,

 (2022) (exercising discretion to correct instructional error where defendant’s theory of defense was that he
did not have the requisite mental state to cause the victim’s
particular injuries because they were the result of incidental contact with his shin).
         Affirmed.