No. 881 October 8, 2025 137
This is a nonprecedential memorandum opinion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.
BRYON KEITH GREISS,
Defendant-Appellant.
Morrow County Circuit Court
22CR35488; A182502
Jon S. Lieuallen, Judge.
Submitted August 20, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin Carveth, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney General,
filed the brief for respondent.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
JOYCE, J.
Remanded for resentencing; otherwise affirmed.
138 State v. Greiss
JOYCE, J.
Defendant appeals from a judgment of conviction for
strangulation, coercion, fourth-degree assault, and harassment. In defendant’s first assignment of error, which relates
to his fourth-degree assault conviction, defendant contends
that the trial court plainly erred by not instructing the jury
that the state was required to prove that defendant had
acted with at least criminal negligence as to the physical
injury element of the crime. Defendant also raises five additional assignments of error related to his sentencing.
As to defendant’s first assignment of error, the state
concedes—and we agree—that the trial court plainly erred
by failing to properly instruct the jury as to the requisite
mental state for the “physical injury” element of fourth-degree assault. State v. Owen, 369 Or 288, 322,
505 P3d 953
(2022) (holding in a prosecution for second-degree assault
that “the state, at a minimum, must prove that a defendant
was criminally negligent with respect to the injury caused
by the defendant’s actions”). But we decline to exercise our
discretion to correct this error because there is little likelihood that the error affected the jury’s verdict. State v.
Horton,
327 Or App 256, 264-66,
535 P3d 338 (2023) (“Even
if an error does not qualify as ‘harmless,’ ” meaning that
there is some “likelihood” that the error would have affected
the verdict, plain-error review is unwarranted where that
likelihood is “extremely low.”). Framed slightly differently,
even if the trial court had not erred, there is an extremely
low likelihood that the jury would not have concluded from
the evidence that defendant was at least criminally negligent as to whether he caused the victim physical injury.
The evidence showed that during the attack, defendant pushed the victim up against a wall and started to
strangle her by putting his hands around the victim’s throat
and “[s]queezing it pretty hard,” telling her he “could have
killed [her].” The victim could not breathe and felt like she
was “blacking out.” After defendant let go of the victim’s
neck, defendant “pushe[d the victim] up in the corner of the
kitchen,” which resulted in the victim cutting her foot. After
the attack, the victim experienced significant pain in her
neck and chest and had black and blue marks on her neck in
Nonprecedential Memo Op: 344 Or App 137 (2025) 139
the form of defendant’s handprint that took a month or two
to dissipate.
Given that evidence of defendant’s violent conduct
towards the victim, we conclude that there was an “extremely
low likelihood” that the jury would not have found that
defendant had acted with at least criminal negligence with
respect to the physical injury element of the crime, regardless of whether the jury had been properly instructed on the
requisite mental state. Therefore, we decline to exercise our
discretion to correct the trial court’s plain error. See, e.g.,
State v. Sell, 328 Or App 82, 95-96,
536 P3d 1019 (2023),
rev den,
372 Or 63 (2024) (refusing to exercise discretion to
correct a similar instructional plain error because, given
the facts, “there [was] an extremely low likelihood that the
jury would not have found that [the] defendant was at least
criminally negligent with respect to the injury element of
the crime”); see also State v. Dehaven,
333 Or App 389, 392-
93,
553 P3d 62, rev den,
373 Or 81 (2024) (where evidence
showed that the defendant “straddled” the victim on the floor
and “strangl[ed] her,” it would be “extremely likely that, had
it been properly instructed, the jury would have found that
[the] defendant was at least criminally negligent in causing
[the victim] physical injury”).
As to defendant’s five sentencing-related claims of
error, the state concedes that the trial court erred in including previously unannounced terms in the sentencing judgment, including the trial court’s imposition of both special
conditions of probation (assignments of error four and five)
and per diem fees (assignment of error six). We accept the
state’s concession on those claims of error and remand for
resentencing. This conclusion obviates the need to address
defendant’s second and third assignments of error, each of
which also relate to purported sentencing errors; defendant
can raise, and the trial court can address, those issues on
remand.
Remanded for resentencing; otherwise affirmed.
