State v. Nagy

No. 1135            December 31, 2025                  149

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              BRANDON MATTHEW NAGY,
                  Defendant-Appellant.
             Washington County Circuit Court
                  19CR43652; A178921

  Erik M. Bucher, Judge.
  Argued and submitted July 16, 2024.
   David Sherbo-Huggins, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Oregon
Public Defense Commission.
   Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
   Conviction on Count 1 reversed and remanded; conviction on Count 6 reversed and remanded with instructions to
enter a finding of guilt on fourth-degree assault; remanded
for resentencing; otherwise affirmed.
150   State v. Nagy
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        ORTEGA, P. J.
          A jury found defendant guilty of first-degree assault
(Count 1), ORS 163.185, three counts of first-degree criminal mistreatment (Counts 2, 4, and 6), ORS 163.205, and
three counts of third-degree assault (Counts 3, 5, and 7),
ORS 163.165(1)(h), for injuring his girlfriend’s six-month-old
child, C, over the course of several days. On appeal from the
resulting judgment of conviction, he raises 10 assignments
of error. In his first seven assignments, defendant contends
that the trial court plainly erred in failing to instruct the
jury on the culpable mental state for the resulting “physical
injury” or “serious physical injury” element on each count.
In his eighth assignment, defendant argues that the trial
court erred in denying his motion to suppress his statements
to police after he received Miranda warnings. In his ninth
assignment, defendant contends that the trial court erred in
preventing him from cross-examining C’s mother, Johnson,
about an assault she allegedly directed against defendant,
for the purpose of establishing her bias. Finally, defendant
challenges the denial of his motion for judgment of acquittal
(MJOA) on Count 6 because, in his view, the state failed to
adduce sufficient evidence that he had knowingly “assumed
the permanent or temporary care, custody or responsibility
for the supervision of” C when he caused the physical injury
alleged in that count.
         Addressing his MJOA first, we conclude that the
state adduced insufficient evidence for a rational factfinder
to find that defendant knowingly assumed the care, custody,
or responsibility for the supervision of C when he caused the
physical injury alleged in Count 6. We next conclude that
the trial court did not err in denying defendant’s motion to
suppress because defendant initiated the conversation about
this case with police and validly waived his Miranda rights.
We reject defendant’s contention that the trial court committed reversible error in limiting his cross-examination
of Johnson, because the court allowed defendant to make
an initial showing of Johnson’s bias and her involvement in
the assault. Finally, as to defendant’s challenges to the failure to instruct the jury on the culpable mental state for the
resulting injuries, we accept the state’s concession that the
152                                             State v. Nagy

court erred and conclude that the errors were harmless as
to all counts but Count 1.
         Accordingly, we reverse defendant’s conviction on
Count 6 with instructions to enter a finding of guilt on the
lesser-included offense of fourth-degree assault. We also
reverse his conviction on Count 1, remand for a new trial on
that count and for resentencing, and otherwise affirm.
         To contextualize the parties’ arguments, we provide a brief overview of the historical facts and recite in our
analysis additional facts relevant to each assignment of error.
At the time of the charged incidents, defendant and Johnson
had been in an intimate relationship for a few months, and
they used methamphetamine and heroin together several
times per day. Johnson had a six-month-old son, C, and
between January 30 and February 10, 2017, C—who was
not independently mobile—suffered severe bruising around
his eyes and forehead (Counts 6 and 7); a broken jaw and
severe bruising on his earlobe and scalp (Counts 4 and 5);
severely swollen testicles and severe bruising around his
perineum and anus (Counts 2 and 3); and a seizure caused
by a subdural hematoma (Count 1). The state’s theory was
that defendant intentionally inflicted those injuries when he
was alone with C on four separate occasions. Defendant’s
theory was that Johnson inflicted C’s injuries. A jury found
defendant guilty of all seven counts.
      SUFFICIENCY OF EVIDENCE ON COUNT 6:
      FIRST-DEGREE CRIMINAL MISTREATMENT
          We address defendant’s tenth assignment of error
first because it provides more complete relief on Count 6
than his other assignments of error. State v. Paul, 

, ___ P3d ___ (2025). Defendant contends that
the trial court should have granted his MJOA on that count
of first-degree criminal mistreatment because, in his view,
the state failed to adduce sufficient evidence that he had
knowingly “assumed the permanent or temporary care,
custody or responsibility for the supervision of” C when he
caused the physical injuries alleged in that count (severe
bruising around C’s eyes and forehead).
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         As relevant to Count 6, ORS 163.205(1)(b)(A) provides that a person commits first-degree criminal mistreatment if:
      “(b) The person, … having assumed the permanent or
   temporary care, custody or responsibility for the supervision
   of a dependent person or elderly person, intentionally or
   knowingly:
      “(A) Causes physical injury or injuries to the dependent person or elderly person[.]”
(Emphasis added.)
         We review the denial of an MJOA for legal error,
viewing the evidence, as well as reasonable inferences and
credibility choices, in the light most favorable to the state to
determine whether a rational factfinder could have found the
essential elements of the crime beyond a reasonable doubt.
State v. Stevens, 

, 

 (2025).
         In accordance with that standard, the record contains the following evidence concerning the assumption-of-care element as to Count 6. On February 1, 2017, Johnson
noticed that C’s eyes started to blacken with dark purple
bruising that spanned around the side of his head to the bottom of his face. At trial, Johnson attributed that bruising to
an incident that had occurred a day or two before when defendant spent the night at her apartment. According to Johnson,
she and defendant were lying in bed late at night after doing
drugs. C was asleep in his crib in the bedroom, and Johnson’s
mother was sleeping in the other bedroom. Johnson got up
and went outside to smoke a cigarette, leaving the back door
open. When she left the room, defendant’s eyes were closed,
and she thought he was asleep. A few minutes later, Johnson
heard a loud “cracking” sound, so she rushed back into the
bedroom. C was screaming like he was in pain, and there was
a hard plastic crawl-ball in his crib that had not been there
before. Defendant was sitting on or standing next to the bed
and denied doing anything to upset C.
        At trial, defendant moved for judgment of acquittal on Count 6, arguing that the state failed to prove that
he “knowingly” assumed the permanent or temporary care,
custody, or responsibility for the supervision of C when
154                                           State v. Nagy

Johnson went outside to smoke. The court denied the motion
on the grounds that the state had presented evidence from
which the jury could infer that defendant was aware that he
was taking care of C.
          On appeal, defendant renews his argument that
there is insufficient evidence as a matter of law that he
knowingly assumed the temporary care, custody, or responsibility of C when he caused the bruising on C’s eyes and
head. Defendant contends that there is no evidence that he
had ever provided care for C before this incident or that he
had done so during the time when Johnson went outside
to smoke. The state responds that a reasonable factfinder
could infer that defendant had woken up and was alone with
C and that defendant assumed temporary care and responsibility for supervising C whenever he was alone with C.
          We recently construed the assumption-of-care element in ORS 163.205 in Paul. In that case, the defendant
stole a van that was left running and unattended and, at some
point while driving, noticed that there was a nine-month-old
baby in the backseat. 

. The defendant took
the baby out of his car seat and left him on the side of the
road, where he was found unharmed later that morning. 

         On appeal, the defendant challenged the denial of
his MJOA for first-degree criminal mistreatment, arguing
that there was no evidence to prove that he assumed care
of the baby with any culpable mental state. 

. In
construing ORS 163.205, we relied on the plain meaning of
“assume” (“to take upon oneself (to do or perform) : undertake”) to conclude that “assuming care is conduct involving
a physical act of the defendant.” 

. Accordingly, we
held that “the assumption of care is a conduct element, and
a default culpable mental state of knowledge applies.” 

. We explained that “[a] person who owes no legal
duty to a baby is not presumed to have any responsibility for
the baby absent some physical manifestation of assumption
of care,” meaning that “the adult engages in some conduct
by which they take temporary care of the child.” 

         Applying that understanding of the assumption-of-care element to the facts in Paul, we held that there was
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sufficient evidence to permit a jury to find that the defendant
knowingly assumed care of the baby that he subsequently
deserted. Id. at 352. We reasoned that “[a] jury could find
that, after [the] defendant became aware of [the baby]’s presence, he knowingly assumed care of the infant at least by the
time he made the conscious decision to leave him in a dangerous and secluded area, if not earlier when he continued to
drive with an awareness that [the baby] was in the backseat.”
Id. We pointed to evidence of the defendant’s affirmative acts
after he was aware of the baby’s presence from which the jury
could find that he physically manifested the assumption of
care, including continuing to drive with the baby in the backseat and removing the baby from the car to abandon him. Id.
          We reach a different conclusion in this case. Here,
we agree with defendant that there is no evidence that he
engaged in an affirmative act by which he took temporary
care or responsibility for the supervision of C when Johnson
went outside to smoke. There is no evidence that defendant
had cared for C or agreed to care for C on or before that night.
And Paul forecloses the state’s argument that the jury could
reasonably infer that defendant assumed temporary care and
responsibility for supervising C whenever he was alone with
C. Our construction of the assumption-of-care element in ORS
163.205 requires the defendant to engage in some affirmative act that manifests the assumption of care; another person’s affirmative act—such as Johnson’s leaving C alone with
defendant—is insufficient to establish that element without
more. Finally, although the jury could reasonably infer that
defendant woke up and injured C with the crawl ball after
Johnson left to smoke, neither of those affirmative acts supports a finding that defendant undertook the temporary care
or responsibility for the supervision of C while Johnson was
out of the room.1 We therefore conclude that the trial court
erred when it denied defendant’s MJOA on Count 6.

    1
      Indeed, Paul strongly suggests that because there are two actions subsumed in the conduct element in ORS 163.205—one that creates the legal duty
to the victim and one that causes harm to the victim—the act of causing harm
cannot itself be the same act that manifests the assumption of care, even if there
is overlapping evidence to support each element. See 

 (“As set
out in the statute …, the conduct of criminal mistreatment involves two actions
on the part of the criminal actor—assuming care and failing to provide care in
some way.” (Emphasis in original.)).
156                                                           State v. Nagy

         Because defendant does not challenge the sufficiency of the evidence that he caused the physical injury to
C underlying Count 6, we reverse defendant’s conviction on
that count with instructions to enter a finding of guilt for
fourth-degree assault. See State v. Rodvelt, 

, 

, rev den, 

 (2003) (accepting the
state’s concession that “all of the elements of fourth-degree
assault are necessarily included in the type of criminal mistreatment with which [the] defendant was charged”).2
                  MOTION TO SUPPRESS
         In his eighth assignment, defendant argues that
the trial court erred in denying his motion to suppress his
statements to police after he received Miranda warnings.
We conclude that the trial court did not err because defendant initiated the discussion about this case with police and
validly waived his Miranda rights.
         We review the denial of a motion to suppress for
legal error. State v. Rodriguez, 

, 

 (2025). In doing so, we defer to findings of fact that
are supported by constitutionally sufficient evidence in the
record. 

 We state the evidence presented at the suppression hearing in accordance with that standard.
         On February 10, 2017, C was transported to the hospital after defendant and Johnson called 9-1-1. On February
13, defendant went to the Hillsboro Police Department and
spoke to Detectives Kamenir and Buell about C’s injuries.
At the beginning of the interview, Kamenir told defendant
he was free to leave and read defendant his Miranda rights,
and defendant said he understood his rights. The interview
ended when defendant invoked his right to have counsel
present for interrogation.
        On February 18, defendant reported to police that
he had been the victim of an assault the day before. During
that investigation, police learned that defendant had an
outstanding probation violation warrant and arrested him
    2
      The jury also found defendant guilty of third-degree assault (Count 7) for
causing the bruising to C’s eyes and head, which required the jury to find that
defendant was at least 18 years old and caused physical injury to a child aged 10
or younger, ORS 163.165(1)(h). On remand, the finding of guilt for fourth-degree
assault in Count 6 will likely merge with the finding of guilt on Count 7.
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on that warrant. While defendant was in custody at the
Hillsboro Police Department, Kamenir advised him of his
Miranda rights and began interviewing him about the
assault. Several minutes into the interview, as defendant
described someone hitting him, he referred to C’s injuries and offered information about Johnson related to that
investigation:
       “[DEFENDANT]: B]ecause this is—this is her—this
  is the kid—little boy’s dad (indiscernible) because of that—
  they think that I did that to this little boy. So—and I—I
  didn’t—(indiscernible) nothing about it. … I didn’t do
  it. (Indiscernible), but there’s things I’ve—that I’ve wanted
  to tell you that [Johnson]—I’ve seen with [Johnson] that I
  (indiscernible).
      “DETECTIVE KAMENIR: Okay. Well, you remember
  the last time you said you wanted a lawyer, and you didn’t
  want to talk. That’s been a few days, okay? So do you want
  to talk about it—that incident now or—
    “[DEFENDANT]: I mean, I—I totally (indiscernible)
  whatever, you know.
     “DETECTIVE KAMENIR: Okay. Well, I—
     “[DEFENDANT]: I’m not—I’m not going to get beat
  up over—over this (indiscernible) thinks that I did something I didn’t do.
     “DETECTIVE KAMENIR: I want to be perfectly clear
  because last time you said you wanted a lawyer, so you’re
  saying now you’re willing to talk to me about it without a
  lawyer.
     “[DEFENDANT]: Yeah, I wanted to talk to you, yes.”
Defendant briefly told Kamenir about Johnson’s drug
use, and Kamenir interjected to again read defendant his
Miranda rights, after which defendant said he understood.
Defendant did not invoke his right to silence or right to
counsel in the remainder of the interview.
        Before trial, defendant moved to suppress his
February 18 statements to police, arguing that they were
obtained in violation of his Miranda rights under the state
and federal constitutions. After hearing the foregoing evidence, the trial court denied the motion. The court agreed
158                                                            State v. Nagy

with the state that Kamenir did not question defendant
about C’s injuries until defendant initiated the discussion
on that topic, that Kamenir reread defendant his rights,
and that defendant knowingly and voluntarily waived those
rights.
         Article I, section 12, of the Oregon Constitution and
the Fifth Amendment to the United States Constitution
protect against compelled self-incrimination.3 State v. Boyd,

, 

 (2016); Miranda v. Arizona, 

, 

, 

 (1966). Given the
significant overlap in the analysis under both the state and
federal constitutions, we consider United States Supreme
Court cases analyzing the Fifth Amendment as persuasive
authority for our Article I, section 12, analysis. Boyd, 

 (noting that Article I, section 12, case law “has
relied heavily on federal Fifth Amendment doctrine”). We
evaluate defendant’s Article I, section 12, argument first
and do not separately address his argument under the Fifth
Amendment because the applicable legal standard is the
same under that provision.
          “To protect a person’s right against compelled self-incrimination under Article I, section 12, before interrogating a person in custody, police must provide the person
with the same type of warnings that are required by the
Fifth Amendment under Miranda[.]” State v. Fink, 

, 

 (2017). Whether police questions
constitute “interrogation” for Article I, section 12, purposes
depends on “whether the nature of the police questioning
was such that it was reasonably ‘likely to elicit an incriminating response.’ ” Boyd, 

 (quoting Rhode Island
v. Innis, 

, 

, 

 (1980)).
         “[O]nce a suspect has invoked the rights to remain
silent and to counsel under Article I, section 12, police must
immediately cease interrogation[.]” 

. “However,
after a suspect in custody has asserted the right to counsel,
‘the suspect remains free to waive that right by initiating

    3
      Article I, section 12, provides that “[n]o person shall … be compelled in
any criminal prosecution to testify against himself.” The Fifth Amendment provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.”
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further contact with the police.’ ” Fink, 

(quoting State v. Acremant, 

, 

,
cert den, 

 (2005)). To establish that a suspect has
waived a prior invocation of the right to counsel, “the state
must show not only that the suspect initiated communication with the police in a way that ‘evinced a willingness and
a desire for a generalized discussion about the investigation’
but also that the suspect’s waiver was knowing and voluntary under the totality of the circumstances.” Id. (quoting
State v. Meade, 

, 

 (1998)); see
also Edwards v. Arizona, 

, 486 n 9, 

,

 (1981) (holding that for a waiver of the right
to counsel to be valid, a “necessary fact [is] that the accused,
not the police, reopened the dialogue with the authorities”).
“A defendant ‘initiates’ further contact with law enforcement, for purposes of a waiver analysis, when they make
affirmative efforts to engage law enforcement on the matter for which they previously invoked a constitutional right.”
Rodriguez, 

 (collecting cases).
         Here, the parties appear to agree that the trial court
implicitly found that defendant was subjected to custodial
interrogation about C’s injuries at the February 13 interview and that he unequivocally invoked his right to counsel.
There is also no dispute that defendant was in custody on
February 18 when Kamenir interviewed him as the victim
of an assault. The parties disagree about whether defendant
initiated further communication with Kamenir about C’s
injuries. In defendant’s view, he did not initiate the interrogation because “[h]e was arrested and delivered to Detective
Kamenir for questioning about a potentially related investigation” such that the questions “were objectively likely to
relate to the child abuse case and thus objectively likely to
elicit an incriminating response.” In the state’s view, defendant’s argument fails under the federal constitution because
he was not in custody on February 13, so “the federal Miranda
procedures were not triggered, defendant’s invocation was
not effective, and the federal constitution did not constrain
the police’s ability to seek a waiver in the future.” The state
further argues that the February 18 interview did not violate either the state or the federal constitution “because
defendant was not interrogated during that interview until
160                                            State v. Nagy

after he reinitiated conversation about this case and waived
his right to have counsel present for questioning.”
         We agree with the state’s argument that defendant
was not interrogated until after he initiated conversation
with police about this case and validly waived his right to
have counsel present. Here, defendant was in custody on
a probation-violation warrant, and Kamenir interviewed
defendant as the victim of an assault that had occurred the
previous day. Kamenir read defendant his Miranda rights,
and defendant acknowledged that he understood his rights.
Kamenir asked defendant who assaulted him, and defendant described what happened and stated that “this is the
kid—little boy’s dad (indiscernible) because of that—they
think that I did that to this little boy.” Up to that point,
Kamenir had not inquired about C, Johnson, or the events
of February 10. And there is no evidence in the suppression record that police knew that the assault was related to
C’s injuries. Defendant then denied hurting C but offered
that he had helpful information concerning Johnson about
that case. On this record, we conclude that defendant “initiated further conversation that evinced a willingness and a
desire for a generalized discussion about the investigation”
of C’s injuries. Meade, 

. We reach that legal
conclusion despite the fact that Kamenir orchestrated the
February 18 interview with defendant, because he did not
initiate conversation with defendant about this case and did
not interrogate defendant until after defendant initiated
further conversation about C’s injuries.
        Defendant does not challenge the trial court’s determination that he validly waived his right to have counsel
present during the February 18 interview after Kamenir
read defendant his Miranda rights the second time. We
therefore conclude that the trial court did not err in denying
defendant’s motion to suppress.
      CROSS-EXAMINATION ON JOHNSON’S BIAS
         We turn to defendant’s ninth assignment of error
in which he contends that the trial court erred when it prohibited him from cross-examining Johnson about an assault
that she allegedly directed against him and the extent of his
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injuries, for the purpose of establishing her bias. Specifically,
defendant argues that the trial court erred in ruling that
the fact that defendant was assaulted, and any description or depiction of his injuries, was irrelevant. The state
responds that we should not reach the merits of this claim
because, among other things, defendant failed to make an
offer of proof of the excluded testimony. On the merits, the
state argues that the trial court correctly allowed defendant
to question Johnson about the assault and whether she was
involved and properly precluded him from asking about how
he looked after the assault. Finally, the state argues that
any error would have been harmless because “the jury had a
more-than-adequate opportunity to assess the claimed interest and evaluate Johnson’s credibility,” given that defendant
was allowed to, and did, question Johnson about the assault
and whether she was involved, Detective Kamenir had
already testified that defendant was assaulted, and defendant argued in closing that Johnson took him to a hotel “to
receive a beating.”
         We conclude that any error in preventing defendant
from cross-examining Johnson about whether defendant
was in fact assaulted and the extent of his injuries would
not require reversal. “Evidential error is not presumed to be
prejudicial.” OEC 103(1).4 “Article VII (Amended), section 3,
[of the Oregon Constitution] requires an appellate court to
affirm a conviction, notwithstanding any evidentiary error,
if there is little likelihood that the error affected the verdict.” State v. Gibson, 

, 

 (2005)
(citing State v. Davis, 

, 

 (2003)).
“[A] decision to exclude evidence relevant to bias or interest[,] which is [in] error, is reversible if it denies the jury an
adequate opportunity to assess the credibility of a witness
whose credibility is important to the outcome of the trial.”
State v. Hubbard, 

, 

 (1984).
        Here, there is no question that Johnson’s credibility was important to the outcome of the case—she was the
    4
      We acknowledge that, “in a criminal case, the right to impeach a witness
for bias or interest is secured to criminal defendants by the Oregon and United
States constitutions as part of the right to confront witnesses.” State v. Nacoste,

, 

 (2015). Defendant did not raise a constitutional objection below or on appeal.
162                                             State v. Nagy

only witness to place defendant alone with C during each
of the charged incidents. But we agree with the state that
the trial court’s ruling precluding defendant from asking
Johnson whether defendant was in fact assaulted and the
extent of his injuries did not deny the jury an adequate
opportunity to assess her credibility. Although Johnson initially denied being involved in a plot to assault defendant
with C’s putative biological father, Herschel, she confirmed
on cross-examination that Herschel and his brother came
to her apartment; that “it was discussed that maybe they
wanted to do something [to] whoever was responsible”; that
she “may have” agreed to bring defendant to a hotel; that
she picked up defendant, drove him to a hotel to meet a
friend, and saw that the Herschel brothers were also there;
that she falsely told police that she was at the hotel because
defendant had kidnapped her; but that she “wasn’t aware
that he was going to be attacked.” Johnson thus implicitly
confirmed that defendant was in fact assaulted and the
extent of her involvement in the assault. Accordingly, the
scope of defendant’s cross-examination provided the jury an
adequate opportunity to assess Johnson’s credibility regarding her knowledge of and involvement in assaulting defendant. Cf. State v. Nacoste, 

, 

(2015) (concluding that the exclusion of “all evidence” of the
witness’s reasons for currying favor with the prosecution
denied the jury an adequate opportunity to assess her credibility (emphasis in original)). We therefore reject defendant’s
ninth assignment of error.
  FAILURE TO INSTRUCT JURY ON CULPABLE
MENTAL STATE FOR PHYSICAL INJURY ELEMENTS
         Finally, we address defendant’s first seven assignments, in which he contends that the trial court erred in
failing to instruct the jury on the culpable mental state for
the resulting “physical injury” or “serious physical injury”
element on each count. At trial, defendant requested jury
instructions that included a culpable mental state of criminal negligence for the result element on each count, and the
court declined to give defendant’s requested instructions.
The state concedes error on appeal but argues that the error
was harmless beyond a reasonable doubt as to all counts.
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         We accept the state’s concession that the trial court
erred in not giving defendant’s requested instructions on
each count. Shortly after the trial in this case, the Supreme
Court decided State v. Owen, 

, 

 (2022), which held that the result element—physical
injury—of second-degree assault carries, at a minimum,
a culpable mental state of criminal negligence, and that a
court errs in failing to instruct the jury accordingly. The
holding in Owen applies equally to the result element of
physical injury in first-degree criminal mistreatment and
the result element of serious physical injury in first-degree
assault. State v. Allen, 

, 

(2022). And we see no reason it would not also apply to third-degree assault as charged in this case. See ORS 163.165(1)(h)
(“A person commits the crime of assault in the third degree
if the person … [b]eing at least 18 years of age, intentionally or knowingly causes physical injury to a child 10 years
of age or younger[.]”).
          Having concluded that the trial court erred, we
must determine if that error requires reversal. Because the
failure to submit a required element of an offense to the
jury is a federal constitutional error, “[t]he test ‘is whether
it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State
v. Perkins, 

, 

 (2023)
(quoting Neder v. United States, 

, 

,

 (1999)). In determining whether instructional error was harmless, “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.” Owen, 

 (internal quotation marks and citation omitted).
         Here, defendant’s theory was that Johnson inflicted
C’s injuries. The state’s theory was that defendant knowingly
engaged in assaultive conduct with sufficient force to cause
the severe bruising around C’s eyes and forehead (Counts 6
and 7); a broken jaw and severe bruising on his earlobe and
scalp (Counts 4 and 5); severely swollen testicles and severe
bruising around his perineum and anus (Counts 2 and 3);
and a seizure caused by a subdural hematoma (Count 1).
164                                                State v. Nagy

There was no direct evidence of the nature of the conduct
that caused C’s injuries because defendant was alone with
C each time, and C could not provide such direct evidence.
A child abuse pediatrician testified that the nature of C’s
injuries suggested that they were recently and “violently
inflicted,” and not accidental or incidental, and he gave various examples of violent conduct that could cause them.
        The trial court instructed the jury that it must find
that defendant “knowingly” caused serious physical injury
for Count 1 and “knowingly” caused physical injury for
Counts 2 through 7, that “[a] person acts knowingly or with
knowledge if that person acts with an awareness that his
conduct is of a particular nature,” and that
   “In order to prove that the defendant knowingly caused
   physical injury or serious physical injury to C[ ], the state
   must prove only the defendant was aware of the assault[ive]
   nature of his conduct. The state need not prove that the
   defendant was aware that his conduct would in fact cause
   physical injury or serious physical injury to C[ ].”
The court also provided the uniform instructions for “physical injury” and “serious physical injury.”
         We conclude that instructing the jury that defendant must have acted with criminal negligence that his conduct would cause physical injury for first-degree criminal
mistreatment (Counts 2, 4, and 6) and third-degree assault
(Counts 3, 5, and 7) would not have affected the verdict. A
defendant acts with criminal negligence when they “fail[ ]
to be aware of a substantial and unjustifiable risk that the
result will occur” and “[t]he risk must be of such nature and
degree that the failure to be aware of it constitutes a gross
deviation from the standard of care that a reasonable person would observe in the situation.” ORS 161.085(10). Here,
the jury found that defendant acted with an awareness of
the assaultive nature of his conduct, and defendant did not
assert a defense theory that he caused C’s injuries by accident. In light of the medical testimony about the severity
of C’s injuries, that they were recent, and that they were
“violently inflicted,” it is beyond reasonable doubt that the
jury would also have found that defendant was at least
criminally negligent with respect to his assaultive conduct
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causing C—a six-month-old, premobile infant—some physical injury, either substantial pain or impairment of physical
condition. Accord Allen, 

 (so concluding
under similar facts).
         However, we reach a different conclusion as to
Count 1, first-degree assault. We conclude that there is reasonable doubt whether the failure to instruct the jury on
criminal negligence regarding C’s serious physical injury
affected the verdict on that count. The jury’s finding here
that defendant was aware of the assaultive nature of his conduct does not necessarily imply that he failed to be aware of
a substantial risk that his assaultive conduct would cause C
serious physical injury, because there was no direct evidence
of precisely what conduct caused C’s subdural hematoma.
Accord Allen, 

 (so concluding under
similar facts). Without such evidence, we cannot say beyond
a reasonable doubt that the jury would have found that
defendant was at least criminally negligent with respect to
his unknown assaultive conduct causing C physical injury
that creates a substantial risk of death, causes serious and
protracted disfigurement, causes protracted impairment
of health, or causes protracted loss or impairment of the
function of bodily organs. We therefore reverse and remand
Count 1 for new trial on this assignment.
         Conviction on Count 1 reversed and remanded;
conviction on Count 6 reversed and remanded with instructions to enter a finding of guilt on fourth-degree assault;
remanded for resentencing; otherwise affirmed.