State v. McNair

39 P.3d 284, 179 Or. App. 308, 2002 Ore. App. LEXIS 125
CourtCourt of Appeals of Oregon
DecidedJanuary 30, 2002
Docket991292; A109616
StatusPublished
Cited by5 cases

This text of 39 P.3d 284 (State v. McNair) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McNair, 39 P.3d 284, 179 Or. App. 308, 2002 Ore. App. LEXIS 125 (Or. Ct. App. 2002).

Opinion

BREWER, J.

Defendant appeals from his convictions for two counts of assault in the second degree under ORS 163.175(1)(a) (Count 1) and ORS 163.175(1)(b) (Count 2).1 In his sole assignment of error, defendant asserts that the trial court erred in failing to give the jury his requested lesser-included offense instruction on assault in the third degree under ORS 163.165(1)(a) and ORS 163.165(1)(b).2 We review for errors of law, State v. Lee, 174 Or App 119, 125, 23 P3d 999 (2001), and affirm.

We view the facts in the light most favorable to defendant to determine whether there was evidence to support the requested instruction. State v. Loew, 130 Or App 370, 372, 881 P2d 837 (1994). On October 9, 1999, defendant had a verbal confrontation at a tavern with Richard Elliott and one of Elliott’s companions. Defendant became angry, and the owner of the tavern ushered him out after defendant threw a pool ball across the bar. Defendant then went to another tavern across the street. Elliott later went to the other tavern to talk to defendant. Elliott wanted to calm defendant down, but defendant told Elliott to get out of defendant’s face or defendant would “hurt” Elliott. Elliott returned to the first tavern and remained there for another hour. At about midnight, Elliott and his friends left the tavern and headed toward their vehicle. As they passed the second tavern, defendant rushed out to confront them. Defendant [311]*311wanted to fight Elliott’s companion. Elliott stepped between the men to calm defendant. Defendant then struck Elliott, knocking him to the ground and rendering him unconscious. After Elliott was down, defendant kicked his head.

As a result of the attack, Elliott suffered vision and hearing problems, bone damage in his sinus and face, numbness in his mouth, neck problems, and dizziness. In addition, Elliott lost two teeth, had a metal plate surgically inserted in his face, and suffered facial scarring. As a result of his injuries, Elliott has not been able to work in his customary trade.

A witness testified that, at the time of the incident, defendant had been drinking and was affected by what he drank. Defendant told the police that he had drunk a bottle of 100 proof whiskey and a lot of beer before the incident. Defendant’s memory of the events preceding the incident was hazy. He did not remember throwing the pool ball. However, defendant did remember knocking Elliott to the ground and kicking him. When police showed defendant photographs of Elliott’s injuries, defendant cried and said, “I [cannot] believe I did that to my friend,” and “I know I [should not] have kicked him so hard.” Defendant stated that he did not intend to kick Elliott in the head and that, until he saw the photos, he had believed that he kicked Elliott in the shoulder.

Defendant requested the trial court to instruct the jury on two different types of assault in the third degree, ORS 163.165(1)(a) and (1)(b), as lesser-included offenses of the charged offenses. The trial court refused to instruct on third-degree assault.3 The court ruled, as a matter of law, that assault in the third degree was not a lesser-included offense of assault in the second degree and that, in any event, the evidence at trial would not permit a rational juror to acquit defendant of assault in the second degree and to convict him of assault in the third degree. The jury found defendant guilty of both charged offenses, and defendant appeals from his resulting convictions.

On appeal, defendant asserts that the indictment “for assault in the second degree would include by necessary [312]*312implication the lesser degrees of assault including assault in the third degree.” Defendant concedes that he assaulted Elliott but “den[ies] knowledge or intent.” According to defendant, the decisive issue is whether the evidence permitted the jury to find that he acted “recklessly,” the mental state required to convict him of third-degree assault, as opposed to “knowingly,” the minimally culpable mental state required for a conviction of assault in the second degree.4

As he did at trial, defendant primarily relies on two opinions of this court to support his argument. In the first, State v. Jantzi, 56 Or App 57, 61, 641 P2d 62 (1982), this court held that “[rjecklessly causing physical injury to another is assault in the third degree. ORS 163.165.” This court further said that “[ajssault in the third degree is a [lesser-included] offense of the crime of assault in the second degree charged in the accusatory instrument in this case.” Id. In the second case, State v. Thayer, 32 Or App 193, 573 P2d 758, rev den 283 Or 1 (1978), although the defendant stabbed a homicide victim 50 times, this court reversed his conviction for murder because the trial court had failed to instruct the jury with respect to the lesser-included offense of first-degree manslaughter. The court held that evidence of the extent of the defendant’s intoxication would have permitted the jury rationally to find the defendant guilty of first-degree manslaughter — an offense that required that the defendant have acted only recklessly. Id. at 196. Defendant asserts that, as in Thayer, there was evidence in this case that his intoxication rendered his mental state reckless, at most, when he assaulted the victim. Relying on Jantzi, defendant further reasons that he was entitled to a lesser-included offense [313]*313instruction on third-degree assault. Defendant’s reliance on Jantzi is misplaced.

A crime is a lesser-included offense of another crime if either of two circumstances exists: (1) the elements of the lesser offense necessarily are included in the greater offense, or (2) all the elements of the lesser offense are expressly pleaded in the accusatory instrument. State v. Zimmerman, 170 Or App 329, 332, 12 P3d 996 (2000); State v. Cook, 163 Or App 578, 581, 989 P2d 474 (1999). Defendant does not contend that all of the elements of either variant of third-degree assault were pleaded in the indictment and, therefore, he does not rely on the second test for a lesser-included offense. Instead, he focuses on the first test, under which the issue reduces to a single question: do any of the ways of proving assault in the second degree as provided under either ORS 163.175(1)(a) or (b) necessarily subsume all of the elements of assault in the third degree as provided in either ORS 163.165(1)(a) or (b)?

Count 1 of the indictment charged defendant with second-degree assault under ORS 163.175(1)(a).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. English
343 P.3d 1286 (Court of Appeals of Oregon, 2015)
State v. Enyeart
340 P.3d 57 (Court of Appeals of Oregon, 2014)
United States v. Crews
621 F.3d 849 (Ninth Circuit, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
39 P.3d 284, 179 Or. App. 308, 2002 Ore. App. LEXIS 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcnair-orctapp-2002.