State v. Rabago

Court of Appeals of Oregon

State v. Rabago

544 P.2d 1061, 24 Or. App. 95, 1976 Ore. App. LEXIS 2248

CourtCourt of Appeals of Oregon

DecidedJanuary 19, 1976

DocketNo. 30061, CA 4887

StatusPublished

This text of 544 P.2d 1061 (State v. Rabago) 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. Rabago, 544 P.2d 1061, 24 Or. App. 95, 1976 Ore. App. LEXIS 2248 (Or. Ct. App. 1976).

Pincite

Opinion

SCHWAB, C. J.

Defendant, as an aftermath of an argument in a dormitory building with another occupant, got a knife from his room, went to the other occupant’s room, beat upon the door until the unarmed occupant opened it and then stabbed him. As a result, defendant was indicted for both the crimes of attempted murder, ORS 163.115, and assault in the first degree, ORS 163.185.¹

The jury found the defendant not guilty of attempted murder, but guilty of assault in the first degree. Defendant’s principal contention on appeal is that the court erred in instructing the jury that intoxication was not relevant in defense of the assault charge.

A person commits the crime of assault in the first degree if he acts "intentionally, knowingly or recklessly.” ORS 163.185(1). The indictment charged that the defendant acted "recklessly.”

ORS 161.125(1) provides:

"* * * [Vloluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant * * * was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged.”

ORS 161.125(2) provides:

"When recklessness establishes an element of the offense, if the defendant, due to * * * voluntary intoxication, is unaware of a risk of which he would have been aware had he been not intoxicated * * * such unawareness is immaterial.”

Thus, since the indictment charged only a "reckless” state of mind, if the judge had restricted the definition of assault for the purposes of this case to a "reckless” act, his instruction that intoxication was not relevant would have been correct. However, for some reason the [98]*98record does not disclose, the prosecution requested and the judge gave an instruction which theoretically allowed the jury to find that the assault was committed "knowingly” as distinguished from "recklessly.” In any event, the error was harmless and does not require reversal. State v. McLean, 255 Or 464, 468 P2d 521 (1970).

The uncontroverted evidence constitutes overwhelming proof that the defendant was guilty of the crime of assault in the first degree committed recklessly. Therefore, whether ORS 161.125(1) and (2) were intended to mean that intoxication can be considered as a defense when the crime charged involves the mental state of "knowingly,” or were intended to allow that intoxication can be considered as a defense only as to "intentional” crimes, we need not here determine.

The remaining assignment of error does not warrant discussion.

Affirmed.

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SCHWAB, C. J.

Defendant, as an aftermath of an argument in a dormitory building with another occupant, got a knife from his room, went to the other occupant’s room, beat upon the door until the unarmed occupant opened it and then stabbed him. As a result, defendant was indicted for both the crimes of attempted murder, ORS 163.115, and assault in the first degree, ORS 163.185.¹

The jury found the defendant not guilty of attempted murder, but guilty of assault in the first degree. Defendant’s principal contention on appeal is that the court erred in instructing the jury that intoxication was not relevant in defense of the assault charge.

A person commits the crime of assault in the first degree if he acts "intentionally, knowingly or recklessly.” ORS 163.185(1). The indictment charged that the defendant acted "recklessly.”

ORS 161.125(1) provides:

"* * * [Vloluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant * * * was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged.”

ORS 161.125(2) provides:

"When recklessness establishes an element of the offense, if the defendant, due to * * * voluntary intoxication, is unaware of a risk of which he would have been aware had he been not intoxicated * * * such unawareness is immaterial.”

Thus, since the indictment charged only a "reckless” state of mind, if the judge had restricted the definition of assault for the purposes of this case to a "reckless” act, his instruction that intoxication was not relevant would have been correct. However, for some reason the [98]*98record does not disclose, the prosecution requested and the judge gave an instruction which theoretically allowed the jury to find that the assault was committed "knowingly” as distinguished from "recklessly.” In any event, the error was harmless and does not require reversal. State v. McLean, 255 Or 464, 468 P2d 521 (1970).

The uncontroverted evidence constitutes overwhelming proof that the defendant was guilty of the crime of assault in the first degree committed recklessly. Therefore, whether ORS 161.125(1) and (2) were intended to mean that intoxication can be considered as a defense when the crime charged involves the mental state of "knowingly,” or were intended to allow that intoxication can be considered as a defense only as to "intentional” crimes, we need not here determine.

The remaining assignment of error does not warrant discussion.

Affirmed.

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544 P.2d 1061, 24 Or. App. 95, 1976 Ore. App. LEXIS 2248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rabago-orctapp-1976.

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