State v. Modrzejewski, 490 P.3d 172

Consolidated appeal: Case No. 18CR09518 (multiple assault/weapon/coercion/menacing/mischief counts) and Case No. 18CR37061 (tampering with a witness).
Charged conduct relevant here: defendant, intoxicated, pushed a seven‑year‑old (G) into a wall; G said “ow,” rubbed his head, and otherwise appeared fine.
Count 7: third‑degree assault of a child (knowingly causing "physical injury" construed as "substantial pain"). Trial court denied defendant’s motion for judgment of acquittal (MJOA) on Count 7.
Jury received a nonunanimous‑verdict instruction; one conviction (Count 1, second‑degree assault) was entered on a nonunanimous verdict.
The state conceded insufficiency of evidence for third‑degree assault and conceded error as to the nonunanimous verdict; the Court of Appeals reversed Count 7 and reversed/remanded Count 1 for the nonunanimous verdict, remanded for resentencing, and otherwise affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for third‑degree assault (Count 7): whether pain was "substantial"	State concedes evidence was insufficient for third‑degree assault but asks remand to enter attempted third‑degree assault.	Evidence shows only fleeting/inconsequential pain; conviction must be reversed.	Reversed for insufficiency. Court accepts concession; cannot substitute an attempted conviction because jury was not instructed on attempt.
Nonunanimous jury instruction and verdicts (Ramos issue)	State acknowledges error on Count 1 nonunanimous verdict; argues harmlessness where verdicts are mixed.	Instruction/entry of conviction on nonunanimous verdict violates Sixth Amendment per Ramos.	Following State v. Flores Ramos, mixed verdicts’ nonunanimous instruction is harmless for unanimous verdicts; but entering conviction on a nonunanimous verdict (Count 1) was erroneous — conviction reversed and remanded.
Authority to direct entry of attempted conviction on appeal	State asks appellate court, under Art. VII, § 3, to direct entry of attempted third‑degree assault.	Opposes because jury received no attempt/lesser‑included instruction; precedent forbids entering an untried inchoate conviction.	Court declines to direct entry of attempted assault; Morales controls — cannot infer an attempted conviction where jury wasn’t instructed on attempt or lesser‑included offense.

State v. Connelly, 298 Or App 217, 445 P3d 940 (motion for judgment of acquittal standard)
State v. Long, 286 Or App 334, 399 P3d 1063 (defining "substantial pain" for assault)
State v. Colpo, 305 Or App 690, 472 P3d 277 (substantial pain must be ample/considerable and durational)
State v. Morales, 137 Or App 616, 905 P2d 256 (cannot direct entry of lesser/inchoate conviction when jury was not instructed on it)
State v. Slater, 310 Or App 746, 487 P3d 59 (contrast where elements aligned and substitution was permissible)
State v. Flores Ramos, 367 Or 292, 478 P3d 515 (treatment of nonunanimous jury instruction error; harmlessness analysis)
Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. 2020) (nonunanimous jury verdicts for nonpetty offenses violate the Sixth Amendment)