State v. Newkirk, 509 P.3d 757

Defendant Robert Newkirk was convicted of attempted first-degree assault and second-degree criminal mischief; the trial court imposed an upward-departure sentence of 90 months on the assault count based on four sentencing-enhancement factors.
The attempted-assault arose from an incident in which defendant swung a screwdriver (seven-inch shank and head) at the victim in a downward, chopping motion; the victim lurched back into a wall and would have been struck but for that movement.
Defendant moved for judgment of acquittal on the attempted-assault count, arguing the State failed to prove he intended to cause "serious physical injury" (i.e., substantial risk of death, serious/protracted disfigurement, or protracted impairment).
Defendant separately challenged the sentence, arguing that the Fourteenth Amendment (via incorporation) requires that sentencing enhancement factors be charged by a grand jury or through a preliminary hearing (invoking the Fifth Amendment Grand Jury Clause).
The Court of Appeals reviewed denial of the acquittal motion for legal sufficiency and the constitutional question of incorporation de novo, and ultimately affirmed the convictions and sentencing decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that defendant intended to cause "serious physical injury"	The circumstances (downward chopping swing with a 7" screwdriver; victim forced into a wall; would have been struck absent evasive movement) permit inference of intent to cause serious physical injury.	Evidence was insufficient to prove intent to cause protracted disfigurement, death, or similarly serious harm.	Court affirmed denial of acquittal: evidence supports an inference of intent to cause serious physical injury.
Whether Fourteenth Amendment incorporates the Fifth Amendment Grand Jury Clause so enhancement factors must be charged by a grand jury or preliminary hearing	The State relied on controlling precedent (Hurtado) and argued the Fourteenth Amendment does not require a grand jury; thus enhancements need not be presented to a grand jury or at a preliminary hearing.	Argued modern incorporation doctrine (Ramos, Timbs, McDonald) undermines Hurtado, so the Grand Jury Clause should apply to states and require charging enhancements via grand jury/preliminary hearing.	Court held Hurtado remains controlling; lower courts must follow Supreme Court precedent unless overruled by the Supreme Court itself, so no incorporation — enhancements need not be charged by a grand jury or preliminary hearing.

Hurtado v. California, 110 U.S. 516 (rejected the view that the Fourteenth Amendment "due process" incorporates the federal Grand Jury Clause)
Agostini v. Felton, 521 U.S. 203 (lower courts must follow directly controlling Supreme Court precedent even if later decisions appear to conflict)
Ramos v. Louisiana, 590 U.S. _ (modern jury-rights/incorporation authority relied on by defendant; discussed but not treated as overruling Hurtado)
Timbs v. Indiana, 586 U.S. _ (incorporation decisions cited by defendant in arguing Hurtado is outdated)
McDonald v. Chicago, 561 U.S. 742 (incorporation precedent cited by defendant)
State v. Reinke, 354 Or 98 (Oregon case discussing the evolution of incorporation and related precedent)