527 P.3d 800
Or. Ct. App.2023Background
- March 2020 incident: defendant wrapped an electrical cord around intimate partner N’s neck three times, tightened it, N lost consciousness, fell and was later handcuffed in a closet; N testified she did not consent.
- Defendant admitted choking N but claimed the acts were consensual BDSM; he testified he asked for a “green light” and tried to be careful.
- Jury sent a question during deliberations asking whether consent/non-consent is a portion or element for Strangulation, Assault II, and Kidnapping II.
- Trial court answered that consent is not a “portion or element” for Strangulation or Assault (it instructed kidnapping required lack of consent); jury convicted of strangulation, second-degree assault, and unlawful use of a weapon (UUW); acquitted on kidnapping and January incident charges.
- On appeal defendant challenged (1) the court’s jury answer on consent (strangulation and assault), (2) lack of jury instructions on the mental state for the physical-injury element of assault, and (3) lack of instructions on mental states for the weapon elements of assault and UUW.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent is an element/portion of strangulation | Consent is not an statute element; statute lists only medical/dental/religious exceptions | Consent to sexual activity can be a defense to avoid criminal liability | No error: consent is not an element/portion of strangulation; court’s answer correct; conviction affirmed |
| Whether jury should have been instructed on a culpable mental state for the physical‑injury element of 2nd‑degree assault | Any error was harmless; verdict would stand | Owen requires at least criminal negligence instruction as to physical injury; failure to instruct is plain error | Plain error; not harmless; conviction for 2nd‑degree assault reversed and remanded |
| Whether jury should have been instructed that defendant must know the cord was a dangerous/deadly weapon for UUW | Any omission was harmless given facts; defendant knew dangerousness | Instruction required that defendant know weapon was dangerous | If error, it was harmless on this record; UUW conviction affirmed |
| Whether court erred re: consent or mental‑state instructions for assault (other weapon mental‑state issue) | Consent/mental‑state instructions unnecessary or harmless | Consent and weapon mental‑state instructions were required | Court did not reach these issues (declined in light of reversal/remand on assault physical‑injury instruction) |
Key Cases Cited
- State v. Owen, 369 Or. 288 (2022) (physical‑injury element of 2nd‑degree assault is a result element requiring at least criminal negligence)
- State v. Hatchell, 322 Or. App. 309 (2022) (applying Owen; failure to instruct on culpable mental state for injury is legal error)
- State v. McKinney/Shiffer, 369 Or. 325 (2022) (harmless‑error analysis for unpreserved instructional error)
- State v. Davis, 336 Or. 19 (2003) (an error is harmless only if little likelihood it affected the verdict; focus on possible influence)
- State v. Vanornum, 354 Or. 614 (2013) (plain‑error standard; criteria for obvious legal error)