concluding that the trial court’s failure to instruct on the culpable mental state for second-degree assault was not harmless because it was not clear that a jury would find “that [the] defendant failed to be aware of a substantial risk that a solitary punch would cause a serious physical injury, or that that risk was of such a nature and degree that [the] defendant’s failure to be aware of it was a gross deviation from the standard of care that a reasonable person would observe in the situa- tion” (emphasis in original)
How later courts described this case
- concluding that the trial court’s failure to instruct on the culpable mental state for second-degree assault was not harmless because it was not clear that a jury would find “that [the] defendant failed to be aware of a substantial risk that a solitary punch would cause a serious physical injury, or that that risk was of such a nature and degree that [the] defendant’s failure to be aware of it was a gross deviation from the standard of care that a reasonable person would observe in the situa- tion” (emphasis in original)
- stating that an instructional error is prejudical “if the absence of the jury instruction probably created an erro- neous impression of the law in the minds of the jury and if that erroneous impression may have affected the outcome of the case” (internal quotation marks and citation omit- ted)
- holding that a trial court’s failure to instruct the jury on a minimum culpable mental state of criminal negligence for second-degree assault constituted plain error because the error is one of law, is obvious and not reasonably in dispute, and was apparent on the record
- holding, in consolidated cases, that trial courts’ failures to instruct on a required mental state ele- ment constituted plain errors because they were errors of law, not reasonably in dispute, and apparent on the record
Written by the judges who cited it.
The opinion
325
Argued and submitted March 11, 2021; in State v. Shiffer, decision of Court of
Appeals reversed, judgment of conviction vacated in part, and case remanded to
circuit court for further proceedings; in State v. McKinney, decision of Court of
Appeals reversed, judgment of conviction vacated in part, and case remanded to
circuit court for further proceedings March 3, 2022
STATE OF OREGON,
Respondent on Review,
v.
GINA MAREE McKINNEY,
Petitioner on Review.
(CC 17CR19610) (CA A168056) (SC S067558 (Control))
STATE OF OREGON,
Respondent on Review,
v.
ROCKLYN MITCHEL SHIFFER,
Petitioner on Review.
(CC 17CR45148) (CA A168450) (SC S067659)
505 P3d 946
Defendant Shiffer was charged with second-degree assault, ORS 163.175(1)(a).
At his bench trial, he argued that the state was required to prove that he knew
that his conduct would result in serious physical injury to secure a conviction,
contending that the rule announced in State v. Barnes, 329 Or 327, 986 P2d 1160
(1999), that the state need only prove that Shiffer was aware that his conduct
was “assaultive,” was no longer good law. The trial court applied the Barnes rule
and convicted Shiffer. On appeal, Shiffer argued for the first time that, at min-
imum, the state needed to prove that he was criminally negligent with respect
to the physical injury; the Court of Appeals affirmed without opinion. Defendant
McKinney was charged in an unrelated matter with third-degree assault, ORS
163.165(1)(h), and the jury considered the lesser-included offense of fourth-
degree assault under ORS 163.160(1)(a). McKinney requested that the trial court
instruct the jury that, to find her guilty of third-degree assault, it must find
that she knew or was aware that her actions would result in physical injury.
The trial court instead instructed the jury according to the law announced in
Barnes. On appeal, McKinney suggested for the first time that the result element
required a culpable mental state of at least criminal negligence; the Court of
Appeals affirmed. Held: (1) Given the rule announced in State v. Owen, 369 Or
288, 505 P3d 953 (2022), that the state must show that a defendant acted with
at least criminal negligence with respect to the resultant physical injuries in
assault cases to secure a conviction, the court reviewed the unpreserved errors
under the plain-error doctrine; (2) the error in defendant Shiffer’s case was
harmful because the trial court could have convicted him without finding a cul-
pable mental state as to the result element; (3) the error in defendant McKinney’s
case was harmful because the instructional error concerning the third-degree
assault charge, for which the jury did not convict defendant McKinney, could
326 State v. McKinney/Shiffer
have confused the jury and affected its deliberations on the fourth-degree assault
charge it ultimately convicted her on.
In State v. Shiffer, the decision of the Court of Appeals is reversed, the judg-
ment of conviction is vacated in part, and the case is remanded to the circuit
court for further proceedings. In State v. McKinney, the decision of the Court of
Appeals is reversed, the judgment of conviction is vacated in part, and the case is
remanded to the circuit court for further proceedings.
On review from the Court of Appeals.*
Bear Wilner-Nugent, Bear Wilner-Nugent Counselor &
Attorney at Law, Portland, argued the cause and filed the
briefs for petitioner on review Gina Maree McKinney.
Zachary Lovett Mazer, Deputy Public Defender, Office
of Public Defense Services, argued the cause and filed the
briefs for petitioner on review Rocklyn Mitchel Shiffer. Also
on the briefs was Ernest G. Lannet, Chief Defender.
Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, and Garrett, Justices, and Nakamoto, Senior Judge,
Justice pro tempore.**
NAKAMOTO, S. J.
In State v. Shiffer, the decision of the Court of Appeals
is reversed, the judgment of conviction is vacated in part,
and the case is remanded to the circuit court for further
proceedings. In State v. McKinney, the decision of the Court
of Appeals is reversed, the judgment of conviction is vacated
in part, and the case is remanded to the circuit court for
further proceedings.
______________
* Appeal from Washington County Circuit Court, Andrew R. Erwin, Judge.
State v. McKinney, 302 Or App 309, 457 P3d 377 (2020). Appeal from Multnomah
County Circuit Court, Leslie M. Roberts, Judge. State v. Shiffer, 302 Or App 382,
457 P3d 386 (2020).
** DeHoog, J., did not participate in the consideration or decision of this case.
Cite as 369 Or 325 (2022) 327
NAKAMOTO, S. J.
Like the defendant in State v. Owen, 369 Or 288,
505 P3d 953 (2022), also decided this day, defendants
Shiffer and McKinney were each charged in independent
cases with an assault offense requiring proof that the defen-
dant knowingly caused physical injury to another person.
Defendant Shiffer opted for a bench trial and argued that
the trial court had to find that he knew that his actions
would result in serious physical injury before finding him
guilty. Defendant McKinney’s case went to a jury, and she
requested instructions that would have required the state to
prove that she knew her actions would result in the requi-
site physical injury. Unlike the defendant in Owen, however,
Shiffer and McKinney did not argue at trial that, at mini-
mum, the criminal negligence mental state attaches to the
injurious result element. Citing State v. Barnes, 329 Or 327,
986 P2d 1160 (1999), both trial courts rejected their argu-
ments, and in McKinney’s trial, the court declined to give
her requested instructions and instead gave instructions
focusing on her knowledge of the nature of her conduct. The
Court of Appeals affirmed each of their assault convictions.
On review, each defendant asserts that the trial
court erred. Defendants reassert their arguments made in
the trial courts that a knowing mental state should have
attached to the physical injury element, a conclusion we
rejected in Owen. See Owen, 369 Or at 320. Additionally,
each defendant makes the unpreserved argument that, if the
knowing mental state does not apply to the physical injury
element, then the minimum culpable mental state should
be criminal negligence. In Owen, we held that the resultant
physical injury element of the second-degree assault offense
required a culpable mental state and, therefore, that the
state must prove that the defendant was at least criminally
negligent with respect to the physical injury. Id. at 322.
As a result, our decision in defendants’ cases initially
is concerned with whether the holding in Owen extends to
each defendant’s unpreserved argument on review that the
result element of assault must have an associated culpable
mental state. We exercise our discretion to review the error in
each case under plain-error review, and we further conclude
328 State v. McKinney/Shiffer
that the error in each case was not harmless. Accordingly,
we reverse the decisions of the Court of Appeals and in part
vacate the judgment of conviction in each case.
I. FACTS
A. Defendant Shiffer
Shiffer was involved in an altercation at a store
when he punched the victim on his right cheek. The punch
fractured small bones in the victim’s face and required mul-
tiple procedures to suture a deep wound that penetrated
to the bone. As a result, the victim spent two days in the
hospital, and the injury caused temporary vision loss and
left a permanent scar. The charges against Shiffer included
second-degree assault under ORS 163.175(1)(a).1 He waived
his right to a jury.
In his bench trial, Shiffer argued that the state
had to prove that he “kn[ew] that that punch [was] going to
result in serious physical injury.” He argued that Barnes no
longer was good law in light of State v. Simonov, 358 Or 531,
368 P3d 11 (2016). The state responded that, as this court
had held in Barnes, the trial court was only required to find
that defendant was aware of the assaultive nature of his
conduct and that a knowing culpable mental state did not
attach to the physical injury element.
The trial court, which watched a video recording
of the altercation from the store’s surveillance system,
found that Shiffer knowingly and intentionally assaulted
the victim and that he caused the victim serious physical
injury. The trial court rejected defendant’s argument that
a knowing mental state applied to the nature of the resul-
tant injury. The court distinguished the offense in Simonov,
which involved unauthorized use of a motor vehicle and the
element of the vehicle owner’s lack of consent, from assault
offenses. The court observed that, in the context of the
unauthorized use of a vehicle offense, “[t]he lack of authority
[to use the vehicle] was not in any way the result of crimi-
nal actions” taken by defendant, but rather made the defen-
dant’s actions, when taken, criminal. (Emphasis added.)
1
Pursuant to ORS 163.175(1)(a), second-degree assault is defined as “[i]nten-
tionally or knowingly caus[ing] serious physical injury to another.”
Cite as 369 Or 325 (2022) 329
The trial court concluded that Barnes was not expressly or
impliedly overruled by Simonov and that it was “bound by
Barnes.”
Shiffer appealed and reprised the argument that
a knowing mental state had to attach to the serious phys-
ical injury element of second-degree assault. Additionally,
he argued for the first time that, even if a knowing men-
tal state did not apply to the serious physical injury ele-
ment, the element needed at minimum the culpable mental
state of criminal negligence. He also asserted that the trial
court’s failure to apply a culpable mental state of criminal
negligence to the element constituted plain error. The Court
of Appeals affirmed without opinion. State v. Shiffer, 302 Or
App 382, 457 P3d 386 (2020).
B. Defendant McKinney
McKinney’s daughter, who was seven weeks old,
was admitted to the hospital with a broken femur. An inves-
tigation ensued, and McKinney, a new mother, provided
various, conflicting accounts of what had happened. In her
final explanation to an investigator with the Tualatin police
department, McKinney stated that she was feeding her
daughter in the middle of the night and must have fallen
asleep while sitting up in her bed and holding her. McKinney
told the investigator that she remembered waking up to her
daughter crying on the carpet, picking her up, and putting
her back in the bed next to her. McKinney similarly testified
at trial that she recalled waking up and finding her daugh-
ter on the floor and believed that she had fallen asleep and
dropped her. McKinney also testified that she had not real-
ized the seriousness of her daughter’s injury before taking
her to the hospital two days after the incident occurred.
A doctor who was board-certified in pediatrics and
child abuse medicine was called to consult to help determine
whether the fracture was caused by child abuse. He testi-
fied at trial. He related that medical personnel conducted
a “bone survey” of the baby by taking x-rays of her whole
body and did an MRI study of her head but did not find any
other injuries, new or old. Other than the femur fracture,
she appeared to the doctor to be a normal, healthy infant.
330 State v. McKinney/Shiffer
He testified that a fall from a bed resulting in the type of
fracture the baby suffered would be highly unusual but not
impossible and that an infant with a femur fracture would
be exhibiting signs of significant pain.
McKinney was tried on two counts of first-degree
criminal mistreatment under ORS 163.2052 and one count
of third-degree assault under ORS 163.165(1)(h).3 The jury
also considered the lesser-included offense of fourth-degree
assault under ORS 163.160(1)(a), which provides that a per-
son commits the crime if she “[i]ntentionally, knowingly or
recklessly causes physical injury to another[.]”
McKinney requested that the trial court instruct
the jury that, to find her guilty of third-degree assault, the
jury “must find that [defendant] knew or was aware that
her actions would result in physical injury” and that “[i]t is
not enough, as a matter of law, that [defendant] knew or
was aware of a risk that her actions would result in physi-
cal injury.” (Emphasis added.) Like Shiffer, she argued that
Barnes was no longer good law in light of Simonov. In con-
junction with her requested instructions, she argued in a
memorandum of law that Simonov supported the conclusion
that “cause physical injury” is a unitary element in third-
degree assault and is a “conduct” element that required the
jury to find that she knew she would cause her daughter
physical injury. She also noted that, in Simonov, the state
“had argued that ‘without consent’ was a circumstance ele-
ment, and that—absent an express mental state within the
definition of the crime—the lowest applicable mental state
(criminal negligence) would apply * * *.” However, she did not
expressly adopt that argument before the trial court.
The trial court initially was inclined to give the
jury instructions McKinney had requested, but after the
2
In those counts, the state alleged that McKinney had knowingly caused
physical injury to a dependent person and knowingly withheld medical attention
from a dependent person. The jury convicted her of knowingly withholding medi-
cal attention from, but acquitted her of knowingly causing physical injury to, her
daughter.
3
Pursuant to ORS 163.165(1)(h), a person commits third-degree assault if,
“[b]eing at least 18 years of age,” the person “intentionally or knowingly causes
physical injury to a child 10 years of age or younger[.]” The state alleged that
McKinney had acted “knowingly.”
Cite as 369 Or 325 (2022) 331
state asked for reconsideration, the court decided to adhere
to Barnes. Ultimately, the trial court instructed the jury
that, to find defendant guilty of third-degree assault, “[the
jury] must find that defendant knew or was aware of the
assaultive nature of her conduct. [The jury] need not find
that defendant knew her conduct would cause injury.” As
for the lesser-included offense of fourth-degree assault, the
court instructed the jury that the state had to prove one
element in addition to the date of the act: “[Defendant] reck-
lessly caused physical injury to [her daughter].” The court
instructed the jury that a person acts “recklessly”
“if that person is aware of and consciously disregards a sub-
stantial and unjustifiable risk that a particular result will
occur or a particular circumstance exists. The risk must be
of such nature and degree that disregarding it constitutes
a gross deviation from the standard of care that a reason-
able person would observe in that situation. A person also
acts recklessly if a person acts intentionally or knowingly.”
McKinney’s theory of defense was that the injury
was accidental. During deliberations, the jury sent the court
a note asking it to define the term “assaultive.” The court
declined to provide the jury with a definition and informed
the jury that it had already received all instructions. The
jury acquitted McKinney of knowingly causing physical
injury to her daughter, as alleged in one criminal mistreat-
ment count and in the third-degree assault count, but it
found her guilty of recklessly causing physical injury to her
daughter, the lesser included fourth-degree assault charge.
On appeal, McKinney argued that the jury instruc-
tions for assault were incorrect statements of law. McKinney
asserted that Barnes incorrectly determined the number
and nature of the elements of an assault offense. Ultimately,
she again contended that the jury instructions incorrectly
allowed the jury to convict her without determining whether
she knew that her conduct would cause injury. McKinney
suggested that, if the culpable mental state for the result
element was not “knowingly,” then the minimum culpable
mental state of criminal negligence applied. The Court of
Appeals affirmed in a per curiam decision, citing Barnes.
State v. McKinney, 302 Or App 309, 457 P3d 377 (2020).
332 State v. McKinney/Shiffer
Both defendants filed petitions for review. We allowed
review and consolidated each case with Owen for oral
argument.
II. ANALYSIS
A. Plain-error Review
Our analysis initially focuses on whether Shiffer
and McKinney are in a position to request relief based on
our decision in Owen. Both defendants assert before this
court that the injury element of assault must have a culpa-
ble mental state and that, if the knowing culpable mental
state does not apply, then, at least, the criminal negligence
mental state must attach to the resultant injury element of
assault. But both defendants failed to make that argument
at trial.
We begin with general principles of preservation
and plain-error review. It is well-settled in this court’s juris-
prudence that “[t]he general requirement [is] that an issue,
to be raised and considered on appeal, ordinarily must first
be presented to the trial court.” Peeples v. Lampert, 345 Or
209, 219, 191 P3d 637 (2008); Ailes v. Portland Meadows,
Inc., 312 Or 376, 380, 823 P2d 956 (1991) (“Generally, before
an appellate court may address whether a trial court com-
mitted an error in any of the particulars of the trial of a
case, the adversely affected party must have preserved the
alleged error in the trial court and raised the issue on appeal
by an assignment of error in its opening brief.”).
Further, this court has distinguished between
“raising an issue at trial, identifying a source for a claimed
position, and making a particular argument.” State v. Hitz,
307 Or 183, 188, 766 P2d 373 (1988) (emphasis in original).
Raising an issue at trial “ordinarily is essential,” whereas
identifying a source is less so, and making a particular
argument is the least significant. Id. (“The first ordinarily is
essential, the second less so, the third least.”). The court in
Hitz recognized that “[e]fficient procedures are instruments
for, not obstacles to, deciding the merits, particularly when
the alternative is a criminal conviction that lacks a basis in
law or in fact.” Id. at 188-89. In recognizing that this prin-
ciple provides “some degree of liberality to the preservation
Cite as 369 Or 325 (2022) 333
requirement,” this court has noted that “an appellate court
must view the facts in light of the purposes of fairness and
efficiency that underlie the [preservation] requirement.”
State v. Stevens, 328 Or 116, 122, 970 P2d 215 (1998).
An appellate court may consider an unpreserved
error if the error is plain. Ailes, 312 Or at 381. To constitute
plain error, an error must (1) be one of law; (2) be obvious and
not reasonably in dispute; and (3) appear on the face of the
record. State v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006)
(citations omitted). Whether a plain error occurred does not
turn on the law at the time of trial, but rather depends on
“the law at the time of the appellate decision.” State v. Ulery,
366 Or 500, 503, 464 P3d 1123 (2020). Even if the error is
plain, the court must exercise its discretion whether to con-
sider the error, and such a decision “should be made with
utmost caution.” Ailes, 312 Or at 382.
Turning to Shiffer’s case, although at trial Shiffer
did not make the precise argument he now makes, Shiffer
did challenge the viability of our decision in Barnes in light
of Simonov and contested the culpable mental state that
should apply to the assault charge. Then, in an assignment
of error in the Court of Appeals, he contended that the trial
court erred by failing to find that he acted with at least
criminal negligence with regard to the nature of the injury
that he caused and requested plain-error review. Shiffer
again argues in this court that the trial court plainly erred.
The trial court understood that it was bound by the
holding in Barnes and rejected Shiffer’s arguments that a
culpable mental state as to the serious physical injury he
caused was required to prove second-degree assault. We
agree that the trial court’s error was one of law, is not rea-
sonably in dispute because of our decision in Owen, and
appears on the face of the record. We choose to exercise our
discretion to address the error. Whether any, and which,
culpable mental state should apply to the result element of
the second-degree assault charge has been at issue at every
level of the case.
McKinney’s case is somewhat different, but the
same dispute appears at every level of her case. Like Shiffer,
334 State v. McKinney/Shiffer
she argued that Barnes no longer was good law, although
she did not preserve the specific argument that, at mini-
mum, the trial court should apply the criminal negligence
culpable mental state to the injury element. Unlike Shiffer,
on appeal, she did not devote an assignment of error to the
trial court’s failure to instruct the jury that the state had
to prove that she was criminally negligent with respect to
the physical injury. However, she made the argument in
the Court of Appeals. She contended that ORS 161.095(2)
requires “some minimal culpable mental state for each
material element” and observed that the minimal culpable
mental state is criminal negligence. She concluded that the
jury instructions “baselessly alleviated the state’s burden of
proving any culpable mental state at all” as to her daugh-
ter’s physical injury.
In this court, McKinney does not specifically
request plain-error review and does not make an argument
as to why this court should exercise its discretion to review
the error. She does, however, adopt all arguments made by
defendants Owen and Shiffer in their briefs on the merits
pursuant to ORAP 5.77(1) and (4), and Shiffer, of course,
made the argument for plain-error review.4 In accordance
with Barnes, the jury instructions the trial court gave in
McKinney’s case did not inform the jury that the state had
to prove that she was at least criminally negligent as to the
physical injury that her daughter suffered. As in Shiffer’s
case, the trial court’s error was one of law, is not reason-
ably in dispute because of our decision in Owen, and appears
on the face of the record; and, as in Shiffer’s case, we exer-
cise our discretion to address the error in McKinney’s case
through plain-error review.
B. Harmlessness
Although an error occurred in the trial court, we
will affirm if there is “little likelihood that the particular
error affected the verdict.” State v. Davis, 336 Or 19, 32, 77
4
Under ORAP 5.77(1), a party may adopt the brief of another party on the
same side, including cases consolidated on appeal. And under ORAP 5.77(4)(a),
a party “who concurs with all or part of a brief filed by another party and who
has no other position to assert may adopt the other party’s brief by filing a brief
adopting in whole or in part the brief of another party.”
Cite as 369 Or 325 (2022) 335
P3d 1111 (2003). In Shiffer, the state argues that the trial
court, sitting as factfinder, found that defendant was aware
of the assaultive nature of his conduct and, indeed, was
“seeking to injure” the victim when he punched him in the
face, but the state does not contend that a failure to apply a
mental state to the result element was harmless.
Shiffer argues that the culpable mental state mat-
ters in this case, where he was charged with “intentionally
and knowingly caus[ing] serious physical injury” to the vic-
tim. Had the trial court applied a criminally negligent men-
tal state to the result element—the serious physical injury—
it would have had to find that, when defendant punched the
victim, he failed “to be aware of a substantial and unjusti-
fiable risk that the result will occur” and that the risk was
“of such nature and degree that the failure to be aware of it
constitutes a gross deviation from the standard of care that
a reasonable person would observe in the situation.” ORS
161.085(10). Defendant describes what happened in this
case as not uncommon: The two men argued, and defendant
punched the victim once in the cheek. He argues that it is
not clear that a factfinder would find “that defendant failed
to be aware of a substantial risk that a solitary punch would
cause a serious physical injury, or that that risk was of such
a nature and degree that defendant’s failure to be aware of
it was a gross deviation from the standard of care that a rea-
sonable person would observe in the situation.” (Emphases
in original.)
An instructional error is prejudicial if the absence
of the jury instruction “probably created an erroneous
impression of the law” in the minds of the jury members
and “if that erroneous impression may have affected the
outcome of the case.” Hernandez v. Barbo Machinery Co.,
327 Or 99, 106-07, 957 P2d 147 (1998) (citations omitted).
And in a bench trial, we similarly review whether the trial
court’s legal error regarding an element of the offense that
the state had to prove may have affected the outcome of the
case. Cf. State v. Marrington, 335 Or 555, 565-66, 73 P3d
911 (2003) (evaluating whether there was little likelihood
that the trial court’s legal error in admitting testimony
affected the court’s verdict in a bench trial).
336 State v. McKinney/Shiffer
We agree with defendant that the culpable men-
tal state for the serious physical injury element could have
made a difference in his case. It would have changed what
the trial court had to consider before convicting defendant
on the second-degree assault charge, and we cannot say
that those considerations would not have affected the court’s
decision. Therefore, we vacate the judgment of conviction
as to the second-degree assault count in Shiffer’s case and
remand to the trial court for a new trial.
In McKinney, the state contends that any instruc-
tional error concerning the third-degree assault charge was
harmless because McKinney was acquitted of that charge.
And, for the fourth-degree assault of which she was con-
victed, the state was required to prove that she recklessly
caused injury to her daughter, ORS 163.160(1)(a), and
McKinney did not dispute the instruction for that charge.
McKinney responds that the instruction on third-
degree assault likely confused the jury. The trial court
instructed the jury that it “must find that defendant knew
or was aware of the assaultive nature of her conduct” and
“need not find that defendant knew her conduct would cause
injury.” The instruction on fourth-degree assault did not
mention a culpable mental state for the physical injury ele-
ment. McKinney contends that, because the instructions as
a whole conveyed that the culpable mental state applied to
her conduct but no culpable mental state applied to the phys-
ical injury element for fourth-degree assault, the jury could
have convicted her of fourth-degree assault while accepting
that the injury was an accident that happened when she fell
asleep.
We agree that the absence of an instruction on the
mental state required for the result element could have
made a difference. The jury’s question for the court about
the meaning of “assaultive” is some indication that the jury
could have been wrestling with defendant’s state of mind and
her blameworthiness for the injury. The jury acquitted her
on charges that required the state to prove that McKinney
“knowingly” caused physical injury to her daughter. The
jury’s acquittal of McKinney of third-degree assault is con-
sistent with the jury believing McKinney’s explanation that
Cite as 369 Or 325 (2022) 337
she fell asleep while holding her daughter. That belief also
would be consistent with the jury’s finding that she acted
recklessly, as required for fourth-degree assault. For exam-
ple, the jury could have reasoned that McKinney was reck-
less because she knew she was tired but consciously disre-
garded a risk that she would fall asleep and lose her grip on
her daughter.
But the jury was not told that it had to find in addi-
tion that McKinney was aware of and disregarded a sub-
stantial and unjustifiable risk that her conduct would cause
physical injury. The criminally negligent mental state that
should have attached to the physical injury element would
have guided the jury to deliberate in a different way and
may have affected the outcome of the case. Although it found
her action reckless, the jury could have found that it was not
“a gross deviation from the standard of care that a reason-
able person would observe” for McKinney to be unaware of a
substantial risk that, if she fell asleep, her daughter would
suffer physical injury. See ORS 161.085(10) (defining “crim-
inal negligence”). Accordingly, we vacate the judgment of
conviction as to the fourth-degree assault count and remand
to the trial court for a new trial.
In State v. Shiffer, the decision of the Court of
Appeals is reversed, the judgment of conviction is vacated
in part, and the case is remanded to the circuit court for
further proceedings. In State v. McKinney, the decision of
the Court of Appeals is reversed, the judgment of conviction
is vacated in part, and the case is remanded to the circuit
court for further proceedings.