State v. Tellez-Suarez

322 Or.App. 337

519 P.3d 561

STATE of Oregon, Plaintiff-Respondent,

v.Eliseo TELLEZ-SUAREZ, Defendant-Appellant.

A168847

Court of Appeals of Oregon.

Submitted on remand August 4, 2022.

October 12, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

KAMINS, J.

This case is before us on remand from the Supreme Court. Defendant was convicted of two counts each of criminal mistreatment in the first degree, ORS 163.205(1)(b)(A), and assault in the third degree, ORS 163.165(1)(h),¹ for pushing his seven-year-old son into a wall and a bookcase, causing lacerations to the child's head. In the underlying appeal, defendant raised five assignments of error. The first assignment challenged the jury instruction about the requisite culpable mental state, the second and third assignments related to the nonunanimous jury instruction, and the fourth and fifth assignments regarded aspects of defendant's sentence. The state conceded the sentencing errors; we accepted those concessions and affirmed as to the first three assignments of error. State v. Tellez-Suarez , 310 Or App 354, 484 P.3d 396 (2021) ( Tellez-Suarez I ), vac'd in part and rem'd , 369 Or. 855, 512 P.3d 447 (2022) ( Tellez-Suarez II ).

The Supreme Court vacated our decision and remanded the matter "for reconsideration in light of State v. Owen , 369 Or. 288, 505 P.3d 953 (2022), and State v. McKinney/Shiffer , 369 Or. 325, 505 P.3d 946 (2022)." Tellez-Suarez II , 369 Or. 855, 512 P.3d 447. We understand that our limited task on remand is to reconsider defendant's first assignment of error, which contended that the trial court plainly erred in omitting a culpable mental state for the element of resulting physical injury. Having reviewed the record, we decline to exercise our discretion to correct any error, because the jury's verdict indicates that any error was harmless. See Owen , 369 Or. at 323, 505 P.3d 953 ("We will affirm the judgment below if we determine that there was little likelihood that the error affected the verdict." (Citation omitted.)).

The jury was instructed that "[i]n order to prove that the defendant knowingly caused physical injury to the victim, the state must prove that the defendant was aware of the assaultive nature of his conduct" and that "physical injury means an injury that impairs a person's physical condition or causes substantial pain." Instructing the jury that defendant must have acted with criminal negligence as to resulting physical injury—which requires that the defendant "fail[ed] to be aware of a substantial and unjustifiable risk * * * 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"—would not have affected the outcome of the case. ORS 161.085(10). Given that the jury found that defendant acted with an awareness that his conduct was assaultive in nature and that his assaultive conduct—pushing his seven-year-old- son into a wall and bookcase—was committed with sufficient force to cause physical injury (lacerations to the forehead ) to his child, there is little likelihood that it would have concluded that defendant was not at least negligent...