Full Opinion

No. 1086 November 12, 2026 497 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. NICHOLAS COLVIN WILDER, Defendant-Appellant. Josephine County Circuit Court 23CR11059; A184431 Matthew G. Galli, Judge. Argued and submitted September 24, 2026. Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Patricia G. Rincon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and O’Connor, Judge. LAGESEN, C. J. Conviction on Count 1 reversed; remanded for resentenc- ing; otherwise affirmed. 498 State v. Wilder Cite as 354 Or App 497 (2026) 499 LAGESEN, C. J. Defendant appeals a judgment of conviction pursu- ant to jury trial for first-degree assault, ORS 163.185(1)(a); unlawful use of a weapon, ORS 166.220; and second-degree criminal mischief, ORS 164.354. Defendant’s conviction for first-degree assault was predicated on the state’s theory that defendant used a rock in a manner that made it a “danger- ous weapon” under ORS 161.015(1) to break three vertebrae in the victim’s back. He assigns error to (1) the trial court’s denial of his motion for judgment of acquittal on the charge of first-degree assault, contending that there was insuffi- cient evidence to support a finding that he had used a rock to cause serious physical injury to the victim, as the indict- ment charged; and (2) the trial court’s failure to instruct the jury that defendant committed first-degree assault only if he intended to cause serious physical injury. We do not reach the second assignment of error because we conclude that the evidence is insufficient to support the finding that defen- dant used a rock to cause the injury to the victim’s back that formed the basis for the charge and, accordingly, reverse the conviction for first-degree assault. In reviewing defendant’s challenge to the sufficiency of the evidence to support his conviction, “we view the evi- dence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable infer- ences, could find the essential elements of the crime beyond a reasonable doubt.” State v. Brown, 316 Or App 808, 809, 502 P3d 1199, rev den, 369 Or 705 (2022). Here, the evidence, viewed in the light most favor- able to the state, shows that defendant jumped out of his truck while it was still rolling, and his truck hit the vic- tim’s motorcycle. Defendant attacked the victim, who was wearing a motorcycle helmet, by hitting him repeatedly in the helmet with a rock. Although the victim could not see what defendant was using to hit him in the helmet, defen- dant later told police that he had used a rock. The victim fell into a ditch, at which point defendant climbed on top of him and continued to hit him in the helmet before ripping off the helmet’s visor and punching the victim once in the face. The victim tried to get up but defendant held him down 500 State v. Wilder until the victim pointed out to defendant that his truck was rolling away. As defendant got up, he delivered a blow to the victim’s back, causing three lumbar fractures. The victim did not know whether defendant used “his knee or his fist or anything” in the hit to the back. The injuries that the vic- tim sustained, however, were of the type usually caused by “implements or gravity,” according to the doctor who treated the victim’s lumbar fractures. That is, such injuries are typically the results of falls from heights, getting hit in the area “usually with an object,” and from car accidents. It is unlikely that a fist could cause such an injury, and it “would be hard to say” whether a foot or a knee could, although the doctor had not personally witnessed similar fractures caused by a knee or foot. In connection with the injury to the victim’s back, the state charged defendant with first-degree assault (among the other offense mentioned above), alleging that defendant committed the offense by “unlawfully and inten- tionally caus[ing] serious physical injury to [the victim] by means of a rock, a dangerous weapon.” At the close of the state’s case, defendant moved for a judgment of acquittal on the ground that the evidence did not allow for a reasonable inference that defendant had used a rock to hit the victim in the back. The trial court denied the motion, and the jury found defendant guilty as charged. On appeal, defendant reiterates his contention that the evidence presented was insufficient to support a find- ing that he used a rock to cause the injury to the victim’s back. We agree. The evidence—particularly the doctor’s tes- timony—may well have permitted a reasonable factfinder to draw a nonspeculative inference that defendant used some implement to cause the back injury. But the issue is whether the evidence allows for the finding that any such implement was a rock. On this record, that finding would be imper- missibly speculative. The victim did not know what body part defendant used to hit him in the back and did not know whether defendant used a rock or other weapon. Although there were rocks in the area and defendant used a rock to hit the victim on the helmet, defendant later attacked the victim without using a rock by punching him in the face Cite as 354 Or App 497 (2026) 501 with his fist. There is no evidence that defendant picked up a rock again after striking the victim in the face. That the strike to the victim’s back occurred as defendant got up from holding the victim down tends to suggest the possibility that defendant kneed or kicked the victim in the back as defen- dant stood and that the weapon—if any—may have been defendant’s shoes. See Brown, 316 Or App at 810-11 (discuss- ing cases involving shoes as dangerous weapons). On these facts, it cannot be rationally inferred beyond a reasonable doubt that defendant used a rock to deliver the blow to the victim’s back. The remaining question is disposition. The state argues that, in the event we determine (as we have) that the evidence is not sufficient to support a finding that defendant used a rock to injure the victim’s back, we should remand for entry of a judgment of conviction of the lesser-included offense of second-degree assault. The state contends that, on this record, in finding defendant guilty of first-degree assault, the jury necessarily found all the elements nec- essary to convict defendant of second-degree assault. Defendant argues otherwise. For us to remand for entry of judgment of convic- tion for second-degree assault, the jury’s verdict would have to reflect that the jury made all the necessary findings to convict defendant of that offense. Here, the jury’s verdict does not reflect that it made all the necessary findings for second-degree assault because of errors in the jury instruc- tions. For example, the jury was instructed (incorrectly) that, to convict defendant of first-degree assault, it had to find that defendant was criminally negligent with respect to the resultant serious physical injury caused by his con- duct. Notwithstanding the fact the instruction was erro- neous with respect to first-degree assault, the erroneous instruction in other circumstances could supply a basis for entry of judgment of conviction for second-degree assault. State v. Owen, 369 Or 288, 322-24, 505 P3d 953 (2022); State v. Swinney, 343 Or App 22, 29-30, 578 P3d 207 (2025), rev allowed, 374 Or 698 (2026) (explaining that second- degree assault requires proof that defendant was criminally negligent with respect to the element of serious physical 502 State v. Wilder injury). In this case, however, it does not. That is because, ultimately, the trial court erroneously instructed the jury on criminal negligence. It instructed the jury that “ ‘crim- inal negligence’ or ‘criminally negligent’ means that the person fails to be aware of a substantial and unjustifiable risk that his conduct may result in serious physical injury.” (Emphasis added.) The trial court’s use of the word “may” lowered the standard for criminal negligence because, as defined by statute, “criminal negligence” with respect to a result means that a defendant “fails to be aware of a sub- stantial and unjustifiable risk that the result will occur.” ORS 161.085(10) (emphasis added). Because the jury was not correctly instructed on the meaning of criminal negli- gence, the record does not allow for the conclusion that the jury found that defendant was criminally negligent so as to allow, in turn, for entry of judgment of conviction for second- degree assault. The state also suggests that, in convicting defen- dant of first-degree assault, the jury necessarily found that defendant consciously intended to inflict serious physical injury—a finding that would satisfy the criminal negli- gence standard under ORS 161.115(3). Again, however, the jury instructions do not permit the conclusion that the jury necessarily made that finding. The jury was not instructed that it had to find that defendant intended to inflict serious physical injury. It was instructed that two alternative find- ings would suffice to establish that defendant “intentionally caused serious physical injury to the victim,” one of which did not require the jury to find that defendant intended to cause serious physical injury to the victim: “[W]hen used in the phrase ‘intentionally cause serious physical injury to another’, ‘intentionally’ or ‘with intent’ means that a person acts with a conscious objective to engage in conduct that may cause serious physical injury to another, or a person acts with a conscious objective to cause serious physical injury to another.” In sum, the evidence is insufficient to support the finding that defendant used a rock to cause the victim’s back injury, so the trial court erred in denying defendant’s motion for judgment of acquittal. Further, in view of how the Cite as 354 Or App 497 (2026) 503 jury was instructed, the record does not demonstrate that the jury made the findings necessary for entry of a judg- ment of conviction for the lesser-included offense of second- degree assault. We therefore reverse defendant’s conviction on Count 1 and remand for resentencing on the other two counts of conviction. Conviction on Count 1 reversed; remanded for resentencing; otherwise affirmed.