State v. Scatamacchia

                                       31

Submitted September 14, affirmed December 7, 2022, petition for review denied
                       March 30, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                ALAN DANIEL SCATAMACCHIA,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      20CR22062; A174880
                                   

    Defendant appeals from a judgment of conviction for assault in the second
degree, ORS 163.175, among other crimes, assigning error to the jury instruc-
tions about the requisite culpable mental states for that crime. Held: The instruc-
tions were erroneous in light of State v. Owen, 

, 

 (2022),
but the error was harmless because, given the evidence and defendant’s theory
of self-defense, there is little likelihood that the jury would have concluded that
defendant was not at least criminally negligent in causing serious physical injury
to the victim.
    Affirmed.



    Eric Butterfield, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for appel-
lant. Alan Daniel Scatamacchia filed the supplemental brief
pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
    KAMINS, J.
    Affirmed.
32                                                State v. Scatamacchia

           KAMINS, J.
          Defendant appeals his convictions for assault in the
second degree, ORS 163.175; assault in the fourth degree,
ORS 163.160; unlawful use of a weapon, ORS 166.220; men-
acing, ORS 163.190; interference with making a report,
ORS 165.572; and theft in the second degree, ORS 164.045.
We write to address his assignments of error relating to the
jury instructions about the requisite culpable mental states
for second-degree assault. We conclude that the instruc-
tions were erroneous in light of subsequent case law, but the
error was harmless because there is little likelihood that
the jury would have concluded that defendant was not at
least criminally negligent in causing serious physical injury.
Additionally, we reject defendant’s remaining assignments
of error.1 We therefore affirm.
         The charges arose out of an altercation between
defendant and his roommate, K. At trial, defendant and K
presented starkly different versions of events. K testified
that defendant became agitated during an argument and
began to push her around the apartment with his chest, so
she called 9-1-1. At one point he brandished a kitchen knife
at her and threatened to kill her. While she was still on the
phone with the 9-1-1 operator, she thought that defendant
left the apartment, but he then tackled her from behind,
straddled her, held her by the hair, and punched her in the
head and face approximately 20 times. Defendant, on the
other hand, acknowledged that he punched K, but claimed
that he acted in self-defense. He testified that K punched
him several times before he punched her in the face, causing
her to fall down. He acknowledged that he then straddled
her and punched her head and face five or six more times.
         The undisputed evidence at trial showed that, after
the incident, K’s eyes were swollen shut and she was bleed-
ing profusely. She required stitches in several places on her
face and mouth and suffered a “blow-out” fracture of the
    1
      Defendant’s remaining assignments of error challenge the admission of
evidence over defendant’s OEC 403 objection; the exclusion of evidence to which
defendant argues the state “opened the door”; the inclusion of domestic violence
allegations in the indictment read to the jury pool but which the state agreed to
strike before trial; and an alleged discovery problem. We conclude that any such
errors were harmless.
Cite as 

 (2022)                                33

orbital socket, vision problems from a broken contact lens,
and a concussion that caused headaches and short-term
memory problems which persisted for several months.
         The parties each requested special jury instruc-
tions about the culpable mental state for assault in the sec-
ond degree. The state’s requested instructions would have
instructed the jury that, to prove that defendant knowingly
caused serious physical injury to the victim, “the state
needs to prove only that defendant was aware of the assaul-
tive nature of his conduct.” Defendant requested instruc-
tions that, to find defendant guilty, the jury “must find that
[defendant] knew or believed his actions would result in
serious physical injury,” or, in the alternative, that “he knew
of the assaultive nature of his conduct” and “that he negli-
gently caused serious physical injury.”
         The trial court, with the state’s acquiescence, ulti-
mately decided to give only the uniform jury instruction
that defendant “knowingly caused serious physical injury”
to the victim. The jury also received definitions that “a per-
son acts ‘knowingly’ or ‘with knowledge’ if that person acts
with an awareness that his conduct is of a particular nature
or a particular circumstance exists” and that “serious phys-
ical injury means a physical injury that (1) creates a sub-
stantial risk of death, (2) causes serious and protracted dis-
figurement, (3) causes protracted impairment of health, or
(4) causes protracted loss or impairment of the function of
any bodily organ.”
         After the trial, the Supreme Court clarified the
required mental state for the injury element of the crime of
assault. State v. Owen, 

, 

 (2022).
Under Owen, for an assault conviction, the jury must find
that the defendant “knew that his actions were assaultive
and that, at least, he negligently caused physical injury by
failing to be aware of the risk that his actions would cause
such injury.” 

 (emphasis in original). Accordingly, defen-
dant was entitled to his alternative requested instructions,
which required the jury to find that defendant knew of the
assaultive nature of his conduct and that he was negligent
as to resulting injury. 

. The trial court erred in
declining to give those instructions.
34                                     State v. Scatamacchia

         We further conclude, however, that the error was
harmless. “We will affirm the judgment below if we deter-
mine that there was little likelihood that the error affected
the verdict.” 

 (internal quotation marks omitted) (citing
State v. Davis, 

, 

 (2003)). “To make
that determination, we consider the instructions as a whole
and in the context of the evidence and record at trial, includ-
ing the parties’ theories of the case with respect to the var-
ious charges and defenses at issue.” 

 (internal quotation
marks omitted) (citing State v. Payne, 

, 

 (2020)).

         Here, in light of the evidence and defendant’s the-
ory of self-defense, there is little likelihood that the outcome
would have been affected by instructing the jury that defen-
dant must have been at least criminally negligent in seri-
ously injuring K. Criminal negligence requires that a defen-
dant “fail[ed] to be aware of a substantial and unjustifiable
risk” such 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). A
“serious physical injury” is one “which creates a substantial
risk of death or which causes serious and protracted dis-
figurement, protracted impairment of health or protracted
loss or impairment of the function of any bodily organ.” ORS
161.015(8).

        At trial, it was undisputed that defendant knocked
K down, straddled her, held her by the hair, and punched
her in the face multiple times. Nor was there any dispute
that K suffered serious physical injuries as a result of those
punches. What was in dispute were the reason that defen-
dant punched K and the number of punches—either 5 or 6, as
defendant testified, or about 20, as K testified. Defendant’s
mental state as to resulting serious injury was irrelevant to
that question.

         More than the number of punches, the critical issue
at trial was whether defendant acted in self-defense. In con-
victing him, the jury either disbelieved his testimony that
the victim initiated the altercation or concluded that the
amount of force he used in response was disproportionate.
Cite as 

 (2022)                               35

See ORS 161.209 (“a person is justified in using physical
force upon another person for self-defense or to defend a
third person from what the person reasonably believes to be
the use or imminent use of unlawful physical force, and the
person may use a degree of force which the person reason-
ably believes to be necessary for the purpose”). Either way,
the question of whether defendant was criminally negligent
that K would be seriously injured was not relevant to that
determination. And in rejecting defendant’s claim of self-
defense, the jury necessarily found that the amount of force
he used, and consequently the risk of injury he created, was
unjustifiable under the circumstances.

         Ultimately, the jury necessarily found that defen-
dant deliberately and unjustifiably punched K’s face multi-
ple times from above with enough force to cause extensive
injuries. Consequently, there is little likelihood that the
jury would not have found that there was a substantial and
unjustifiable risk that K would suffer protracted disfigure-
ment, impairment of health, or impairment of bodily func-
tion as a result of his punches.

         We are guided by the Supreme Court’s harmless
error analysis in State v. Shedrick, 

, 

(2022). That case also involved jury instructions that erro-
neously omitted the requisite mental state of criminal neg-
ligence, but for the element of the value of property in the
crime of theft. 

. In determining that the error was
harmless, the court considered the specific evidence at trial,
the nature of criminal negligence, and “common knowledge”
that jurors can be expected to have. 

. The court
ultimately concluded that there was little likelihood that
the jury would not have found that the defendant was at
least criminally negligent with respect to his awareness
that “a sizeable bundle of cash” for refilling an ATM “was
worth a significant amount.” 

 Just as the circumstances
in Shedrick “indicated a substantial risk” that a sizeable
bundle of cash was worth a significant amount, here five or
six direct punches to the face at close range with sufficient
force to cause a concussion and a blowout orbital fracture
gave rise to a substantial risk that K would be seriously
injured. 

36                                     State v. Scatamacchia

          Defendant’s reliance on State v. Hatchell, 

, 

 (2022), is misplaced as that case arose
under markedly different facts and relied on a different
defense theory. In Hatchell, the defendant’s theory of the
case “was that he did not possess the requisite intent for
that level of assault particularly since [the victim’s] injuries
were caused by incidental contact with his shin and not his
foot from the kick.” 

. As a result, the jury could
have concluded that the defendant was not criminally neg-
ligent as to the risk that incidental contact with his shin
would cause serious injury. 

. Here, in contrast, the
defense theory did not hinge on defendant’s mental state.
Rather, defendant acknowledged that K’s injuries were
caused by his deliberate, not incidental, punches to her face.
As a result, Hatchell does not control. On this record, there
is little likelihood that instructing the jury that defendant
must have been criminally negligent in seriously injuring K
would have affected the outcome.
        Affirmed.