State v. Tellez-Suarez , 322 Or. App. 337 ( 2022 )

337
Submitted on remand from the Oregon Supreme Court August 4; supplemental
judgment reversed, remanded for resentencing, otherwise affirmed
October 12, 2022; petition for review denied March 30, 2023 (370 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ELISEO TELLEZ-SUAREZ,
Defendant-Appellant.
Washington County Circuit Court
18CR20640; A168847
519 P3d 561
Defendant appealed a judgment of conviction for first-degree criminal mis-
treatment and third-degree assault of his seven-year-old son. In a prior opinion,
the Court of Appeals affirmed the conviction but reversed and remanded defen-
dant’s sentence. The Supreme Court vacated that opinion and remanded the case
for reconsideration in light of State v. Owen, 369 Or 288, 505 P3d 953 (2022), and
State v. McKinney/Shiffer, 369 Or 325, 505 P3d 946 (2022). The Supreme Court’s
remand implicated only one assignment of error raised in defendant’s appeal,
which argued that the trial court plainly erred in omitting a culpable mental
state for the element of resulting physical injury. Held: The Court of Appeals
declined to exercise its discretion to correct any error because the jury’s verdict
indicates that any error was harmless.
Supplemental judgment reversed; remanded for resentencing; otherwise
affirmed.
On remand from the Oregon Supreme Court, State v.
Tellez-Suarez, 369 Or 855, 512 P3d 447 (2022).
Oscar Garcia, Judge.
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.
Supplemental judgment reversed; remanded for resen-
tencing; otherwise affirmed.
338 State v. Tellez-Suarez
KAMINS, J.
This case is before us on remand from the Supreme
Court. Defendant was convicted of two counts each of crim-
inal 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 req-
uisite culpable mental state, the second and third assign-
ments related to the nonunanimous jury instruction, and
the fourth and fifth assignments regarded aspects of defen-
dant’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 P3d 396 (2021) (Tellez-Suarez I), vac’d in part
and rem’d, 369 Or 855, 512 P3d 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 P3d 953 (2022), and State v.
McKinney/Shiffer, 369 Or 325, 505 P3d 946 (2022).” Tellez-
Suarez II, 369 Or 855. 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 result-
ing 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 (“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
1
ORS 163.205 and ORS 163.165 have both been amended since defendant
committed his crimes; however, because those amendments do not affect our
analysis, we refer to the current versions of those statutes in this opinion.
Cite as 322 Or App 337 (2022) 339
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 unjus-
tifiable risk * * * of such nature and degree that the failure
to be aware of it constitutes a gross deviation from the stan-
dard 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 commit-
ted 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 negli-
gent with respect to the risk that the child could be injured
as a result. See State v. Chemxananou, 319 Or App 636, 640,
510 P3d 954 (2022) (declining to exercise discretion because
there was little likelihood that the jury, having found that
the defendant knowingly engaged in assaultive conduct
toward his children, would find that he was not at least neg-
ligent with respect to the fact that they could be injured as
a result); Owen, 369 Or at 324 (error was harmless because
the jury found that the defendant knowingly engaged in
assaultive conduct and used a dangerous weapon and thus
“would have found that, at least, he was criminally negli-
gent in failing to appreciate the risk of injury”).
We remand for the trial court to correct the sen-
tencing errors identified in Tellez-Suarez I. 310 Or App at
355-56 (concluding that the trial court erred in ordering res-
titution and in denying eligibility for alternative incarcera-
tion programs).
Supplemental judgment reversed; remanded for resen-
tencing; otherwise affirmed.