State v. Rochefort ( 2023 )

832
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted May 9, conviction on Count 2 reversed and remanded for entry of
conviction for second-degree assault, remanded for resentencing, otherwise
affirmed November 1, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARY KATHERINE ROCHEFORT,
Defendant-Appellant.
Linn County Circuit Court
19CR82190; A176529
Rachel Kittson-MaQatish, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Conviction on Count 2 reversed and remanded for entry
of conviction for second-degree assault; remanded for resen-
tencing; otherwise affirmed.
Nonprecedential Memo Op: 328 Or App 832 (2023) 833
EGAN, J.
Defendant appeals from a judgment of conviction
after a jury trial in which she was convicted of attempted
second-degree murder, ORS 161.405 and ORS 163.115, first-
degree assault, ORS 163.185, and unlawful use of a weapon,
ORS 166.220. Defendant raises three assignments of error
on appeal. In her first assignment of error, she argues that
the trial court erred when it barred defendant from present-
ing lay witness testimony about her mental state at the time
of the incident. In her second assignment of error, she argues
that the trial court erred in denying defendant’s motion for
judgment of acquittal on the first-degree assault charge. In
her third assignment of error, she argues that the trial court
plainly erred when it failed to provide jury instructions stat-
ing that to find defendant guilty of first-degree assault, the
jury had to find that defendant had an intentional mental
state, or a criminally negligent mental state, with respect
to the physical-injury element of first-degree assault. We
reject the first assignment of error, reverse the first-degree
assault conviction and remand for entry of a conviction of
second-degree assault, and reject defendant’s plain-error
challenge as to jury instructions.
An extended discussion of the facts of the case would
not benefit the bench, the bar, or the public. Therefore, only
the pertinent facts, as necessary to our analysis, will be
included.
The state filed a motion in limine, seeking to exclude
testimony regarding statements by defendant in which she
had reported hearing voices and not taking her blood-pres-
sure medication, and statements by other witnesses describ-
ing defendant as “a little crazy” and delusional. The state
argued that those statements should be excluded on rel-
evancy grounds or, in the alternative, should be excluded
because their probative value did not substantially out-
weigh their prejudicial effect. After hearing the parties’
arguments, the trial court tentatively ruled that, while lay
witnesses are allowed to describe their observations, they
should refrain from making general statements describ-
ing defendant as crazy or delusional, as those statements
would not be relevant and, even if relevant, cumulative lay
834 State v. Rochefort
opinions making those statements would likely create a risk
of jury confusion if presented without expert testimony. The
court stated that defendant would still be allowed to make
an offer of proof at trial so that the ruling could be reevalu-
ated to establish the admissibility of such evidence. An offer
of proof was not presented during trial.
Defendant argues, in the first assignment of error,
that the trial court erred in ruling that defendant was
barred from eliciting lay witness testimony about her men-
tal state at the time of the incident. The state responds that
defendant failed to make an offer of proof at trial and that,
without an offer of proof, defendant has failed to properly
preserve the issue for review.
“Normally, an offer of proof is required to preserve
error when a trial court excludes testimony * * * to assure
that appellate courts are able to determine whether it was
error to exclude the evidence and whether any error was
likely to have affected the result of the case.” State v. Affeld,
307 Or 125, 128, 764 P2d 220 (1988). Some exceptions to
that rule apply when “the nature of the excluded evidence
is adequately reflected in the argument of counsel to the
court,” or when “the trial court refuses to allow an offer to be
made.” State v. Krieger, 291 Or App 450, 456, 422 P3d 300,
rev den, 363 Or 599 (2018).
Here, defendant did not adequately explain the
nature of the excluded evidence during the pretrial hear-
ing, nor did defendant make an offer of proof during trial,
despite the court’s statement that it would entertain an
offer of proof. Thus, defendant has not provided us with a
record from which we can determine whether error actu-
ally occurred and, if so, whether such error was prejudicial.
See Affeld, 307 Or at 128 (regarding importance of offer of
proof); State v. Khoshnaw, 286 Or App 246, 250-53, 399 P3d
1083, rev den, 362 Or 208 (2017) (failure to make offer of
proof prevented determination that testimony was improp-
erly excluded); State v. Clark, 284 Or App 197, 211-12, 392
P3d 337, rev den, 361 Or 803 (2017) (failure to make offer of
proof precluded determination of reversible error in exclud-
ing testimony).
Nonprecedential Memo Op: 328 Or App 832 (2023) 835
Defendant argues, in the second assignment of
error, that the court erred when it denied defendant’s motion
for judgment of acquittal on first-degree assault, because
the state failed to present sufficient evidence to support an
inference that the victim suffered serious physical injury,
as required by ORS 163.185(1)(a).1 Serious physical injury is
defined by ORS 161.015(8) as “physical injury which creates
a substantial risk of death,” and “physical injury” is defined
by ORS 161.015(7) as “impairment of physical condition or
substantial pain.” The state concedes that it failed to pres-
ent sufficient evidence to support an inference that the vic-
tim suffered serious physical injury but argues that the jury
did find that the victim suffered physical injury; therefore,
the state contends, the proper remedy is to remand for entry
of a conviction for second-degree assault. The state explains
that in convicting defendant of first-degree assault, the jury
necessarily found that defendant caused the victim phys-
ical injury by means of a deadly or dangerous weapon as
required by second-degree assault, ORS 163.175. We agree,
accept the state’s concession, and reverse and remand for
entry of a conviction of second-degree assault.
Defendant argues, in the third assignment of error,
that the court plainly erred by failing to instruct the jury
that the state needed to prove intent as to the serious-physi-
cal-injury element of first-degree assault. The state responds
that this issue is moot if we accept the state’s concession
on the second assignment of error. We disagree, failing to
instruct the jury on the required mental state as to the seri-
ous physical-injury element would affect the second-degree
assault conviction as second-degree assault requires an
intentional or criminally negligent mental state as to the
physical-injury element; therefore, we must address this
assignment of error.
“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. McKinney/Shiffer,
1
ORS 163.185(1) provides, in relevant part, that:
“A person commits the crime of assault in the first degree if the person:
“(a) Intentionally causes serious physical injury to another by means of a
deadly or dangerous weapon[.]”
836 State v. Rochefort
369 Or 325, 333, 505 P3d 946 (2022). We agree with defen-
dant that the trial court’s failure to instruct the jury on
the required mental state as to the serious physical-injury
element was one of law, is not reasonably in dispute, and
appears on the face of the record. Id. at 333-34. “Although
an error occurred in the trial court, we will affirm if there
is little likelihood that the particular error affected the ver-
dict.” Id. at 334 (internal quotation marks omitted).
The state argues that even if the court plainly
erred, such error was harmless because the jury convicted
defendant of attempted second-degree murder based on the
same act that produced the injury for the assault conviction.
In order to convict defendant of attempted second-degree
murder, the jury was instructed and required to find that
defendant intended to cause the victim’s death and took a
substantial step toward doing so.2 See State v. Hale, 335 Or
612, 628-29, 75 P3d 448 (2017) (court discerned from verdicts
on other counts that error in failing to give jury-concurrence
instruction was harmless for some counts). In light of the
jury’s finding that defendant “intentionally attempted to
cause the death of” the victim, the jury would have found
that defendant did intend to cause the victim serious phys-
ical injury. Therefore, we do not exercise our discretion to
correct the error as we are not persuaded that it would have
affected the outcome. State v. Kerne, 289 Or App 345, 349,
410 P3d 369 (2017), rev den, 363 Or 119 (2018) (This court
“will not and cannot exercise [its] discretion to correct a
plain error is when that error is harmless, that is, when
there is little likelihood that the error affected the jury’s
verdict”).
Conviction on Count 2 reversed and remanded for
entry of conviction for second-degree assault; remanded for
resentencing; otherwise affirmed.
2
The jury was instructed that in order to find defendant guilty of attempted
murder, they must find that defendant “intentionally attempted to cause the
death of” the victim.