Opinion
A178699
07-19-2023
STATE OF OREGON, Plaintiff-Respondent, v. RAYMOND WILLIAM COLBY III, Defendant-Appellant.
Ray Colby filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 June 2, 2023
Lane County Circuit Court 16CR44155; A178699 Debra K. Vogt, Judge.
Ray Colby filed the briefs pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
KAMINS, J.
Defendant appeals from a judgment of conviction for assault in the fourth degree, ORS 163.160, following a bench trial. Defendant raises a single assignment of error, asserting that the trial court erred when it did not grant him a new trial following this court's remand. We affirm.
This is the third time this case has come before us. We twice previously reversed and remanded for the trial court to make a record of what mental state, if any, it had applied to the "result" element of assault in the fourth degree. State v. Colby, 313 Or.App. 492, 493-94, 494 P.3d 370 (2021), rev den, 369 Or. 209 (2022) (Colby II); State v. Colby, 295 Or.App. 246, 248-49, 253, 433 P.3d 447 (2018) (Colby I). Following the second remand, the trial court rejected defendant's request for a new trial, and explained that, as to the "result" element, the evidence established that defendant had acted recklessly.
On appeal, defendant argues that, given the Supreme Court's rulings in State v. Owen, 369 Or. 288, 505 P.3d 953 (2022), State v. McKinney/Sniffer, 369 Or. 325, 505 P.3d 946 (2022), and State v. Hightower, 368 Or. 378, 491 P.3d 769 (2021), the proper remedy following the second remand was to order a new trial. We disagree. In defendant's last appeal, we declined to remand for a new trial. Colby II, 313 Or.App. at 494. Instead, we asked the trial court to "'explain what culpable mental state, if any, it determined applied to the result element of fourth-degree assault.'" Id. (quoting Colby I, 295 Or.App. at 248, 253). The court complied with our instruction and explained that it found that defendant had acted recklessly as to the physical injury element. Defendant did not argue below, nor does he now contend, that applying a reckless mental state to the physical injury element is legally impermissible. See Owen, 369 Or at 322 (for second-degree assault, the state "at a minimum, must prove that a defendant was criminally negligent with respect to the injury caused by the defendant's actions"). Therefore, the trial court did not err, and there is no basis for us to reverse and remand for a new trial.
Defendant is correct that, under the Supreme Court's reasoning in Hightower, "it is also necessary to evaluate the impact that the error identified by the appellate court had on how the record could have developed below" when determining whether a new trial is required. 368 Or at 391-92. Here, however, the trial court's error was in failing to explain a legal standard. If the trial court had originally done so at the end of defendant's trial, nothing about the underlying factual record would have changed. Thus, a new trial is not required.
Affirmed.