No. 326 June 28, 2023 631
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DERRICK MICHAEL BROSY,
Defendant-Appellant.
Jefferson County Circuit Court
20CR37634; A174881
Annette C. Hillman, Judge.
Argued and submitted October 21, 2022.
Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General; Benjamin Gutman, Solicitor General;
and Shannon T. Reel, Assistant Attorney General.
Before Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
ORTEGA, P. J.
Count 1 reversed and remanded; remanded for resen-
tencing; otherwise affirmed.
632 State v. Brosy
ORTEGA, P. J.
Defendant appeals from a judgment of conviction for
second-degree assault constituting domestic violence (Count
1), attempted strangulation constituting domestic violence
(Count 3), fourth-degree assault constituting domestic vio-
lence (Count 4), and harassment (Count 5).1 On appeal,
defendant raises nine assignments of error. In his first three
assignments, defendant challenges the trial court’s admis-
sion of testimony suggesting that he had used drugs the day
of the incident and the court’s giving of a related limiting
jury instruction. We conclude that the trial court did not err.
In his remaining six assignments of error, defendant argues
that, with respect to the second-degree assault count, the
trial court gave erroneous instructions on the mental state
requirement for the physical injury element and the danger-
ous weapon element of the offense. The state concedes that,
under State v. Fletcher, 263 Or App 630, 330 P3d 659 (2014),
and State v. Owen, 369 Or 288, 505 P3d 953 (2022), the trial
court erred, but argues that the error was harmless. We
agree with and accept the state’s concession that the trial
court erred. We further conclude, however, that under the
circumstances of this case, the error with respect to the dan-
gerous weapon instruction was not harmless. Accordingly,
we reverse and remand the conviction for second-degree
assault (Count 1), remand for resentencing, and otherwise
affirm.
We first recount the relevant historical facts. In
July 2020, defendant and L were in an intimate relationship
and temporarily living with L’s mother in her apartment.
On the day of the incident, defendant drove to another town
for an interview. Sometime after the interview, he called
L and said that “he [had] picked up some people, and they
were doing drugs in the car” and that “somebody ransacked
the car when he went into the store.” A few hours later, he
called L and said that he fell off a curb and hurt his foot.
L told defendant to come home, and when he did that eve-
ning, he and L went to the hospital. When they arrived at
1
The jury also found defendant guilty of unlawful use of a weapon (Count
2), which the court merged with the guilty verdict on Count 1. The jury acquitted
defendant of interfering with a peace officer (Count 6).
Cite as 326 Or App 631 (2023) 633
the hospital, L noticed that there were “little, white pills”
and syringes “all over” the back seat of the car. At the hos-
pital, defendant learned that he had broken one ankle and
sprained the other. Defendant was given aluminum crutches
and was released from the hospital.
L and defendant returned to the apartment, which
is on the second floor, sometime after midnight. Defendant
was being loud and talking “gibberish” and when L asked
what was wrong, he said that “he might have done meth
with some people.” Defendant wanted L to come with him to
the store to get cigarettes, but she refused and told him to
leave. He did, but when he attempted to go down the stairs
with his crutches, he fell and injured his head. L heard the
fall and went outside to see what happened. Defendant was
at the bottom of the first landing, and his head was bleed-
ing. He yelled at L to help him, and she went to the car to
remove her belongings, but it was locked. As recorded on
the apartment security video, defendant then approached L
using his crutches and said, “You want to see the size of
the gash on my head? Here. Let me give it to you.” He then
swung one of the crutches, striking the car and the left side
of L’s head. L screamed and yelled for someone to call the
police. Defendant then put his hands on L’s neck and choked
her. Defendant let go and grabbed L’s arm, and she accused
defendant of hitting her. He denied that, saying that he had
hit the car with the crutch and it bounced.
The police then arrived. At the scene, they observed
that L had a swollen lump on the left side of her forehead,
abrasions on her neck and upper chest, and complained
that her left arm hurt. Defendant denied that the crutch hit
L. He was transported to the hospital for his head injury,
where he was arrested.
In his first three assignments of error, defendant
argues that the trial court erred in denying his motion to
exclude testimony from L that defendant said that he might
have used meth that day and that she saw white pills and
syringes in defendant’s car and, as a consequence, erred
in giving a limiting jury instruction about that evidence.
At the start of trial, defendant objected to the admission
of any evidence of his drug use, arguing that that was an
634 State v. Brosy
irrelevant prior bad act, under OEC 404, and unduly preju-
dicial, under OEC 403. The trial court concluded that state-
ments defendant made to L “at or near the time of the inci-
dent” were admissible and, given the proximity in time to
the incident, L’s observations about the pills and syringes in
defendant’s car were also admissible. The court also deter-
mined that the evidence was not overly prejudicial meriting
exclusion from the trial. Later, during the settling of jury
instructions, defendant asked the court to give a limiting
jury instruction with respect to that evidence, and the court
gave the requested instruction.2
On appeal, defendant argues that the evidence was
irrelevant and not connected to his mental state because
the state did not show any facts connecting the evidence to
the incident, such as that he still was or could be under the
influence and how it would have affected him. Defendant
also argues that any probative value of the evidence was out-
weighed by its unfair prejudice because it was inflammatory
and left the jury to speculate about whether he was under
the influence. Finally, defendant argues that the error was
not harmless and that the limiting instruction did not make
it so.
We reject defendant’s arguments based on OEC
404 because the evidence was not inadmissible character
evidence. OEC 404(3) provides, in part, that “[e]vidence
of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show that the person
acted in conformity therewith.” Defendant’s statement to L
that he may have taken meth was made in response to her
asking him what was wrong with him. That statement was
not admitted for the purpose of proving defendant’s charac-
ter under OEC 404(3); it was part of the ongoing domestic
2
The court instructed the jury as follows:
“You have heard testimony from [L] that she saw small, white pills and
syringes in [defendant’s] car and that he told her people had used drugs in his
car. Further, you heard testimony from [L] that [defendant] told her he may
have used meth. You may only consider this evidence for motive, intent, or
plan as to whether the defendant committed the crimes alleged in this case.
“Specifically, you may not consider this evidence for the purpose of draw-
ing the inference that, because the defendant engaged in the prior conduct,
he may be guilty of the crimes alleged in this case.”
Cite as 326 Or App 631 (2023) 635
incident between defendant and L and was made to explain
his behavior to L—that is, it was direct evidence of defen-
dant’s state of mind. The pills and syringes that L observed
in defendant’s car were similarly part of his ongoing course
of conduct that day, leading up to the incident between them,
including that he told L earlier that day that “he picked up
some people, and they were doing drugs in the car.” We also
conclude that the trial court did not abuse its discretion in
admitting the evidence over defendant’s OEC 403 objection.
See, e.g., State v. Sewell, 257 Or App 462, 468-69, 307 P3d
464, rev den, 354 Or 389 (2013) (describing the abuse of dis-
cretion standard of review as it applies to OEC 403). Finally,
because the trial court did not err in admitting the evidence,
it also did not err in giving defendant’s requested limiting
instruction.
We turn to defendant’s assignments of error four
through nine, which challenge the instructions given to the
jury for the second-degree assault count. Defendant asserts
that the trial court erred in failing to instruct the jury on a
mental state for both the “dangerous weapon” and “serious
physical injury” elements of the offense. The state concedes
that the trial court erred in failing to give the instructions
that defendant requested as set out in defendant’s assign-
ments of error five, eight, and nine. We agree and accept the
state’s concession. Under Fletcher, a trial court errs when
it fails to instruct the jury that, to establish second-degree
assault under ORS 163.175(1)(b), the state must prove that
the defendant knew that the weapon used was a “dangerous
weapon.” 263 Or App at 633; see also State v. Higginbotham,
300 Or App 395, 396, 450 P3d 1042 (2019) (same). Likewise,
under Owen, a trial court errs when it fails to instruct a
jury on the culpable mental state that applies to the serious
physical injury element in second-degree assault, which is,
at a minimum, criminal negligence. 369 Or at 322. Because
the trial court did not instruct the jury as required by those
cases, it erred.
The state argues that we should nonetheless affirm
defendant’s conviction for second-degree assault, because
the instructional error was harmless. Because it is disposi-
tive, we address only the court’s failure to correctly instruct
636 State v. Brosy
the jury on the dangerous weapon element and conclude
that that error was not harmless.
In determining whether instructional error was
harmless, “we consider the instructions ‘as a whole and in
the context of the evidence and record at trial, including
the parties’ theories of the case with respect to the various
charges and defenses at issue.’ ” Owen, 369 Or at 323 (quot-
ing State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020)). A
party is prejudiced by instructional error if “the trial court’s
failure to give the requested instruction probably created
an erroneous impression of the law in the minds of the
members of the jury, and if that erroneous impression may
have affected the outcome of the case.” Hernandez v. Barbo
Machinery Co., 327 Or 99, 106-07, 957 P2d 147 (1998).
Defendant argues that the error was not harm-
less because the jury was never instructed that it had to
find that defendant knew that the crutch was a dangerous
weapon that would likely cause serious physical injury if
used in the manner in which he used it. He points out that
no other instruction touched on that element of the offense
and that it was that element which elevated the charge to
second-degree assault. He argues that failing to instruct
on an essential element of the offense has an inherent ten-
dency to affect the outcome, and further contends that the
fact that his actions threatened some kind of injury to L is
not the same as requiring the jury to find that defendant
knowingly used the crutch in a manner capable of causing
death or serious physical injury.
The state asserts that the error was harmless
because the case did not center on whether the crutch was a
dangerous weapon. The state argues that defendant did not
assert in closing that he did not know the crutch was a dan-
gerous weapon in the way in which it was used and instead
focused on whether he knowingly caused L’s injury. Under
those circumstances, the state maintains, a correct jury
instruction would not have affected the jury’s assessment
of the case. The state also asserted at oral argument that,
in finding defendant guilty of unlawful use of a weapon, the
jury necessarily found that defendant knew the crutch was
a dangerous weapon.
Cite as 326 Or App 631 (2023) 637
As charged in this case, to convict defendant of
second-degree assault, the jury had to find that defendant
“knowingly cause[d] physical injury to another by means of
a * * * dangerous weapon.” ORS 163.175(1)(b). Putting that
together with the applicable statutory definitions, for the
dangerous weapon element, the jury had to find that defen-
dant acted with an awareness that the aluminum crutch,
under the circumstances in which defendant used it against
L, was readily capable of causing death, a substantial risk
of death, protracted disfigurement, protracted impairment
of health, or protracted loss or impairment of the function of
any bodily organ.3
The jury was instructed that it had to find that
defendant “knowingly caused physical injury to [L] by
means of a dangerous weapon.” It was also instructed on the
statutory definitions of “knowingly,” “dangerous weapon,”
“physical injury,” and “serious physical injury,” and that
“knowingly caused physical injury” “means that the person
acts with an awareness that his conduct is of a nature that
would cause physical injury.”4 The jury, however, was not
instructed that defendant had to know that the crutch was
a dangerous weapon; indeed, the court explicitly ruled that
the jury did not have to so find in settling the jury instruc-
tions. As a result, defendant could not argue in closing that
his knowledge that the crutch was a dangerous weapon was
an issue in dispute. Given that, we are not persuaded by the
state’s main argument as to why the trial court’s error was
harmless.
We also are not persuaded by the state’s argument
that the jury necessarily found that defendant knew that
3
To act “knowingly,” the person must act “with an awareness that the con-
duct of the person is of a nature so described or that circumstance so described
exists.” ORS 161.085(8). “ ‘Physical injury’ means impairment of physical condi-
tion or substantial pain.” ORS 161.015(7). A “dangerous weapon” is “any weapon,
device, instrument, material or substance which under the circumstances in
which it is used, attempted to be used or threatened to be used, is readily capa-
ble of causing death or serious physical injury.” ORS 161.015(1). “ ‘Serious phys-
ical injury’ means physical injury which creates a substantial risk of death or
which causes serious and protracted disfigurement, protracted impairment of
health or protracted loss or impairment of the function of any bodily organ.” ORS
161.015(8).
4
The court erred in giving this instruction as it did not comport with the
requirements of Owen, which was decided after this case went to trial.
638 State v. Brosy
the crutch was a dangerous weapon when it found him
guilty of unlawful use of a weapon. For that charge, the jury
was instructed that the state had to prove that defendant
“intentionally attempted to use unlawfully against [L] any
dangerous weapon.” It was further instructed that “inten-
tionally” as used in that phrase meant “a person acts with
a conscious objective to use any dangerous weapon against
another person.” That set of instructions also did not attach
a mental state to the dangerous weapon element; that is,
the jury was not asked to determine if defendant knew that
he was using a dangerous weapon. Instead, the jury was
asked to find whether defendant intended to use the crutch
against L, and whether the crutch met the definition of a
dangerous weapon.
We conclude that, under the circumstances here,
the failure to properly instruct the jury was not harmless.
In closing, both the state and defendant emphasized that
what was in dispute was what defendant knew when he
swung the crutch. The state argued that the questions to
answer were, “Did he mean to hit her? Did he know what
he was doing?” However, the state also argued that the jury
could find that the crutch hit the car first and bounced into
L’s head or that defendant did not mean to hit L and still
find defendant guilty of second-degree assault, because the
jury only had to find that defendant was aware of the nature
of his conduct. Defendant also focused on whether he know-
ingly caused L injury with the crutch. He argued that, based
on the evidence, the crutch hit the car first and that he was
acting recklessly with regard to causing L physical injury,
but not knowingly, when he swung the crutch.
Based on the jury instructions, the jury necessarily
found that defendant acted “with an awareness that his con-
duct [wa]s of a nature that would cause physical injury,” that
is, he acted in a manner that would cause L impairment of
physical condition or substantial pain. In making that find-
ing, the jury did not have to reject defendant’s factual version
of events—that he did not mean to hit L and that the crutch
hit the car but bounced into L’s head. Also, the jury was not
asked to make any findings that touched on whether defen-
dant was aware that using the crutch in the manner he did
was readily capable of causing serious physical injury—that
Cite as 326 Or App 631 (2023) 639
is, a substantial risk of death or protracted impairment. The
nature of the conduct here—swinging an aluminum crutch
in the direction of a person—does not lead us to a conclusion
that the jury would have necessarily so found had it been
instructed correctly. Given that the main dispute in the case
was what defendant knew and what he had to know to be
convicted of second-degree assault, the court’s failure to cor-
rectly instruct the jury created an erroneous impression of
the law that had a likelihood of affecting the outcome of the
case.
Because we conclude that the error was not harmless
under the Oregon Constitution, we do not address whether
we would be required to reverse the conviction under the
United States Constitution. See State v. Perkins, 325 Or App
624, 630-31, 529 P3d 999 (2023) (explaining that the omis-
sion of an element of an offense from jury instructions
deprives a defendant of the right to have a jury determina-
tion on an element essential to guilt under the Sixth and
Fourteenth Amendments to the United States Constitution,
which requires reversal unless we are able to conclude that
the error is harmless beyond a reasonable doubt).
Count 1 reversed and remanded; remanded for
resentencing; otherwise affirmed.