No. 187 March 27, 2024 591
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
AARON JEROME PFANNENSTIEL,
aka Aaron Pfannenstiel,
Defendant-Appellant.
Douglas County Circuit Court
20CR36598, 20CR16011; A178238 (Control), A178641
Ann Marie Simmons, Judge.
Argued and submitted January 25, 2024.
John Evans, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
KAMINS, J.
In Case No. 20CR36598, reversed and remanded; in Case
No. 20CR16011, affirmed.
Tookey, P. J., concurring in part, dissenting in part.
592 State v. Pfannenstiel
KAMINS, J.
Defendant appeals a judgment of conviction for one
count of assault in the second degree, ORS 163.175.1 On appeal,
he assigns error to the trial court’s failure to instruct the
jury as to the required mental state for the “serious physical
injury” element of second-degree assault. The state concedes
that the trial court plainly erred but contends that the error
was harmless. We agree that the trial court plainly erred,
and we further conclude that the error was not harmless. We
exercise our discretion to correct the error and reverse.
Defendant had a contentious relationship with
his neighbor, K. On the day that led to the charges in this
case, several teenagers visited defendant’s house and set off
fireworks, some of which blew onto K’s car. K responded by
washing away the teenagers’ fireworks with a garden hose
and, when one of the teenagers protested, spraying them in
the face. Later that evening, defendant, his girlfriend, and
three teenagers went to K’s house and began pounding on
his door with enough force that several pictures fell off the
wall. When K opened the door, a fight ensued.
K, an ex-Marine, placed defendant in a “vice grip”
that cut off the blood supply to his brain, which, according to
K, would put defendant in a stupor within six seconds and kill
him within 15. K’s wife came to the door, and two of defen-
dant’s companions attacked her, causing K to release defen-
dant and confront his wife’s attackers. When she left to get
a gun, K grabbed defendant again, again attempting to cut
off the blood supply to his brain long enough for him to pass
out. Defendant’s girlfriend hit K on the head with “a pipe, or a
beer bottle,” causing K to lose consciousness momentarily and
fracturing his skull. After K fell to the ground, several people
continued to hit him while defendant approached and hit K
in the eye. Defendant’s actions caused major damage to K’s
eye—as K put it, defendant “pulled [his] eye out.” K previously
had limited vision in that eye, due to a past injury requiring
six surgeries to place a lens implant and a new cornea. After
this incident, K permanently lost vision in that eye.
1
Defendant also appeals a judgment of conviction for one count of second-
degree disorderly conduct, ORS 166.025, in Case No. 20CR16011, but he does not
assign any errors related to that conviction.
Cite as 331 Or App 591 (2024) 593
At trial, defendant argued that he acted in self-
defense and did not intend to hurt K; rather, he was pan-
icked and trying to escape K’s life-threatening hold on him.
As to the element of serious physical injury, the prosecutor
explained to the jury that it only needed to find that defen-
dant’s conduct was assaultive in nature and that it did not
need to find a culpable mental state as to the element of seri-
ous physical injury. Specifically, the prosecutor argued “the
State does not have to show or prove beyond a reasonable
doubt that [defendant] knowingly meant to cause [serious
physical injury] * * *. I just have to show that he knew that
his conduct was, was of an assaultive nature.”
Consistent with the prosecutor’s argument, the jury
was instructed that, to convict defendant, it must find that
he “knowingly caused serious physical injury” to K. The
court elaborated that “knowingly means that the person
acts with an awareness that his conduct is of an assaultive
nature” but did not include a mental state as to the element
of injury. After being so instructed, the jury found defen-
dant guilty of second-degree assault.
We review jury instructions for errors of law. State
v. Theriault, 300 Or App 243, 250, 452 P3d 1051 (2019). If
we determine that the trial court committed plain error, we
must then decide whether to exercise our discretion to cor-
rect it. State v. Chemxananou, 319 Or App 636, 639-40, 510
P3d 954, rev den, 370 Or 303 (2022) (citing Ailes v. Portland
Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991)).
On appeal, defendant contends that the trial court
erred in failing to instruct the jury that the element of causing
serious physical injury also required a culpable mental state.
State v. Owen, 369 Or 288, 290, 505 P3d 953 (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.”
Id. (emphasis in original). Thus, as in Owen, and as the state
concedes, the trial court plainly erred in failing to instruct
the jury that defendant knew of the assaultive nature of his
conduct and that he was negligent as to resulting injury. Id.
at 323; State v. McKinney, 369 Or 325, 336, 505 P3d 946 (2022)
594 State v. Pfannenstiel
(holding that the trial court’s failure to instruct the jury that
a mental state attaches to the serious physical injury element
of second-degree assault amounts to plain error).
We further conclude that, had the jury been
instructed on the culpable mental state required for the seri-
ous physical injury element, it could have made a difference in
the outcome of the case. “In deciding whether to exercise dis-
cretion to correct instructional errors of this type, we and the
Supreme Court have primarily focused on whether the error
was harmless, that is, whether there is little likelihood that
it affected the verdict.” State v. Stone, 324 Or App 688, 693-
94, 527 P3d 800 (2023). And in determining whether instruc-
tional 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
(quoting State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020)).
Given the gravity of the error and its potential impact on the
verdict, we exercise our discretion to correct it.
In this case, it is not clear that the jury would have
concluded that defendant acted with criminal negligence as
to the substantial risk of serious physical injury. Criminal
negligence requires that a defendant “fail[ed] to be aware
of a substantial and unjustifiable risk” such that the “fail-
ure 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 disfigurement, protracted
impairment of health or protracted loss or impairment of
the function of any bodily organ.” ORS 161.015(8).
At trial, the defense theory was that defendant
was acting in a state of panic from being caught in K’s “vice
grip.” Indeed, as presented to the jury, K, an ex-Marine,
was trained in lethal combat and intentionally engaged
in a chokehold that could have killed defendant within 15
seconds. And, although there was no dispute that K sus-
tained a serious physical injury in losing vision in his eye,
there was evidence that K was unusually susceptible to that
injury given the previous damage to his eye. Thus, there is
Cite as 331 Or App 591 (2024) 595
evidence from which a reasonable factfinder could have con-
cluded that K’s particular vulnerability, not the force used
by defendant, caused serious physical injury to K. Regarding
the circumstances of the assault itself, although K testified
that defendant intentionally gouged out his eye, the jury was
not required to take that testimony at face value. Indeed, the
jury could have viewed K’s testimony as overstated, given
that K also testified that defendant had been attempting to
gouge out his eye during the entire altercation but had not
even knocked off K’s glasses until the end of the fight. The
jury might have found that, as defendant explained during
his police interview that was played to the jury, defendant
punched K in a panic without specifically aiming for K’s
left eye. Moreover, the only evidence that K’s eye had been
removed from the socket was from K himself—neither the
police report, the photos admitted into evidence, nor the med-
ical records depicted the injury in that manner. Although the
jury saw evidence of significant bruising around K’s eye, the
jury may have viewed that bruising as a by-product of the
injury (“[a]cute traumatic left ruptured globe”), and not nec-
essarily evidence that defendant aimed to gouge out K’s eye.
Had the jury had the opportunity to weigh the culpa-
ble mental state that applied to the injury element of second-
degree assault, it may have concluded that defendant gener-
ally struck K in an assaultive manner and doubted that such
conduct rose to the level of criminal negligence regarding
whether a serious physical injury would result. Finally, the
prosecutor compounded the trial court’s error by reinforcing
the instruction that no mental state was required for the ele-
ment of serious physical injury. Thus, the jury may have con-
cluded that defendant’s actions reflected an awareness that
his conduct was assaultive, but that he was not negligent as
to the risk of the serious physical injury that occurred.
We cannot conclude on this record that the plain
error was harmless; that is, that the verdict indicates that
the risk of serious physical injury to K was of such nature
and degree that defendant’s failure to be aware of it con-
stituted a gross deviation from the standard of care that a
reasonable person would exercise. See State v. Hatchell, 322
Or App 309, 312, 519 P3d 563 (2022) (concluding that “the
596 State v. Pfannenstiel
trial court plainly erred in failing to instruct the jury that
the mental state of criminal negligence applied to the serious
physical injury element of the second-degree assault count,
that the error was not harmless, and that it is appropriate
to exercise our discretion to correct that error”). We there-
fore reverse and remand defendant’s assault conviction.
In Case No. 20CR36598, reversed and remanded; in
Case No. 20CR16011, affirmed.
TOOKEY, P. J., concurring in part, dissenting in
part.
I agree with the majority that the trial court plainly
erred when it failed to instruct the jury as to the required
mental state for the “serious physical injury” element of
second-degree assault. I disagree that we should exercise
our discretion to correct the error, however, because in my
view, the likelihood that the error affected the verdict is
“extremely low.” State v. Sell, 328 Or App 82, 95, 536 P3d
1019 (2023) (declining to exercise discretion to correct as
plain error failure to instruct the jury that defendant had
to be at least criminally negligent with respect to the injury
element of an offense, because there was an “extremely low”
likelihood that the error affected the verdict).
For that reason, neither the gravity of the error
nor the ends of justice warrant exercising our discretion
to reverse and remand for a new trial based on the trial
court’s failure to give a mental-state instruction on the seri-
ous physical injury element. See State v. Horton, 327 Or App
256, 265, 535 P3d 338 (2023) (noting that the likelihood that
the error affected the verdict goes to the error’s “gravity”
and to “the ends of justice” in determining whether to exer-
cise our discretion to correct plain error).
An eye is an eye. It is “ ‘proverbially a delicate
organ’ ” that is “ ‘closely connected with intellectual, ner-
vous and physical functions.’ ” Eisensmith v. Buhl Optical
Co., 115 W Va 776, 178 SE 695, 697 (1934) (quoting Com. v.
Houtenbrink, 235 Mass 320, 324, 126 NE 669, 670 (1920));
see also Sanchick v. Michigan State Bd. of Examiners in
Optometry, 342 Mich 555, 560, 70 NW2d 757, 759 (1955)
(same). That is “common knowledge.” See State v. Shedrick,
Cite as 331 Or App 591 (2024) 597
370 Or 255, 271, 518 P3d 559 (2022) (considering jurors’
“common knowledge” about ATMs in concluding that failure
to give mental state instruction was harmless).
The conduct for which defendant was convicted—
the conduct that the victim testified occurred—was defen-
dant putting his finger in the victim’s eye and gouging it
out. Given common knowledge about eyes and the nature of
defendant’s assault, I think there is an “extremely low” like-
lihood that the error in this case affected the verdict; that
is, it is extremely likely that a jury would have found that
defendant was aware of a substantial and unjustifiable risk
of serious physical injury to defendant’s eye from gouging it
or, if he was unaware, that his failure to be aware constituted
a gross deviation from the standard of care a reasonable per-
son would observe. Id. (applying standard for determining
whether failure to give culpable mental state instruction was
harmless); see State v. Miles, 326 Or App 410, 423, 533 P3d
368 (2023) (declining to correct plain error because, “in the
context of tackling C from behind while she was handcuffed
at the wrists, we conclude that the trial court would have
found that defendant failed to be aware of a substantial risk
that so doing could cause a serious physical injury, or that
the risk was of such a nature and degree that defendant’s
failure to be aware of it was a gross deviation from the stan-
dard of care that a reasonable person would observe”).
The majority disagrees. It posits that a jury might
have found that, rather than gouging the victim’s eye (as
the victim explicitly testified occurred), the jury could have
instead found that “as defendant explained during his police
interview * * *, defendant punched [the victim] in a panic
without specifically aiming for [the victim’s] left eye.” 331
Or App at 595.
I see it differently. During his interview with police,
defendant acknowledged that he threw punches at the vic-
tim while the victim was on top of defendant, but defen-
dant never explained the nature of his conduct that caused
the victim’s eye injury.1 Indeed, as the majority recounts
1
I note that, during his interview with police, defendant initially lied to
police about the location of the altercation with the victim and his role in the
physical contact with the victim.
598 State v. Pfannenstiel
in explaining the facts of this case, the victim’s eye injury
occurred when defendant was no longer on top of the victim,
and that conduct was not addressed in defendant’s inter-
view with police. And certainly, during his interview, defen-
dant never said he did not attempt to gouge the victim’s eye
or that he did not “specifically aim[ ]” for the victim’s eye.
Put differently, although there are some inconsis-
tencies in the record regarding the altercation, there are no
inconsistencies regarding what caused the victim’s serious
physical injury; the only evidence in the record regarding
the specific cause of the victim’s serious physical injury was
the victim’s testimony to the jury.
Additionally, because the majority emphasizes that
the victim’s glasses were “not even knocked off * * * until the
end of the fight,” I note that, prior to defendant gouging the
victim’s eye, the victim’s glasses had been knocked off of the
victim’s head when defendant’s girlfriend hit the victim with
a “pipe or a beer bottle,” fracturing the victim’s skull and
causing him to momentarily lose consciousness. That is, the
victim’s glasses were not an impediment to defendant engag-
ing in the conduct that the victim testified caused his injury.
The majority also posits that a reasonable factfinder
could have concluded that it was the victim’s “particular vul-
nerability,” not the force used by defendant, that caused seri-
ous physical injury to the victim. In my view, the notion that a
reasonable factfinder could have concluded that defendant did
not use enough force to have been negligent as to the risk of
serious physical injury to the victim’s eye as a result of goug-
ing it is belied by both (1) photos in the record showing sub-
stantial dark purple bruising around the victim’s eye after
defendant’s assault and (2) the circumstances of the assault
itself. On the latter point, I note that no party disputed the
intensity of the physical altercation between defendant and
the victim.
Consequently, unlike the majority, I would affirm in
both Case No. 20CR36598 and Case No. 20CR16011.