No. 490 September 20, 2023 203

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

RAYMOND BLAINE STONE,

Defendant-Appellant.

Lane County Circuit Court

20CR64831; A177223

Bradley A. Cascagnette, Judge.

Submitted August 7, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Stephanie J. Hortsch, Deputy Public Defender, 

Office of Public Defense Services, for petition.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and E. Nani Apo, Assistant Attorney 

General, for response.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

AOYAGI, P. J.

Reconsideration allowed; former opinion modified and 

adhered to as modified.
204 State v. Stone
Cite as 328 Or App 203 (2023) 205

AOYAGI, J.

Defendant requests that we reconsider our decision 

in State v. Stone, 326 Or App 200, 532 P3d 90 (2023), specifically the remedy portion. In Stone, we reversed defendant’s 

conviction for second-degree assault, ORS 163.175(1)(a), 

based on the legal insufficiency of the evidence to prove that 

crime, and we remanded “for further proceedings, which 

may include a new trial on other lesser included offenses.” 

Stone, 326 Or App at 201. As described below, we grant 

reconsideration, clarify one aspect of our former opinion, 

and otherwise adhere to our former opinion.

Defendant was charged with first-degree assault, 

ORS 163.185, for intentionally causing serious physical injury 

to G with a dangerous weapon. At trial, the jury was asked 

to decide whether defendant committed the charged offense 

or any of four unpleaded lesser included offenses: a nonweapons theory of second-degree assault, ORS 163.175(1)(a) 

(“[i]ntentionally or knowingly causes serious physical injury 

to another”); a weapons theory of second-degree assault, ORS 

163.175(1)(b) (“[i]ntentionally or knowingly causes physical 

injury to another by means of a * ** dangerous weapon”); 

third-degree assault, ORS 163.165(1)(a) (“[r]ecklessly causes 

serious physical injury to another by means of a * ** dangerous weapon”); or fourth-degree assault, ORS 163.160(1)(a) 

(“[i]ntentionally, knowingly, or recklessly causes physical 

injury to another”).

The jury found defendant not guilty of first-degree 

assault, but guilty of the nonweapons theory of seconddegree assault. That combination of verdicts means that the 

jury necessarily found that defendant caused serious physical injury to G but either did not act intentionally or did 

not use a dangerous weapon. Stone, 326 Or App at 213 n 7 

(discussing same). The jury did not render verdicts on the 

other three lesser included offenses.

On appeal, we held that the evidence was legally 

insufficient to prove “serious physical injury,” a required 

element of the nonweapons theory of second-degree assault. 

Id. at 212. Given the circumstances, we concluded that the 

appropriate remedy was to “reverse defendant’s conviction 
206 State v. Stone

for second-degree assault under ORS 163.175(1)(a) and 

remand for further proceedings, which may include a new 

trial on lesser included offenses that do not require ‘serious 

physical injury.’” Id. at 212-13. Defendant takes issue with 

that remedy, making two arguments.1

First, defendant contends that we erred in holding 

that he may be retried on the weapons theory of seconddegree assault, ORS 163.175(1)(b). He argues that the 

weapons theory of second-degree assault requires that he 

intentionally caused physical injury to G with a dangerous 

weapon and that such theory is now foreclosed by the jury’s 

verdict on first-degree assault.2

 We reject that argument. 

The minimum required culpable mental state for seconddegree assault under ORS 163.175(1)(b) is “knowingly,” the 

state requested a “knowing” instruction on that offense, and 

the trial court instructed the jury that what the state was 

required to prove was that defendant “knowingly caused 

physical injury to [G] by means of a dangerous weapon.” It is 

true that the instruction as a whole was inartfully drafted, 

creating a potential ambiguity (that no one seems to have 

noticed at the time) as to whether the required mental 

state was intentional or knowing.3

 Had the jury rendered 

1 In their original appellate briefing, neither party addressed the appropriate remedy in the event of reversal. On reconsideration, defendant asks that we 

remand for entry of a conviction for fourth-degree assault, while the state maintains that the remedy provided in our former opinion is correct.

2 The first jury necessarily found that defendant either did not act intentionally or did not use a dangerous weapon, so double jeopardy precludes retrial of a 

lesser included offense that would require both those findings. However, it does 

not preclude retrial of a lesser included offense that would require only one of 

those findings, because, as defendant acknowledges, double jeopardy precludes 

relitigating only those issues that were necessarily decided in a prior trial. See 

State v. Mozorosky, 277 Or 493, 499, 561 P2d 588 (1977) (“The crux of the test is 

whether a rational jury could have grounded its verdict upon an issue other than 

that which the defendant seeks to foreclose from consideration.” (Internal quotation marks omitted.)). 

3 As to the elements of the crime of second-degree assault on a weapons theory, the full instruction given to the jury was as follows: 

“Oregon law provides that a person commits the crime of assault in the 

second degree if the person intentionally causes physical injury to another by 

use of a dangerous weapon. 

“In this case, to establish assault in the second degree, the state must 

prove beyond a reasonable doubt the following elements: 

“(1) The act occurred on or about November 24, 2020; and 
Cite as 328 Or App 203 (2023) 207

a verdict on the weapons theory of second-degree assault, 

that might raise an interesting question as to how the verdict should be understood for double-jeopardy purposes. The 

jury did not render a verdict, however, so we do not see how 

the instructional ambiguity precludes a retrial on seconddegree assault, ORS 163.175(1)(b), for knowingly causing physical injury to G by means of a dangerous weapon. 

Defendant cites no persuasive authority. We therefore reject 

defendant’s first argument.

Second, defendant contends that he cannot be 

retried for third-degree assault, ORS 163.165(1)(a), and 

that our decision “includes contradictory language” on that 

point. The state concedes, and we agree, that defendant cannot be retried for third-degree assault. For clarity, we revise 

our former opinion to address that issue. First, on the top 

of page 213, we replace the existing sentence to which footnote 7 is attached with this sentence: “It did not address 

the other lesser-included offenses, nor do its findings foreclose those other theories, except for third-degree assault, 

which cannot be retried because third-degree assault under 

ORS 163.165(1)(a) requires proof of ‘serious physical injury.’” 

Footnote 7 remains attached. Second, in the sentence that 

begins on the last line of page 213 and continues onto page 

214, we delete the words “at a minimum” so that the concluding clause reads, “including the weapons theory of seconddegree assault.”

Reconsideration allowed; former opinion modified 

and adhered to as modified.

“(2) Raymond Blaine Stone knowingly caused physical injury to [G] by 

means of a dangerous weapon.”