Problem: Did He "Knowingly" Assault with a Knife?

HISTORY: Pete Jantzi was convicted in the Circuit Court, Klamath County, of assault in the second degree, and he appealed. The Court of Appeals held that the defendant knew he had a dangerous weapon and that a confrontation was going to occur, but that he did not intend to stab the victim. Thus, the defendant acted "recklessly," not "knowingly," and, should be convicted of assault in the third degree rather than assault in the second degree. Affirmed as modified; remanded for resentencing. GILLETTE, J. FACTS Pete Jantzi, the defendant, testified and the trial court judge believed that he was asked to accompany Diane Anderson, who shared a house with the defendant and several other people, to the home of her estranged husband, Rex. While Diane was in the house talking with Rex, the defendant was using the blade of his knife to let the air out of the tires on Rex's van. Another person put sugar in the gas tank of the van. While the Andersons were arguing, Diane apparently threatened damage to Rex's van and indicated that someone might be tampering with the van at that moment. Rex's roommate ran out of the house and saw two men beside the van. He shouted and began to run toward the men. Rex ran from the house and began to chase the defendant, who ran down a bicycle path. The defendant, still holding his open knife, jumped into the bushes beside the path and landed in the weeds.

He crouched there, hoping that Rex would not see him and would pass by. Rex, however, jumped on top of the defendant and grabbed his shirt. They rolled over and Rex was stabbed in the abdomen by the defendant's knife. The defendant could not remember making a thrusting or swinging motion with the knife; he did not intend to stab Rex. OPINION The indictment charged that defendant "did unlawfully and knowingly cause physical injury to Rex Anderson by means of a deadly weapon, to-wit: knife, by stabbing the said Rex Anderson with said knife." ORS 163.175 provides that: (1) A person commits the crime of assault in the second degree if he: (b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon; "Knowingly" is defined in ORS 161.085(8): "Knowingly" or "with knowledge" when used with respect to conduct or to a circumstance described by a statute defining an offense means that a person acts with an awareness that [his] conduct is of a nature so described or that a circumstance so described exists. [According to the commentary to the New York Criminal Code that the Oregon Criminal Code was based on:] Under the formulations of the Model Penal Code (§ 2.02(2bii)) and the Illinois Criminal Code (§ 4-5(b)), "knowingly" is, in one phase, almost synonymous with "intentionally" in that a person achieves a given result "knowingly" when he "is practically certain" that his conduct will cause that result. This distinction between "knowingly" and "intentionally" in that context appears highly technical or semantic, and the [New York] Revised Penal Law does not employ the word "knowingly" in defining result offenses.

Murder of the common law variety, for example, is committed intentionally or not at all. (Commentary § 15.05, New York Revised Penal Law) [The trial court continued:] Basically, the facts of this case are: that Defendant was letting air out of the tires and he has an open knife. He was aware of what his knife is like. He is aware that it is a dangerous weapon. He runs up the bicycle path. He has a very firm grip on the knife, by his own admission, and he knows the knife is dangerous. It is not necessary for the state to prove that he thrust it or anything else. Quite frankly, this could have all been avoided if he had gotten rid of the knife, so he ‘knowingly caused physical injury to Rex Anderson.' And, therefore, I find him guilty of that particular charge. Although the trial judge found the defendant guilty of "knowingly" causing physical injury to Anderson, what he described in his findings is recklessness. The court found that defendant knew he had a dangerous weapon and that a confrontation was going to occur. The court believed that the defendant did not intend to stab Anderson. The court's conclusion seems to be based on the reasoning that because the defendant knew it was possible that an injury would occur, he acted "knowingly." However, a person who "is aware of and consciously disregards a substantial and unjustifiable risk" that an injury will occur acts "recklessly," not "knowingly." We have authority, pursuant to the Oregon Constitution, to enter the judgment that should have been entered in the court below. Assault in the third degree is a lesser included offense of the crime of assault in the second degree charged in the accusatory instrument in this case. We modify defendant's conviction to a conviction for the crime of assault in the third degree. Conviction affirmed as modified; remanded for resentencing.

Questions: 1. List all of the facts relevant to determining Pete Jantzi's state of mind.

2. State the Oregon statute's mental element for assault.

3. State how, and explain why, Oregon modified the MPC definition of "knowingly."

4. In your opinion, did Jantzi knowingly assault Rex Anderson? Back up your answer with the facts of the case and the trial and appellate court's opinions.