Background
Omar Said Ahmed was convicted of multiple offenses arising from physical altercations with his former intimate partner, D, and with police. His appeal challenged three felony fourth-degree assault convictions based on incidents that occurred on separate dates in the small apartment where D lived with her four minor children.
Oregon law elevates fourth-degree assault from a misdemeanor to a felony when the assault is committed in the immediate presence of, or witnessed by, a qualifying minor child. The trial court did not instruct the jury that Ahmed had to act with at least criminal negligence concerning the presence of a minor child. Ahmed had not objected to the omission at trial but argued on appeal that it constituted plain error.
The Court’s Holding
The Oregon Court of Appeals assumed without deciding that the omitted instruction was plain error. It nevertheless declined to exercise its discretion to correct the error because the record showed little likelihood that the omission affected the verdict.
The evidence showed clear sight lines among the apartment’s door, stairs, living room, and kitchen, where the assaults occurred. Evidence also indicated that a four-year-old saw the first assault and tried to hit Ahmed back, children were on nearby stairs during the second assault, and several children witnessed portions of the third assault, with one calling police. Given those facts, the court concluded that a jury was unlikely to find Ahmed was not at least criminally negligent regarding the risk that a child would be present. The court therefore affirmed.
Key Takeaways
- The court assumed that omitting a culpable-mental-state instruction for the child-presence element was plain error but did not definitively decide that issue.
- Whether an unpreserved instructional error likely affected the verdict carries substantial weight in deciding whether to correct plain error.
- The apartment’s layout and evidence that children actually witnessed the assaults made the alleged error insufficiently grave to warrant reversal.
Why It Matters
The decision illustrates that establishing plain instructional error does not automatically produce reversal. An appellant must also persuade the court to exercise its discretion to correct the error, and strong record evidence supporting the omitted element may defeat that request.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as permitted by ORAP 10.30(1).