State v. Glazier

288 P.3d 1007, 253 Or. App. 109, 2012 WL 5286180, 2012 Ore. App. LEXIS 1298
CourtCourt of Appeals of Oregon
DecidedOctober 24, 2012
DocketDV0920661; A144711
StatusPublished
Cited by21 cases

This text of 288 P.3d 1007 (State v. Glazier) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Glazier, 288 P.3d 1007, 253 Or. App. 109, 2012 WL 5286180, 2012 Ore. App. LEXIS 1298 (Or. Ct. App. 2012).

Opinion

BREWER, J.

Defendant was convicted of one count of assault in the second degree and two counts of assault in the fourth degree, arising out of an altercation between defendant and the victim, his wife. On appeal, defendant assigns error to the trial court’s denial of his motion for a judgment of acquittal and motion for a new trial, contending that the evidence was insufficient to establish “physical injury,” as required for a conviction of fourth-degree assault, and that the state had failed to establish that defendant inflicted injury by means of a “dangerous weapon,” as required for a conviction of second-degree assault. Defendant also contends that the guilty verdicts should merge into a single assault conviction. We conclude that the trial court erred in declining to merge the guilty verdicts and otherwise affirm.

In reviewing the denial of defendant’s motion for a judgment of acquittal, we determine whether the record contains evidence from which a rational trier of fact, drawing all reasonable inferences in the light most favorable to the state, could find that all of the elements of the charged offenses were proved beyond a reasonable doubt. State v. Simons, 214 Or App 675, 167 P3d 476 (2007), rev den, 344 Or 43 (2008). On the morning of May 29, 2009, defendant pulled the victim off her bed by the ankle, causing her to hit her head and left hip as she landed on the hardwood floor. Defendant then dragged her into the hallway, hitting her left hip on the doorjamb and her right hip on the wall. He then dragged her by her arm into an area between the dining and living rooms and struck her head against the hardwood floor four or five times. Defendant then kicked the victim in the torso.

One of the officers who investigated the incident noted that, at the scene, the victim described pain on the right side of her head, although the officer did not observe immediate bruising on the victim’s head. The victim testified, however, that as a result of having her head hit against the floor, she had “quite a knot” on the right side of her scalp and that her head was very sore. The investigating officer noted red marks and bruising on the victim’s sides. The victim also testified that her neck and shoulders were sore after the incident and that she could not turn her head for several [112]*112weeks. The victim’s injuries did not prevent her from packing her car on the night of the incident or from moving out of the house the next day. The victim did not immediately seek medical attention for her injuries; she did, however, eventually go to the doctor for examination and treatment.

Defendant was charged with multiple offenses. A jury ultimately convicted him of second-degree assault by means of a dangerous weapon (Count 1) based on the head injuries that the victim sustained, and two counts of fourth-degree assault, based on the injuries to the victim’s ribs (Count 5) and legs (Count 6). At sentencing, the trial court determined that, although defendant’s conduct had caused distinct injuries to separate parts of the victim’s body, the acts that caused those injuries were part of the same criminal episode and the same incident. For that reason, the court imposed concurrent sentences on the three assault convictions; however, the court declined to merge the guilty verdicts on those charges into a single conviction. Defendant appeals from the ensuing judgment of conviction.

In his first assignment of error, defendant contends that the trial court erred in denying his motion for a judgment of acquittal on the fourth-degree assault convictions on the ground that the evidence was insufficient to establish that his conduct caused physical injury to the victim.1 A person commits the crime of assault in the fourth degree when the person “intentionally, knowingly or recklessly causes physical injury to another.” ORS 163.160(l)(a). “Physical injury” is defined as “impairment of physical condition or substantial pain.” ORS 161.015(7). The state does not rely on a “substantial pain” theory in this case. Thus, we focus on whether there was evidence that the victim suffered “impairment of physical condition.”

Impairment of physical condition means “harm to the body that results in a reduction in one’s ability to use the body or a bodily organ for less than a protracted period of time.” State v. Higgins, 165 Or App 442, 446-47, 998 P2d 222 (2000). Defendant notes that we have held that a heavy scrape or gash that breaks the skin qualifies as [113]*113impairment of physical condition. See, e.g., State v. Jones, 229 Or App 734, 738-39, 212 P3d 1292, rev den, 347 Or 446 (2009) (heavy scrape was significant and was capable of disrupting the ordinary function of the skin); State v. Hart, 222 Or App 285, 291, 193 P3d 42 (2008) (one-half inch gash on back of victim’s head was legally sufficient evidence of “impairment of physical condition”). By contrast, defendant asserts that a bruise, however painful, does not impair a physical condition if it has no impact on the victim’s use of his or her body. He relies on our decision in Higgins, 165 Or App at 444, where we held that scrapes on the victim’s neck and arm that were neither painful nor bleeding were insufficient to establish impairment of physical condition because the victim suffered no diminished ability to use his neck and arm for any period of time. Defendant asserts that there was no evidence that the bruising to the victim’s ribs and legs impaired her use of those body parts or any other body part and, accordingly, the trial court erred in denying his motion for a judgment of acquittal on the fourth-degree assault charges. We disagree.

In Higgins, we reaffirmed our conclusion in State v. Cetto, 66 Or App 337, 674 P2d 66, rev den, 296 Or 712 (1984), that, for example, a “swollen lip impairs the ordinary function of a body part, the mouth.” 165 Or App at 448. Thus, we held, our statement that “impairment of physical condition means harm to the body that results in a reduction in one’s ability to use the body or a bodily organ,” id. at 446-47, should be understood to include not only impairment of voluntary use of a body part, but also of the ordinary function of a body part. Here, the victim testified that the pain arising from her injuries made it more difficult for her to engage in normal activities such as walking up and down stairs and lifting small objects. That evidence was sufficient to support the inference that the posited injuries caused impairment for purposes of establishing physical injury on the fourth-degree assault charges.

In his third assignment of error, defendant contends that the trial court erred in denying his motion for a judgment of acquittal on the second-degree assault charge, which was based on defendant’s acts of striking the victim’s head against the hardwood floor several times. A person commits [114]*114the offense of assault in the second degree if the person “[intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon [.]” ORS 163.175. “Dangerous weapon” is defined in ORS 161.015(1) ás

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Cite This Page — Counsel Stack

Bluebook (online)
288 P.3d 1007, 253 Or. App. 109, 2012 WL 5286180, 2012 Ore. App. LEXIS 1298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-glazier-orctapp-2012.