State v. Kinsey

426 P.3d 674, 293 Or. App. 208
CourtCourt of Appeals of Oregon
DecidedAugust 1, 2018
DocketA161875 (Control); A161876
StatusPublished
Cited by8 cases

This text of 426 P.3d 674 (State v. Kinsey) 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. Kinsey, 426 P.3d 674, 293 Or. App. 208 (Or. Ct. App. 2018).

Opinion

TOOKEY, J.

*209In this consolidated appeal, defendant appeals a judgment of conviction for second-degree assault, ORS 163.175, and menacing, ORS 163.190. Defendant was sentenced to 70 months' incarceration for second-degree assault pursuant to ORS 137.700. On appeal, defendant assigns error to the trial court's determination that the victim of the assault suffered a "significant physical injury" under ORS 137.712(2)(b)(B), making him ineligible for a lesser sentence under ORS 137.712(1). As explained below, we conclude that the evidence in the record-which includes evidence of a scar on the victim's scalp that was visible to the trier of fact over six months after the assault-is legally sufficient to support the trial court's determination that the *675victim suffered a significant physical injury under ORS 137.712 (2)(b)(B) as a result of the assault. Accordingly, we affirm.1

" 'We review a claim that the sentencing court failed to comply with the requirements of law in imposing a sentence for errors of law.' " State v. Brewer , 260 Or. App. 607, 618, 320 P.3d 620, rev. den. , 355 Or. 380, 328 P.3d 696 (2014) (quoting State v. Capri , 248 Or. App. 391, 394, 273 P.3d 290 (2012) ). "We state the facts in the light most favorable to the state." State v. Longenecker , 175 Or. App. 33, 35, 27 P.3d 509, rev. den. , 332 Or. 656, 36 P.3d 973 (2001).

On or about July 20, 2015, defendant, after pointing a gun at the victim's head, pistol-whipped the victim, hitting him in the head three times. An ambulance then transported the victim to the hospital for medical treatment. The victim's medical records reflect that he had a "2 inch full-thickness laceration on the left side of his head." The laceration was closed using five staples, which were removed eight days later. The victim's neighbor testified that, the day after the assault, the victim's head looked "really swollen, and misshapen."

Defendant was indicted for two counts of first-degree assault, one count of unlawful use of a weapon with a firearm, and one count of unlawful use of a weapon. Defendant *210waived his right to a jury trial and his case was tried to the court.

During the course of defendant's trial, on February 16, 2016-over six months after defendant committed the assault-the victim testified that, as a result of the staples, he has a scar on his head, which is visible when he cuts his hair.2 At the request of the state, he showed the scar to the court during the course of the trial.3

The trial court found defendant guilty of two counts of second-degree assault and one count of unlawful use of a weapon, which it merged into a single count of second-degree assault. It also found defendant guilty of menacing.

A conviction of second-degree assault requires a minimum sentence of 70 months' imprisonment pursuant to ORS 137.700(2)(a)(G), unless a defendant is eligible for a downward departure sentence under ORS 137.712(1). At his sentencing hearing, defendant argued that he was eligible for a downward departure sentence under ORS 137.712, which provides, in pertinent part:

"(1)(a) Notwithstanding ORS 137.700 ***, when a person is convicted of *** assault in the second degree as defined in ORS 163.175(1)(b), *** the court may impose a sentence according to the rules of the Oregon Criminal Justice Commission that is less than the minimum sentence that otherwise may be required by ORS 137.700 *** if the court, on the record at sentencing, makes the findings set forth in subsection (2) of this section and finds that a substantial and compelling reason under the rules of the Oregon Criminal Justice Commission justifies the lesser sentence. ***
"* * * * *
*211"(2) A conviction is subject to subsection (1) of this section only if the sentencing court finds on the record by a preponderance of the evidence:
"* * * * *
"(b) If the conviction is for assault in the second degree:
"(A) That the victim was not physically injured by means of a deadly weapon;
"(B) That the victim did not suffer a significant physical injury; and *676"(C) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section."

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Cite This Page — Counsel Stack

Bluebook (online)
426 P.3d 674, 293 Or. App. 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kinsey-orctapp-2018.