State v. Lewis

337 P.3d 199, 266 Or. App. 523, 2014 Ore. App. LEXIS 1443
CourtCourt of Appeals of Oregon
DecidedOctober 22, 2014
Docket111235241; A152266
StatusPublished
Cited by15 cases

This text of 337 P.3d 199 (State v. Lewis) 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. Lewis, 337 P.3d 199, 266 Or. App. 523, 2014 Ore. App. LEXIS 1443 (Or. Ct. App. 2014).

Opinion

TOOKEY, J.

Defendant appeals a judgment of conviction for felony assault in the fourth degree, ORS 163.160 (Count 1); coercion, ORS 163.275 (Count 3); and two counts of harassment, ORS 166.065 (Counts 4 and 5).1 He seeks reversal of' his conviction for assault in the fourth degree, assigning error to the trial court’s denial of his motion for judgment of acquittal. We conclude that the state failed to present sufficient evidence that the victim in this case suffered “physical injury,” as required by ORS 163.160(l)(a).2 Accordingly, we reverse as to Count 1, remand for resentencing, and otherwise affirm.

In reviewing the denial of a motion for judgment of acquittal based on the sufficiency of the evidence, we “view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt.” State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998). We state the relevant facts consistently with that standard.

The victim in this case was defendant’s wife. Defendant’s 14-yeár-old son, T, did not live with defendant and the victim, but would stay with them on a regular basis. One night, while T was staying with them, T went to his bedroom and was “settling into bed” when he heard defendant “screaming at [the victim] about something.” A “couple of times,” he heard the victim yell, “Ouch. Stop it.” He also heard “sounds like something hitting the wall.” Based on those sounds, T thought that the victim “was getting hurt somehow.”

The next morning, while defendant was at work, T was home alone with the victim. T thought that the victim “appeared kind of beaten down, kind of depressed.” When he asked her about what he had heard the previous night, the [525]*525victim told him that defendant was pulling out her hair, and she pointed at some clumps of hair on the floor.

A few days later, the victim had a seizure, and paramedics were called to the house. While examining the victim, paramedics discovered multiple injuries. After speaking with T about what he had observed over the previous few days, the paramedics alerted the police, and the police later arrested defendant. Defendant was subsequently charged with two counts of assault in the fourth degree, one count of coercion, and two counts of harassment.

At trial, after the state presented its case, defendant moved for a judgment of acquittal on the charges of fourth-degree assault, arguing that the state had failed to present evidence of physical injury. In response, the state argued that a jury could view “hair getting ripped out of your head” as a physical impairment or substantial pain, especially given that there was also evidence that the victim said, “Ouch” and “Stop it.” The court agreed with the state and denied defendant’s motion. Defendant was subsequently acquitted of one count of assault in the fourth degree; as noted, he was convicted of one count each of assault in the fourth degree and coercion, and both counts of harassment.

On appeal, defendant argues that the trial court erred in denying his motion for judgment of acquittal on the charge of assault in the fourth degree (Count 1), because the state failed to present sufficient evidence of “physical injury.” As noted, ORS 163.160(l)(a) provides that, “[a] person commits the crime of assault in the fourth degree if the person *** [intentionally, knowingly or recklessly causes physical injury to another.” “Physical injury” is, in turn, defined as “impairment of physical condition or substantial pain.” ORS 161.015(7). Defendant contends that the state failed to present sufficient evidence for a rational trier of fact to have found, beyond a reasonable doubt, that the victim suffered either “impairment of physical condition” or “substantial pain” from having her hair pulled out. We address each contention in turn.

The phrase “impairment of physical condition,” as used in ORS 161.015(7), means “harm to the body that results in a reduction in one’s ability to use the body or a [526]*526bodily organ for less than a protracted period of time.” State v. Higgins, 165 Or App 442, 446-47, 998 P2d 222 (2000). That definition “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.” State v. Glazier, 253 Or App 109, 113, 288 P3d 1007 (2012), rev den, 353 Or 280 (2013).

Examples of injuries that can reasonably be considered impairments of a victim’s physical condition include a half-inch gash in the back of the head, because it disrupted the skin’s function of protecting the inner body from infection, State v. Hart, 222 Or App 285, 290-92, 193 P3d 42 (2008) ; a “heavy scrape” on the back, approximately one and one-half inches wide and four inches long, State v. Jones, 229 Or App 734, 738-39, 212 P3d 1292, rev den, 347 Or 446 (2009) ; and injuries to the ribs and legs that made it more difficult for the victim to engage in normal activities such as walking up and down stairs and lifting small objects, Glazier, 253 Or App at 112-13.

In contrast, injuries that are not considered impairments of a victim’s physical condition include a “slight” scratch on the cheek that the victim did not notice, was not painful, and was not noticeable after two to three days, State v. Rice, 48 Or App 115, 118, 616 P2d 538, rev den, 289 Or 741 (1980); scratches and scrapes on the neck and arm that went unnoticed by the victim, were not painful, and did not result in the reduction of the victim’s ability to use the body or a bodily organ for any period of time, Higgins, 165 Or App at 447; and a bruise on a 16-month-old child’s buttock that did not seem painful and did not diminish the child’s bodily movement or ability to engage in everyday activities, State v. Wright, 253 Or App 401, 405-06, 290 P3d 824 (2012).

In this case, defendant argues that the victim’s injury is more similar to the “slight” scratches in Higgins and Rice, and unlike the half-inch gash in Hart, because missing hair does not ordinarily disrupt the functioning of the skin. In response, the state does not contend that the victim’s injury impaired the function of her skin; instead, the state counters that a reasonable juror could infer that the victim’s loss of hair interfered to some degree with the [527]*527ordinary function of her hair, which, according to the state, includes protection, the regulation of body temperature, and the facilitation of evaporation of perspiration.

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Bluebook (online)
337 P.3d 199, 266 Or. App. 523, 2014 Ore. App. LEXIS 1443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-orctapp-2014.