Submitted: July 29, 2014.
Multnomah County Circuit Court. 111235241. John A. Wittmayer, Judge.
Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[266 Or.App. 524] 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). 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(1)(a). 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 P.2d 208 (1998). We state the relevant facts consistently with that standard.
The victim in this case was defendant's wife. Defendant's 14-year-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 [266 Or.App. 525] victim 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 ...