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State v. Long

Court of Appeals of Oregon

June 21, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
NATHAN ASHLEY LONG, Defendant-Appellant.

          Submitted April 28, 2016

         Douglas County Circuit Court, 12CR2016FE George William Ambrosini, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Lindsey Burrows, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Nani Apo, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Following an altercation between defendant and his girlfriend, defendant was convicted of fourth-degree assault constituting domestic violence, which requires the state to prove, in part, that a person "cause[d] physical injury to another." ORS 163.160(1)(a). "Physical injury" is defined as "impairment of physical condition or substantial pain." ORS 161.015(7). On appeal, defendant argues that the record lacks evidence sufficient to permit a finding that his girlfriend suffered "substantial pain, " and that the trial court erred in giving the jury the opportunity to convict defendant on that theory of physical injury.

         Held: The trial court erred when it ruled that the state could proceed under both theories of "physical injury." Although it could reasonably be inferred that the girlfriend suffered some pain as a result of the altercation, the record, which contains no evidence of either the quality or duration of any such pain, lacks evidence to permit a reasonable inference that her pain was substantial or lasting.

         Conviction for fourth-degree assault reversed and remanded; otherwise affirmed.

         [286 Or.App. 335] GARRETT, J.

         Following an altercation between defendant and his girlfriend, Gregory, defendant was convicted of one count of fourth-degree assault constituting domestic violence, [1] which requires the state to prove, in part, that a person "cause[d] physical injury to another." ORS l63.l6O(1)(a). "Physical injury" is defined as "impairment of physical condition or substantial pain." ORS 161.015(7) (emphasis added). On appeal, defendant argues that the record lacks evidence sufficient to permit a finding that Gregory suffered "substantial pain, " and that the trial court erred in giving the jury the opportunity to convict defendant on that theory of physical injury. For the reasons explained below, we agree with defendant. The judgment is reversed and remanded as to the fourth-degree assault conviction, and otherwise affirmed.[2]

         We review the facts in the light most favorable to the state, which prevailed at trial. State v. Summers, 277 Or.App. 412, 413, 371 P.3d 1223, rev den, 360 Or. 465 (2016). Defendant and Gregory got into a fight after defendant refused to clean up the front yard. Gregory called a friend, Scevers, after the fight and told him that defendant had assaulted her. According to Scevers's trial testimony, Gregory was "very upset and crying, " and said that defendant had choked her and hit her in the jaw. At Gregory's request, Scevers called 9-1-1. He also testified that he noticed "marks" on Gregory's neck when he saw her several days after the attack.

         Officer Barrett responded to Scevers's call and interviewed Gregory and her roommate. The state's case at trial relied heavily on Barrett's testimony. Barrett testified that he observed swelling around Gregory's left cheek, bruising beginning to form near her left eye, and scratch marks around her collar bone and neck. According to Barrett, Gregory told him that the argument began after [286 Or.App. 336] she asked defendant to clean up the front yard; defendant yelled and "head butted" her. Defendant then pushed her into the kitchen and began kicking and punching her; at one point, defendant held her down on the ground with his hand around her neck. The altercation moved to the front porch, where defendant shoved Gregory against the front door, grabbed her around the throat, and shoved her into a porch chair. Defendant then left the scene. When Barrett asked whether Gregory could still breathe during the assault, she answered that her breathing was disrupted when defendant grabbed her by the neck in the kitchen, but not when he grabbed her neck on the porch. She said that if defendant had squeezed any harder she "wouldn't be able to breathe at all."

         Barrett also described his interview with the roommate, Cook. Cook told Barrett that she was in the bathroom when she overheard the argument; she emerged to see defendant attacking Gregory in the kitchen. Cook described defendant being on top of Gregory, then hitting, kicking, and choking her.

         The evidence at trial also included Barrett's photographs from the day of the assault, which show that Gregory's face is flushed and indicative of recent crying. The photographs depict what appears to be slight swelling of Gregory's cheek and several small scratches or bruises near her neck. ...


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