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State v. Kinsey

Court of Appeals of Oregon

August 1, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
AARON DEON KINSEY, aka Dean Kinsey, aka Deon Kinsey, Defendant-Appellant.

          Submitted February 28, 2018

          Multnomah County Circuit Court 15CR31262, 15CR57711 Kenneth R. Walker, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Lauren P. Robertson, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment of conviction for second-degree assault, ORS 163.175, and menacing, ORS 163.190. For second-degree assault, the trial court imposed a sentence of 70 months in prison pursuant to ORS 137.700 after determining that defendant was ineligible for a lesser sentence because the victim had suffered a "significant physical injury" under ORS 137.712(2)(b)(B). On appeal, defendant argues that the trial court's determination under ORS 137.712 was not supported by sufficient evidence. Held: The trial court did not err in determining that defendant was ineligible for a lesser sentence because the evidence in the record, which included evidence of a scar on the victim's scalp that was visible to the trier of fact over six months after the assault, was legally sufficient to support a determination the victim had suffered a "significant physical injury" under ORS 137.712(2)(b)(B).

         [293 Or.App. 209] TOOKEY, J.

         In 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 victim 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 (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 (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 [293 Or.App. 210] waived 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 ...


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