Submitted February 28, 2018
Multnomah County Circuit Court 15CR31262, 15CR57711 Kenneth
R. Walker, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Neil F. Byl, Deputy Public Defender, Offce of Public Defense
Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Lauren P. Robertson, Assistant Attorney General,
fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
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
Or.App. 209] TOOKEY, J.
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.
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).
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
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.
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. At the request of the state, he showed the
scar to the court during the course of 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.
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