Submitted March 22, 2018
Douglas County Circuit Court 14CR32479; William A. Marshall,
G. Lannet, Chief Defender, and Stacy M. Du Clos, Deputy
Public Defender, Criminal Appellate Section, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Susan Yorke, Assistant Attorney General, fled
the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Defendant, who slapped his three-year-old son on the
face hard enough to leave a red mark that persisted for
several days, appeals from a judgment of conviction for
first-degree criminal mistreatment, ORS 163.205, and
third-degree assault, ORS 163.165. An element of both those
crimes is that the defendant cause the victim "physical
injury," which is defined as "impairment of
physical condition or substantial pain." Defendant
argues that the trial court erred by not giving his requested
jury instruction defining the term "substantial
pain" for purposes of those two charges. Held:
The trial court erred by not delivering defendant's
requested special instruction on "substantial
pain," which was legally correct and supported by the
record. That error was not harmless.
Or.App. 341] HADLOCK, P. J.
who slapped his three-year-old son on the face hard enough to
leave a red mark that persisted for several days, challenges
his convictions for first-degree criminal mistreatment, ORS
163.205, and third-degree assault, ORS 163.165. An element of
both those crimes, as charged in this case, is that the
defendant caused the victim "physical injury." ORS
163.205(1)(b)(A); ORS 163.165(1)(h). "Physical
injury" is defined, in turn, to mean "impairment of
physical condition or substantial pain." ORS 161.015(7).
Defendant argues that the trial court erred by not giving his
requested jury instruction defining the term
"substantial pain" for purposes of those two
charges; he wished to have the jury instructed, among other
things, that "substantial pain" does not include
pain that is only "fleeting." Given the evidence
admitted in this case, we conclude that defendant was
entitled to have the jury instructed that pain that is only
"fleeting" is not "substantial pain." We
also conclude that the instructional error was not harmless.
Accordingly, we reverse and remand.
review "a trial court's refusal to give a requested
jury instruction for errors of law." State v.
McNally, 361 Or. 314, 320, 392 P.3d 721 (2017). Subject
to exceptions that we discuss below, "[a] criminal
defendant is entitled to have the jury instructed in
accordance with his or her theory of the case if the
instruction correctly states the law and there is evidence to
support giving it." Id. In determining whether
evidence supports giving the defendant's proposed
instruction, we view the facts in the light most favorable to
giving that instruction. State v. Wolf, 260 Or.App.
414, 417, 317 P.3d 377 (2013). Accordingly, although we
summarize the pertinent evidence admitted at trial to provide
context for the discussion that follows, our analysis
necessarily focuses on the evidence that defendant contends
would support a determination that his son did not experience
substantial pain as a result of being slapped.
night when defendant and his former partner (Rainwater) were
under the influence of methamphetamine, their three-year-old
son, J, spilled hair dye on the floor. Rainwater asked
defendant to discipline J; defendant responded [293 Or.App.
342] by slapping J on the face. J screamed, but Rainwater did
not notice any injury on him at the time. The next day,
Rainwater's mother, Zehe, observed a large red handprint
on the side of J's face. J told Zehe, "my daddy
smacked me" for not "being good." Zehe
photographed J's face and called the police. A responding
deputy observed finger marks and swelling on J's face,
which he photographed. The following day, J was examined at
CARES by Hansen, a nurse practitioner with 22 years of
experience. Hansen observed a large red bruise on J's
face, indicating broken blood vessels close to the surface of
the skin. She also noticed a little bit of swelling. Hansen,
who has seen "a couple hundred" bruises caused by
slapping, believed that the bruise of J's face was
consistent with having been slapped. Hansen opined that the
force that caused the bruise would have also caused
substantial pain. The marks faded two or three days after J
was examined at CARES; they never turned black and blue. The
record includes no evidence that J complained of pain after
was charged with first-degree criminal mistreatment,
third-degree assault, fourth-degree assault, and harassment.
The case was tried to a jury, which heard evidence of the
facts described above. In addition, defendant presented
testimony from Sheridan, who is the director of a
"forensic healthcare education research and intervention
program" at a college of nursing and who also serves as
a forensic nurse consultant for the State of Oregon. Sheridan
has specialized knowledge in the science of bruising, has
authored about 30 publications related to bruises and other
injuries to the skin, and has lectured hundreds of times on
the topic of forensic wound identification.
reviewed the police reports, photographs, and CARES report in
this case. In his assessment, the injury to J's face
"was erythema, redness, a patterned injury, redness
consistent with a slap like mechanism of injury."
Sheridan would not characterize the injury as a bruise, which
would involve "the escape of blood from the cells";
rather it was erythema, "the medical definition of
[which] is redness." He explained that even a
"very, very minor injury" will produce an
inflammatory response resulting in "this redness."
In Sheridan's opinion, the mark on J's face [293
Or.App. 343] represented a superficial injury that would not
have caused substantial pain.
parties and the court discussed jury instructions after the
parties rested their cases. Everyone agreed to uniform
instructions defining the elements of the charged crimes and
the statutory definition of "physical injury,"
including "substantial pain." Accordingly, as
relevant here, the court instructed the jury that the crimes
of third-degree assault, fourth-degree assault, and
first-degree criminal mistreatment all include the element
that the defendant "caused physical injury." The
court also instructed the jury that "[t]he term Physical
Injury means an injury that impairs a person's physical
condition or causes substantial pain."
addition to agreeing to those uniform instructions, defendant
requested the following special jury instruction explaining