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State v. Roberts

Court of Appeals of Oregon

August 15, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL TED ROBERTS, Defendant-Appellant.

          Submitted March 22, 2018

          Douglas County Circuit Court 14CR32479; William A. Marshall, Judge.

          Ernest 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.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan Yorke, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case 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.

         [293 Or.App. 341] HADLOCK, P. J.

         Defendant, 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.

         We 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.

         One 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 the incident.

         Defendant 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.

         Sheridan 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.

         The 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." (Emphasis added.)

         In addition to agreeing to those uniform instructions, defendant requested the following special jury instruction explaining ...


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