and submitted September 18, 2018.
Clackamas County Circuit Court CR1501925; Katherine E. Weber,
Blumenthal, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Contreras, Assistant Attorney General, argued the cause for
respondent. On the brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Sharia
Mayfeld, Assistant Attorney General.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
and remanded as to Counts 3, 4, and 7; otherwise affrmed.
Summary: Defendant was convicted of three counts of felony
fourth-degree assault, in connection with three separate
domestic violence incidents. Pursuant to ORS 163.160(3)(d),
he was convicted of felonies, rather than misdemeanors, on
the basis that he knew that the victim was pregnant at the
time of each assault. At trial, defendant had moved for
judgment of acquittal, arguing that the evidence was
insuffcient to prove that the victim was pregnant when the
assaults occurred. The trial court denied that motion. On
appeal, defendant assigns error to the denial of his motion
for judgment of acquittal.
On this record, the evidence was insuffcient to allow a
factfnder to fnd that the victim was pregnant when each of
the assaults occurred. Although it is possible that she was
pregnant at the time of each assault, a factfnder could not
make a reasonable inference on this record and would have to
resort to impermissible speculation. Defendant's felony
conviction on Counts 3, 4, and 7 are reversed and remanded
for entry of misdemeanor convictions on those counts.
and remanded as to Counts 3, 4 and 7; otherwise affrmed. [296
was convicted of multiple crimes, including three counts of
felony fourth-degree assault (Counts 3, 4, and 7), after a
series of incidents involving his girlfriend, J. The three
assault convictions were elevated to felonies on the basis
that defendant knew that J was pregnant at the time of the
assaults. On appeal, defendant challenges the assault
convictions, raising two assignments of error. We reject
defendant's second assignment of error without written
discussion. In his first assignment of error, defendant
argues that the trial court erred in denying his motion for
judgment of acquittal, because the evidence was speculative
as to whether J was actually pregnant at the time of each
assault. For the reasons that follow, we agree. We therefore
reverse defendant's felony convictions on Counts 3, 4,
and 7; remand for entry of misdemeanor convictions on those
counts; and otherwise affirm.
reviewing the denial of a motion for judgment of acquittal,
we view the facts in the light most favorable to the state.
State v. Long, 286 Or.App. 334, 335, 399 P.3d 1063
(2017). Applying that standard, the relevant facts are as
and J began dating in the summer. J moved in with defendant
in mid-to-late July, and they discussed wanting J to become
pregnant. J became pregnant in the first half of August, as
confirmed by a home pregnancy test and an ultrasound on
August 18. Defendant knew about the pregnancy at that time.
August 28, defendant woke J by deploying a taser to her leg,
which caused her pain and a welt on her leg. J described ...