and submitted January 7, 2019
Multnomah County Circuit Court 16CR26193 Eric J. Bergstrom,
B. Crowther, 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
P. Robertson, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
appeals a judgment of conviction for several offenses,
including fourth-degree assault constituting domestic
violence, ORS 163.160(3), and first-degree burglary
constituting domestic violence, ORS 164.225. Defendant
contends that the trial court erred in refusing to provide a
special instruction defining "substantial pain" for
the purpose of assault. Held: Defendant was entitled
to a jury instruction that "feting" pain is not
substantial. The failure to give such an instruction may have
affected the verdict as to the assault conviction, as well as
the burglary conviction that required the state to show that
defendant acted with the intent to commit the assault.
Or.App. 813] Defendant appeals a judgment of conviction for
several offenses, including fourth-degree assault
constituting domestic violence, ORS 163.160(3), and
first-degree burglary constituting domestic violence, ORS
164.225. In his first of three assignments of error,
defendant contends that the trial court erred in refusing to
provide a special jury instruction defining "substantial
pain" in relation to the assault charge. Next, he
disputes the court's denial of his motion to exclude
evidence. Finally, he assigns error to the court's
instruction that the jury could reach a nonunanimous verdict.
As to the first issue, we agree that defendant was entitled
to a jury instruction that "fleeting" pain is not
substantial, and we conclude that the failure to give the
instruction was not harmless. We reject defendant's other
assignments of error without discussion. As we will explain,
we reverse and remand as to assault and burglary and remand
for resentencing; otherwise, we affirm.
reviewing the trial court's refusal to give a requested
instruction, we view the record in the light most favorable
to establishment of the facts necessary to require that
instruction." State v. Egeland, 260 Or.App.
741, 742, 320 P.3d 657 (2014) (citing State v.
Black, 208 Or.App. 719, 721, 145 P.3d 367 (2006)). We
recount the facts in light of that standard.
course of a domestic dispute, defendant grabbed the victim,
shook her, and struck her in the head with his hand. During
the dispute, a screwdriver from defendant's pocket
pressed into the victim's abdomen. Several people
witnessed the attack, including the victim's six-year-old
child. The victim obtained a restraining order against
defendant the day after the incident, but she terminated it
two weeks later.
Or.App. 814] Defendant was charged with nine offenses,
including assault, burglary, and strangulation. At trial, the
state called two witnesses who saw defendant attack the
victim. Both recalled him "choking" and hitting
her. One claimed to have observed defendant
"punching" the victim in the head, but the other
said that she "couldn't really tell" whether he
used an "open hand" or a "[c]losed" fist.
One witness said that defendant "push[ed]" a
screwdriver into the victim's side. Neither witness
observed the victim crying, and the victim did not appear to
be holding her head or throat as if either hurt.
police officers testified. The responding officer recalled
talking to the victim at the scene of the incident. According
to that officer, the victim reported defendant having
"placed his hands around her neck" for "about
five to ten seconds" and having "slapped her once
in the face[.]" An investigating officer recalled
meeting with the victim five days later. At that time, the
victim said that her throat had been sore. She rated her pain
on a scale of one-to-ten, indicating that it was a
"two" on the night of the attack and a
"six" the next day. The victim said that her pain
persisted for two days and that her neck "was still
hurting," but not as much as before.
witness stand, the victim acknowledged that she and defendant
had argued, but she generally disagreed with or denied the
state's characterizations of defendant's aggression,
her fear, and her injuries. The state asked the victim
whether she had told police that defendant had "placed
both of his hands around [her] neck[, ]" whether she
said that defendant "slapped [her] on the left side of
[her] face[, ]" and whether she remembered saying that
"defendant grabbed a screwdriver, was jabbing it into
[her] left side near [her] stomach which later caused a
bruise[.]" The victim replied that defendant shook her
rather than strangled her and that he may have grabbed her by
her shoulders instead of the neck. The victim said that she
"never felt any strike marks" and did not believe
that, amidst the commotion, she had been punched. The victim
said that defendant had not pushed the screwdriver into her
side but, rather, the screwdriver fell out of defendant's
pocket and "poked" her during a
"scuffle." The victim confirmed that she had [297
Or.App. 815] rated her neck pain on a ten-point scale, but
then claimed that, in actuality, her neck "was not sore
at all," and she was merely conveying to officers that
her neck had "tensed up."
state introduced evidence to impeach the victim's
testimony. That included photographs depicting bruises and
red marks on the victim's neck, face, and abdomen, as
well as call records and text messages between the victim and
defendant. The state also presented the victim's petition
for a restraining order, from which it read into the ...