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State v. Haws

Court of Appeals of Oregon

June 5, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DAROLD JEFFREY HAWS, Defendant-Appellant.

          Argued and submitted January 7, 2019

          Multnomah County Circuit Court 16CR26193 Eric J. Bergstrom, Judge.

          Joshua 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 Services.

          Lauren 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.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         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. 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.

          DeVORE, J.

         [297 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.[1]

         "In 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.

         In the 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.

         [297 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.

         Two 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.

         On the 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."

         The 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 ...


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