- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 10-24-2012
- Case #: A144711
- Judge(s)/Court Below: Brewer, J. for the Court; Schuman, P.J.; and Nakamoto, J.
- Full Text Opinion
Defendant appealed convictions of one count of second degree assault and two counts of fourth degree assault. Defendant pulled victim off bed, drug her down a hallway, and repeatedly beat her head against the hardwood floor, causing injuries to her legs, hip, and head. Defendant filed a motion for acquittal and a motion for a new trial on the grounds that evidence was insufficient to establish that his conduct caused "physical injury" to victim, as required for 4th degree assault; the trial court denied Defendant's motions. Defendant also filed a motion for acquittal, arguing that the State had failed to establish that the injuries were inflicted by means of a "dangerous weapon," as required for 2nd degree assault. The trial court denied this motion. The trial court also declined to merge his three convictions into one. The Court of Appeals held that injuries to her ribs and legs which made it more difficult to engage in normal activities constituted "physical injury" under ORS 161.015(7). The Court also held that because the hardwood floor was capable of causing severe physical injury where the defendant repeatedly struck her head against it, constituted a "dangerous weapon" as defined by ORS 161.015(1). Finally, the Court held that the trial court erred in failing to merge the 3 convictions. There was no evidence of a "sufficient pause" in conduct as required for separability of offenses that arose from the same conduct or criminal episode under ORS 161.067. Reversed and remanded with instructions to merge, otherwise affirmed.