- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 10-22-2014
- Case #: A152266
- Judge(s)/Court Below: Tookey, J. for the Court; Sercombe, P.J.; and Hadlock, J.
- Full Text Opinion
Defendant appealed a judgment of conviction for felony assault in the fourth degree, coercion, and two counts of harassment. He sought reversal of his conviction for assault in the fourth degree, assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant was charged with assault after victim had a seizure "a few days" after victim's son heard what sounded like a physical altercation between Defendant and victim. Victim told her son that Defendant had ripped some of her hair out, and pointed to clumps of hair on the floor. For a conviction of assault in the fourth degree, the state must show the victim suffered physical injury in the form of "impairment of physical condition or substantial pain." A gash or heavy scrape constitutes impairment of physical condition, while a scrape that a victim did not notice and that did not cause pain does not. In the instant case, the Court found no impairment of physical condition, as there was no broken skin or bleeding as a result of victim's hair being pulled out. Substantial pain refers to the degree and duration of pain suffered by the victim. The pain must be "ample" and not "fleeting." Courts have generally found for this to be met, there must be some kind of duration of time pain existed (ie. for an hour). In the instant case, the Court found there was no evidence to show the pain suffered by the victim was anything more than fleeting, as no evidence was presented as to a duration of time the victim suffered pain. Conviction on Count 1 for assault in the fourth degree reversed; remanded for resentencing; otherwise affirmed.