- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 08-19-2015
- Case #: A148546
- Judge(s)/Court Below: Haselton, C.J. for the Court; Nakamoto, P.J.; & Egan, J.
- Full Text Opinion
Defendant appeals from a judgment of conviction for three counts of fourth-degree assault and one count of strangulation, unlawful use of a weapon, coercion, and menacing. Among other assignments of error, Defendant asserts that the trial court erred in denying his motion for judgment of acquittal on the ground that the state failed to adduce evidence of the physical injury element. Defendant and victim E were living together; one night, Defendant went into an alcohol-fueled course of threatening conduct towards E. E went to Defendant’s bedroom and Defendant lunged at her with a pillow, smothering her for a brief period of 1-5 seconds. On appeal, the Court must determine whether Defendant smothering E for mere seconds was a legally sufficient impairment of a physical condition to support assault. The factors considered were the nature of the affected bodily function or organ, the degree of the effect, and its duration. The Court concluded that respiratory function is essential, the impairment to breathing was total, and if only for a brief time, was sufficient to cause the victim to fear for her survival. This made the smothering a “physical injury” by its physical impairment definition and sufficient to support assault. Conviction on Count 7 reversed; remanded for resentencing; otherwise affirmed.