State v. Bivins

• Decision Date: 21 January 2004
• Citation: 191 Or. App. 460,83 P.3d 379
• Parties: STATE of Oregon, Respondent, v. Micah Dale BIVINS, Appellant.
• Court: Oregon Court of Appeals

83 P.3d 379

191 Or. App. 460

STATE of Oregon, Respondent, v. Micah Dale BIVINS, Appellant.

CF00-0191; A112238.

Court of Appeals of Oregon.

Argued and Submitted October 31, 2002.

Decided January 21, 2004.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

LINDER, J.

Following a jury trial, defendant was convicted of felony assault in the fourth degree, ORS 163.160, and harassment, ORS 166.065. The assault was elevated from a misdemeanor to a felony offense based on the state's allegation and the jury's finding that a child witnessed the assault. See ORS 163.160(3)(c). On appeal, defendant challenges only his assault conviction, arguing that the evidence was legally insufficient to prove the aggravating element and that, as a result, defendant is guilty only of misdemeanor assault. We agree. We therefore reverse in part, remand for entry of a judgment of conviction for misdemeanor assault in the fourth degree and for resentencing, and otherwise affirm.

On appeal, we view the evidence in the light most favorable to the state to determine whether any rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential elements of the crime beyond a reasonable doubt. State v. Evans, 161 Or.App. 86, 89, 983 P.2d 1055 (1999). We therefore state the facts in that light, although we note some of the disputes in the evidence because they provide added context for aspects of our discussion.

The charges against defendant arose out of a domestic fight between defendant and Payne, who is his ex-girlfriend and the mother of his two daughters. The children, ages 5 and 3 at the time, were home during the fight. Payne and defendant had separated about a month before, and defendant was at Payne's home to watch the children. According to Payne's report to the investigating police officers, the fight began over an argument about the use of the phone. In the course of the argument, defendant threw the phone against the wall, breaking it. At that point, according to what Payne told the officers, the confrontation escalated to

"pushing and shoving. [Payne] pushed [defendant] back. This occurred in the bedroom to the living room area. She got the phone and took it outside to use the phone. He unplugged the phone from inside. She had to force her way back into the residence.

"They argued some more, during which time he hit her in the face. She believed it was with an open hand, but she couldn't recall at that time. He knocked her to the floor a couple of times, and she fought back, left the residence, went to the neighbor's house where she had them call 911."

When the officers responded to the report of the fight, they observed that Payne had a small cut on her lip that appeared to be a fresh injury and that one of her cheeks was a "little red." Defendant admitted to the officers that he slapped Payne with an open hand and pushed her down, but he claimed that he did so only after Payne attacked him physically. Payne told the officers that defendant was the initial aggressor, but she admitted to reacting by hitting and shoving him.

The officers arrested defendant. In charging him with felony assault, the state alleged that the assaultive conduct was witnessed by the older of the two children. Specifically, the indictment pleaded:

"The defendant, on or about 03/16/00, in the County of Umatilla and State of Oregon, did unlawfully and intentionally cause physical injury to Noel Payne by striking her in the face, and the defendant's conduct was witnessed by [C], the minor child of the defendant and Noel Payne."

Consequently, the burden fell on the state to prove that C, the older of the two children, witnessed defendant striking Payne in the face. See State v. Reynolds, 183 Or.App. 245, 251, 51 P.3d 684,

rev. den., 335 Or. 90, 58 P.3d 821 (2002) (factors that aggravate fourth-degree assault to a felony are material elements of the offense).

At trial, the state did not call C to testify about what she had witnessed. Nor did the state establish that the officers questioned the children as part of their investigation or that the officers asked Payne or defendant any questions about the children's whereabouts during the fight or other facts that might bear on what either child saw, heard, or understood to be happening. To establish where the children were when the assault occurred, the state relied entirely on Payne's testimony, specifically the following answers to the prosecutor's questioning:

"Q Did you remember telling the neighbor that the defendant hit you and you needed the police?

"A Yes.

"Q The children were home at the time?

"A Yes.

"* * * * *

"Q Where were the kids?

"A I believe the majority of the time they were in their bedroom when we started—

"Q Where were you—

"A When we started arguing I sent them to their room.

"Q Okay, you said the majority of the time, where were they the rest of the time?

"A Kitchen, bathroom, tried to go outside and play. I told them to stay in the house, go to the bedroom.

"Q So they were moving around the house at the same time you were moving around the house?

"A At the beginning of our argument they tried to go outside to play, and I told them to go to their room because I couldn't keep an eye on them while I was having an argument with [defendant]."

The state also established, through Payne's testimony and that of the investigating officers, that Payne's house was very small, had thin walls, and that noises in one area of the house could be heard in the other areas of the house. As Payne described it, "you can hear someone sneeze across the house." According to one of the investigating officers, activities in other parts of the house could "most definitely" be heard elsewhere in the house. That officer also explained that, because of the house's small size, "[u]nless you're in another room with a closed door, * * * you'd still be able to see what's going on [in another area of the house] unless you had this closed door in front of you."

Payne, however, was not asked for further details that might establish what the children likely heard or saw. By the time of trial, Payne was a less-than-fully-cooperative witness for the state. Payne had recanted her statements to the officers and denied that defendant had slapped her during the fight. She instead claimed that the door was jammed when she tried to leave to call 9-1-1 and, as she forced it open, it hit her in the lip. Payne also testified that she sent the children to their bedroom so that they would not "perceive" the fight. Payne was never asked about the noise level of the fight more generally, the sound made when defendant hit her in particular, whether the children left their bedroom door open, whether she knew what the children were doing while in their bedroom, or similar facts.

At the end of the state's case-in-chief, defendant moved for a judgment of acquittal, arguing that the evidence was insufficient to establish that the assault was witnessed by either of the children. The trial court denied the motion. On appeal, defendant renews the arguments that he made to the trial court, urging that a jury could reasonably infer from the evidence that the children could have heard their parents arguing but that there was no basis for a reasonable inference that either child perceived the assault specifically. The state counters that, viewed in the light most favorable to the state, a jury reasonably could infer "that the children actually saw defendant's assault, and it is virtually certain that they heard the sound of defendant's hand striking their mother's face wherever they were."

We begin by examining the elements of assault in the fourth degree and particularly the element that enhanced the assault to a felony in this case. Under ORS 163.160, a person commits assault in the fourth degree by intentionally, knowingly, or recklessly causing physical injury to another.¹ Ordinarily, that crime is a misdemeanor. ORS 162.160(2). Pursuant to subsection (3)(c), however, the crime is elevated to a felony if, as the state sought to prove in this case, the assault is witnessed by the defendant's or the victim's minor child.² The statute defines "witnessed" as "seen or directly perceived in any other manner by the child." ORS 163.160(4). The words "directly" and "perceived" are not statutorily defined, but both are words of common usage. In this context, "perceived" connotes recognition or consciousness; "directly" means first-hand or personally.³ So, for fourth-degree assault to be elevated to a felony based on proof that a child "witnessed" the assault, the state must prove that the child personally saw or through some other first-hand sense or sensation was conscious of and recognized the assaultive conduct as it occurred. In establishing that element, the state may rely on circumstantial evidence and reasonable inferences flowing from that evidence. See Delgado v. Souders, 334 Or. 122, 135, 46 P.3d 729 (2002)

; State v. Beason, 170 Or.App. 414, 425, 12 P.3d 560 (2000),

rev. den., 331 Or. 692, 26 P.3d 149 (2001). An inferred fact must be one that the jury is convinced follows beyond a reasonable doubt from the underlying facts. State v. Lopez-Medina, 143 Or.App. 195, 200, 923 P.2d 1240 (1996). But the requirement that the jury be convinced beyond a reasonable doubt does not mean that a particular inference must inevitably follow from the established facts. Beason, 170 Or.App. at 423-24,

12 P.3d 560. Rather, the established facts may support multiple reasonable inferences and, if they do, which inference to...