State v. Colpo

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: POWERS, J.
• Citation: State v. Colpo, 305 Or App 690, 472 P.3d 277 (Or. App. 2020)
• Decision Date: 05 August 2020
• Docket Number: A164323
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Katherine Ann COLPO, Defendant-Appellant.

305 Or.App. 690

472 P.3d 277

STATE of Oregon, Plaintiff-Respondent,

v.Katherine Ann COLPO, Defendant-Appellant.

A164323

Court of Appeals of Oregon.

Argued and submitted October 18, 2018.

August 5, 2020

Erica Herb, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jamie Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Matthew Maile, Assistant Attorney General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

In this criminal case, defendant appeals from a judgment of conviction for criminal mistreatment in the first degree, ORS 163.205, and argues that the trial court erred in denying her motion for a judgment of acquittal (MJOA).¹ As charged, one element of first-degree criminal mistreatment is that defendant caused the victim "physical injury," which is defined as "impairment of physical condition or substantial pain." ORS 163.205(1)(b)(A) ; ORS 161.015(7). Defendant contends that there was insufficient evidence to permit a rational trier of fact to find that she caused "substantial pain" to her son, T, when she punched him in the stomach because the degree and duration of his pain was "fleeting and inconsequential." As explained below, we conclude that the trial court did not err in denying defendant's motion because there was sufficient evidence for a rational factfinder to conclude beyond a reasonable doubt that she caused the victim "substantial pain." Accordingly, we affirm.

We review the denial of an MJOA to determine whether, after viewing the facts and all reasonable inferences in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). We state the facts in accordance with that standard.

Defendant, her boyfriend, and son, T, were staying in a hotel in Oregon City. While the three were waiting for the hotel elevator, defendant punched T, who was six years old, in the stomach. As seen on the surveillance footage, the victim reacted by bending over and grabbing his stomach. A hotel employee saw the incident on surveillance footage and immediately reported it to her manager, who called the police.

Officer Ennis responded to the hotel, watched the surveillance video, and then went to defendant's room to further investigate. Defendant told Ennis that the victim was a "liar" that "had ruined her life * * * because of his lies" and that defendant was currently homeless and unemployed. Defendant also told Ennis that because the victim had made accusations of sexual abuse against defendant's roommate, they had to leave their home, and that she was "pissed" at the victim because he had "fucked up [her] life."

When Ennis asked defendant about what happened at the elevator, she maintained that nothing happened. After Ennis showed defendant the surveillance video on his phone, however, defendant said, "I didn't hit him very hard. I did not hurt him." Defendant became upset and told Ennis that the victim was "a liar," not credible, "that he overreacts, and that he is theatrical." She then referred Ennis to the victim and told him that the victim would say that he was not hit very hard and that defendant did not injure him.

Ennis approached the victim, who initially insisted that nothing had happened. After watching the surveillance video with Ennis, however, the victim said that after he had been hit "[i]t hurt a little bit, for a little while" and that he felt like he was going to throw up from being hit. The victim also told Ennis that he did not want his mom to go to jail and that he was not hit very hard. Although Ennis did not see any marks or bruising on the victim, he arrested defendant. Ultimately, defendant was charged with third-degree assault, first-degree criminal mistreatment, and harassment, and waived her right to a jury.

During the trial to the court, the victim testified that, when he got punched, it felt like a rock was thrown at him or a baseball bat. The victim further explained that it felt like a baseball was thrown at him that he did not catch. He rated his pain as a seven on a scale from one to 10, with 10 being the worst pain that he ever felt when he broke his arm falling off of a four-wheeler. On cross-examination, he changed that rating to a five. He said that his pain lasted for a minute and a half.

Defendant moved for an MJOA after the close of the state's case-in-chief, arguing that the state presented insufficient evidence to prove that the victim suffered physical injury because "there was no mark, there was low pain, and[,] if there was pain[,] it was only for a minute and a half." The court denied the motion, concluding that there was sufficient evidence to survive an MJOA and, ultimately, found defendant guilty on all three charges. The guilty verdicts on the third-degree assault and harassment charges merged into the first-degree mistreatment verdict.

On appeal, defendant renews her argument that the evidence was insufficient to prove that the victim suffered substantial pain. Under State v. Roberts , 293 Or. App. 340, 344-45, 427 P.3d 1130 (2018), substantial pain must be both of sufficient degree and duration. Defendant contends that, because the evidence of pain must reach both a degree and durational threshold and, in this case, the victim suffered pain for only 90 seconds, there is insufficient evidence that defendant caused substantial pain. As explained below, we conclude that, under our standard of review—that requires us to view the evidence in the light most favorable to the state—there was sufficient evidence for a rational finder of fact to conclude beyond a reasonable doubt that defendant caused the victim substantial pain, and, therefore, the trial court did not err in denying defendant's MJOA.

An element of both first-degree criminal mistreatment and third-degree assault, as charged in this case, is that the defendant caused "physical injury" or injuries to the victim. ORS 163.205(1)(b)(A) ; ORS 163.165(1)(h). The term "physical injury" is defined to mean "impairment of a physical condition or substantial pain." ORS 161.015(7). The state concedes that the evidence in this case is insufficient to prove impairment of a physical condition. Therefore, we must determine whether, based on the evidence introduced at trial, a rational factfinder could find beyond a reasonable doubt that defendant caused the victim substantial pain. That inquiry hinges on whether the victim subjectively experienced substantial pain. State v. Guzman , 276 Or. App. 208, 211, 366 P.3d 816 (2016) (so stating).

Defendant correctly observes that evidence establishing substantial pain must meet both a degree or intensity threshold as well as a durational threshold—both of which are measured subjectively from the victim's point of view. See Roberts , 293 Or. App. at 348, 427 P.3d 1130 ("[W]e have held that the jury can determine that a victim suffered substantial pain only if the evidence supports findings that the victim suffered considerable pain and * * * the duration of the pain was more than fleeting." (Ellipsis in original, internal quotation marks, citation, footnote, and emphasis omitted.)); State v. Long , 286 Or. App. 334, 340, 399 P.3d 1063 (2017) (explaining that the phrase "substantial pain" refers "both to the degree and the duration of pain subjectively experienced by a victim"). In terms of degree, intensity, or severity, "substantial pain" must be "considerable" or "ample" and cannot be "inconsequential." See Guzman , 276 Or. App. at 212, 366 P.3d 816 ; State v. Poole , 175 Or. App. 258, 261, 28 P.3d 643 (2001). And, with respect to duration, "substantial pain" cannot be "fleeting" and must be more than "momentary." See Guzman , 276 Or. App. at 212, 366 P.3d 816 ; State ex rel. Juv. Dept. v. Salmon , 83 Or. App. 238, 241, 730 P.2d 1285 (1986). As we explained in Roberts, the origin of the term "substantial pain" has its roots in the legislature's desire to define assault crimes to require the infliction of actual physical injury and to exclude batteries that do not have a harmful effect. 293 Or. App. at 348 n 1, ...