State v. Drew

• Decision Date: 12 February 2020
• Docket Number: A166170
• Citation: 460 P.3d 1032,302 Or.App. 232
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Patrick Michael John DREW, Defendant-Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 232

460 P.3d 1032

STATE of Oregon, Plaintiff-Respondent,

v.Patrick Michael John DREW, Defendant-Appellant.

A166170

Court of Appeals of Oregon.

Submitted August 23, 2019.

February 12, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J..

Defendant appeals a judgment of conviction for one count of second-degree assault, ORS 163.175, and one count of unlawful use of a weapon, ORS 166.220. In his first assignment of error, defendant contends that the trial court plainly erred by failing to merge the two guilty verdicts into a single conviction for assault in the second degree. The state concedes that the trial court plainly erred. As explained further below, we agree, accept that concession, and exercise our discretion to correct the error. Accordingly, we reverse and remand for resentencing.

In his second assignment of error, defendant, who was sentenced to 70 months’ incarceration for second-degree assault pursuant to ORS 137.700(2)(a)(G), contends the trial court erred in determining that the victim of the assault suffered a "significant physical injury" under ORS 137.712 (2)(b)(B), making defendant ineligible for a lesser sentence under ORS 137.712(1).¹ For the reasons expressed below, we conclude that the victim suffered a significant physical injury under ORS 137.712(2)(b)(B) as a result of the assault.² Therefore, the trial court did not err when it imposed the 70-month "mandatory minimum" sentence under ORS 137.700(2)(a)(G).

I. STANDARD OF REVIEW

"We review a claim that the sentencing court failed to comply with the requirements of law in imposing a sentence for errors of law." State v. Kinsey , 293 Or. App. 208, 209, 426 P.3d 674 (2018) (internal quotation marks omitted). "We state the facts in the light most favorable to the state." Id. (internal quotation marks omitted).

II. BACKGROUND

Defendant, defendant’s intimate partner, and the victim lived together in a house in Woodburn, Oregon. The victim and defendant’s intimate partner were involved in a physical altercation, following which the victim went to her bedroom, shut the door, and locked it. Defendant then "kicked in" the victim’s door and entered the victim’s room, wielding what looked to the victim like a "broken mop stick" or a broken broom stick, although it may have been a metal pipe. Defendant, who, according to the victim, was holding the stick "like * * * a major league batter," then raised the stick above his head and, while holding it with two hands, brought it down directly onto the victim’s head. After striking the victim, defendant screamed, "Get the fuck out."

The force of the blow almost knocked the victim to the ground and dazed her. It also opened up a wound on the victim’s head that was four to six inches in length, running from the front of the victim’s forehead onto her scalp. When defendant struck the victim, she felt "something coming down her face," noticed that "her hands were full of blood," and then she started "choking on" the blood because "[i]t was running down into [her] mouth." The victim also testified that the wound hurt "really bad" and was "throbbing."

The victim climbed out of the bedroom window and ran. Once outside, the victim was unable to control the bleeding. A witness at defendant’s trial, who saw the victim outside of the victim’s house, described seeing "blood all over [the victim’s] face" and "everywhere" else, meaning "all over the [victim’s] room and out towards the window and * * * where we were at."

Subsequently, police officers and an ambulance arrived on the scene. One officer took a picture of the victim’s injury, and described the wound caused by the blow as "pretty big" and as "bleeding all over [the victim’s] face." He also noted that "blood had dripped in the house itself."

Emergency medical technicians were ultimately able to control the bleeding and the victim was taken to the hospital. At the hospital the victim’s wound was cleaned and it required five staples to close. Even after being closed with staples, the wound was four to six inches long and approximately one-half inch wide. The staples were removed "almost two weeks later."

Defendant was indicted for, among other offenses, second-degree assault and unlawful use of a weapon. The second-degree assault charge alleged that defendant "unlawfully and knowingly cause[d] physical injury to [the victim] by means of a dangerous weapon, to wit: a hard object." The unlawful use of a weapon charge alleged that defendant "did unlawfully attempt to use unlawfully against [the victim], a hard object, a dangerous weapon."

After a trial, a jury found defendant guilty of one count of second-degree assault and one count of unlawful use of a weapon.

A conviction for second-degree assault requires a "mandatory minimum" sentence of 70 months’ imprisonment pursuant to ORS 137.700(2)(a)(G), unless a defendant is eligible for a downward departure sentence under ORS 137.712(1). At his sentencing hearing, defendant argued that, although a conviction of second-degree assault generally requires a minimum sentence of 70 months’ imprisonment pursuant to ORS 137.700(2)(a)(G), he was eligible for a downward departure sentence under ORS 137.712. That statute provides, in pertinent part:

"(1)(a) Notwithstanding ORS 137.700 * * *, when a person is convicted of * * * assault in the second degree as defined in ORS 163.175(1)(b), * * * the court may impose a sentence according to the rules of the Oregon Criminal Justice Commission that is less than the minimum sentence that otherwise may be required by ORS 137.700 * * * if the court, on the record at sentencing, makes the findings set forth in subsection (2) of this section and finds that a substantial and compelling reason under the rules of the Oregon Criminal Justice Commission justifies the lesser sentence. * * *

"* * * * * "(2) A conviction is subject to subsection (1) of this section only if the sentencing court finds on the record by a preponderance of the evidence:

"* * * * *

"(b) If the conviction is for assault in the second degree:

"(A) That the victim was not physically injured by means of a deadly weapon;

"(B) That the victim did not suffer a significant physical injury; and

"(C) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section."

ORS 137.712.

For its part, the state did not argue that the victim was physically injured by means of a deadly weapon, ORS 137.712(2)(b)(A), or that defendant had prior convictions that would disqualify him from a downward departure sentence, ORS 137.712(2)(b)(C). Thus, the only issue at the sentencing hearing with respect to defendant’s eligibility for a downward departure sentence under ORS 137.712(1) —apart from whether a substantial and compelling reason under the rules of the Oregon Criminal Justice Commission justified a downward departure—was whether defendant was ineligible for a downward departure because the victim suffered a "significant physical injury," ORS 137.712(2)(b)(B). A "significant physical injury" is defined in ORS 137.712 (6)(c) as an injury that:

"(A) Creates a risk of death that is not a remote risk;

"(B) Causes a serious and temporary disfigurement;

"(C) Causes a protracted disfigurement; or

"(D) Causes a prolonged impairment of health or the function of any bodily organ."

Specifically, the state argued that defendant was ineligible for a downward departure under ORS 137.712, because, under ORS 137.712(6)(c)(A), "the victim being hit over the head full force with two arms swinging directly down with the weapon * * * created a risk of death that was not a remote risk," and because, under ORS 137.712(6)(c)(B), "the blow to the head * * * caused a serious and temporary disfigurement for the splitting open of the scalp to *** the skull and the stitches that followed."

In response, defendant argued that, although every blow to the head "creates some concerns," it did not cause a risk of death that was not a remote risk, because there was no evidence to show that "the victim * * * had received a concussion or that she lost consciousness." In addition, defendant argued that the victim’s injury did not cause a serious and temporary disfigurement, because there was no evidence of "what [the victim’s] condition was at the time of trial; or indeed, even a week after this injury occurred" so it "might have been that this cut healed very rapidly on its own. * * * What we know is that she received a cut that required five staples * * * and that, * * * when she was in court, she no longer had the staples in her forehead."

The trial court determined that there "was a significant injury and that there was a risk of death" that was not a remote risk. The trial court reasoned:

"The force that was described to * * * hit the victim on the head, right on the head where the brain is, was significant. It is fortunate that there was no permanent brain injury, but it certainly was—the potential was certainly there. The risk was there.

"I * * * am concerned about a lack of remorse as well, but * * * before I can even look at that, I would have to look at whether this was a case involving significant injury with a weapon."

The trial court continued its significant physical injury analysis, rejecting defendant’s argument that the victim’s injuries did not result in a "serious and temporary disfigurement" because there was no evidence of "what [the victim’s] condition was * ** even a week after this injury" so it "might have been that this cut healed very rapidly on its own." The trial court reasoned that

"the fact that the victim received, I believe, four or six staples in her head is

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