State v. Glazier

• Decision Date: 24 October 2012
• Docket Number: DV0920661,A144711.
• Citation: 253 Or.App. 109,288 P.3d 1007
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Ralph Emmitte GLAZIER, Defendant–Appellant.
• Court: Oregon Court of Appeals

253 Or.App. 109

288 P.3d 1007

STATE of Oregon, Plaintiff–Respondent,

v.Ralph Emmitte GLAZIER, Defendant–Appellant.

DV0920661; A144711.

Court of Appeals of Oregon.

Argued and Submitted Oct. 20, 2011.

Decided Oct. 24, 2012.

Joe Metcalfe argued the cause for appellant. With him on the brief were Sarah Peterson and Metcalfe & Peterson LLC.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and BREWER, Judge, and NAKAMOTO, Judge.^*

BREWER, J.

Defendant was convicted of one count of assault in the second degree and two counts of assault in the fourth degree, arising out of an altercation between defendant and the victim, his wife. On appeal, defendant assigns error to the trial court's denial of his motion for a judgment of acquittal and motion for a new trial, contending that the evidence was insufficient to establish “physical injury,” as required for a conviction of fourth-degree assault, and that the state had failed to establish that defendant inflicted injury by means of a “dangerous weapon,” as required for a conviction of second-degree assault. Defendant also contends that the guilty verdicts should merge into a single assault conviction. We conclude that the trial court erred in declining to merge the guilty verdicts and otherwise affirm.

In reviewing the denial of defendant's motion for a judgment of acquittal, we determine whether the record contains evidence from which a rational trier of fact, drawing all reasonable inferences in the light most favorable to the state, could find that all of the elements of the charged offenses were proved beyond a reasonable doubt. State v. Simons, 214 Or.App. 675, 167 P.3d 476 (2007), rev. den.,344 Or. 43, 178 P.3d 247 (2008). On the morning of May 29, 2009, defendant pulled the victim off her bed by the ankle, causing her to hit her head and left hip as she landed on the hardwood floor. Defendant then dragged her into the hallway, hitting her left hip on the doorjamb and her right hip on the wall. He then dragged her by her arm into an area between the dining and living rooms and struck her head against the hardwood floor four or five times. Defendant then kicked the victim in the torso.

One of the officers who investigated the incident noted that, at the scene, the victim described pain on the right side of her head, although the officer did not observe immediate bruising on the victim's head. The victim testified, however, that as a result of having her head hit against the floor, she had “quite a knot” on the right side of her scalp and that her head was very sore. The investigating officer noted red marks and bruising on the victim's sides. The victim also testified that her neck and shoulders were sore after the incident and that she could not turn her head for several weeks. The victim's injuries did not prevent her from packing her car on the night of the incident or from moving out of the house the next day. The victim did not immediately seek medical attention for her injuries; she did, however, eventually go to the doctor for examination and treatment.

Defendant was charged with multiple offenses. A jury ultimately convicted him of second-degree assault by means of a dangerous weapon (Count 1) based on the head injuries that the victim sustained, and two counts of fourth-degree assault, based on the injuries to the victim's ribs (Count 5) and legs (Count 6). At sentencing, the trial court determined that, although defendant's conduct had caused distinct injuries to separate parts of the victim's body, the acts that caused those injuries were part of the same criminal episode and the same incident. For that reason, the court imposed concurrent sentences on the three assault convictions; however, the court declined to merge the guilty verdicts on those charges into a single conviction. Defendant appeals from the ensuing judgment of conviction.

In his first assignment of error, defendant contends that the trial court erred in denying his motion for a judgment of acquittal on the fourth-degree assault convictions on the ground that the evidence was insufficient to establish that his conduct caused physical injury to the victim.¹ A person commits the crime of assault in the fourth degree when the person “intentionally, knowingly or recklessly causes physical injury to another.” ORS 163.160(1)(a). “Physical injury” is defined as “impairment of physical condition or substantial pain.” ORS 161.015(7). The state does not rely on a “substantial pain” theory in this case. Thus, we focus on whether there was evidence that the victim suffered “impairment of physical condition.”

Impairment of physical condition means “harm to the body that results in a reduction in one's ability to use the body or a bodily organ for less than a protracted period of time.” State v. Higgins, 165 Or.App. 442, 446–47, 998 P.2d 222 (2000). Defendant notes that we have held that a heavy scrape or gash that breaks the skin qualifies as impairment of physical condition. See, e.g., State v. Jones, 229 Or.App. 734, 738–39, 212 P.3d 1292,rev. den.,347 Or. 446, 223 P.3d 1054 (2009) (heavy scrape was significant and was capable of disrupting the ordinary function of the skin); State v. Hart, 222 Or.App. 285, 291, 193 P.3d 42 (2008) (one-half inch gash on back of victim's head was legally sufficient evidence of “impairment of physical condition”). By contrast, defendant asserts that a bruise, however painful, does not impair a physical condition if it has no impact on the victim's use of his or her body. He relies on our decision in Higgins, 165 Or.App. at 444, 998 P.2d 222, where we held that scrapes on the victim's neck and arm that were neither painful nor bleeding were insufficient to establish impairment of physical condition because the victim suffered no diminished ability to use his neck and arm for any period of time. Defendant asserts that there was no evidence that the bruising to the victim's ribs and legs impaired her use of those body parts or any other body part and, accordingly, the trial court erred in denying his motion for a judgment of acquittal on the fourth-degree assault charges. We disagree.

In Higgins, we reaffirmed our conclusion in State v. Cetto, 66 Or.App. 337, 674 P.2d 66,rev. den.,296 Or. 712, 678 P.2d 740 (1984), that, for example, a “swollen lip impairs the ordinary function of a body part, the mouth.” 165 Or.App. at 448, 998 P.2d 222. Thus, we held, our statement that “impairment of physical condition means harm to the body that results in a reduction in one's ability to use the body or a bodily organ,” id. at 446–47, 998 P.2d 222, should be understood to include not only impairment of voluntary use of a body part, but also of the ordinary function of a body part. Here, the victim testified that the pain arising from her injuries made it more difficult for her to engage in normal activities such as walking up and down stairs and lifting small objects. That evidence was sufficient to support the inference that the posited injuries caused impairment for purposes of establishing physical injury on the fourth-degree assault charges.

In his third assignment of error, defendant contends that the trial court erred in denying his motion for a judgment of acquittal on the second-degree assault charge, which was based on defendant's acts of striking the victim's head against the hardwood floor several times. A person commits the offense of assault in the second degree if the person “[i]ntentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon[.]” ORS 163.175. “Dangerous weapon” is defined in ORS 161.015(1) as

“any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.”

Defendant acknowledges that a hardwood floor can be a dangerous weapon, and we agree. A dangerous weapon includes any “material or substance” that is “readily capable of causing death or serious injury” in the circumstances of its use. In State v. Reed, 101 Or.App. 277, 279–80, 790 P.2d 551,rev. den.,310 Or. 195, 795 P.2d 554 (1990), for example, we held that a sidewalk was a dangerous weapon where the defendant had repeatedly struck the victim's head against it. Defendant contends, however, that the evidence here was insufficient to prove that he used the floor as a dangerous weapon because there was no evidence that he hit the victim's head hard enough against the floor to cause her a serious physical injury. We reject that argument. The test for determining whether an instrumentality was used as a dangerous weapon is not what injury resulted, but what injury could have resulted under the circumstances. State v. Wier, 22 Or.App. 549, 551, 540 P.2d 394 (1975). Here, viewed in the light most favorable to the state, the evidence was sufficient to permit a trier of fact to determine that the floor was readily capable of causing serious physical injury to the victim in the circumstance where defendant repeatedly struck her head against it.

Defendant next contends that the evidence was insufficient to establish that he caused any physical injury at all by hitting the victim's head on the floor. Once again, we disagree. There was evidence from which the jury could find that, as a result of the charged conduct, the victim was unable to turn her neck for several weeks. Although defendant asserts that the victim's neck injury could have been caused when she fell to the floor after defendant pulled her off the bed, that is only one inference that could be drawn from the evidence. The jury also reasonably could have found that that physical injury resulted from the charged conduct.²

In his fifth assignment of error, defendant assents that the trial...