State v. Hendricks
| Citation | 273 Or.App. 1,359 P.3d 294 |
| Decision Date | 19 August 2015 |
| Docket Number | 201100932,A148546. |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. David Wayne HENDRICKS, Defendant–Appellant. |
| Court | Court of Appeals of Oregon |
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before NAKAMOTO, Presiding Judge, and HASELTON, Chief Judge, and EGAN, Judge.*
Defendant appeals from a judgment of conviction for three counts of fourth-degree assault (Counts 1, 4, and 5) and one count each of strangulation (Count 3), unlawful use of a weapon (Count 6), coercion (Count 7), and menacing (Count 8), all of which constituted domestic violence. Defendant asserts, inter alia, that the trial court erred: (1) in denying his motion for a judgment of acquittal (MJOA) as to Count 4, on the ground that the state failed to adduce evidence of the “physical injury” element of fourth-degree assault; (2) in the event that the conviction on Count 4 is affirmed, by failing to merge Count 3 and Count 4 into a single fourth-degree assault conviction; and (3) in denying his MJOA as to Count 7, for coercion, because there was insufficient evidence that defendant caused the victim to alter her course of conduct. With respect to the first assignment, we conclude that there was sufficient evidence of physical injury, and, therefore, that the trial court did not err in denying the MJOA as to Count 4. We further conclude, with respect to merger, that the trial court correctly entered separate convictions for Counts 3 and 4. Finally, we conclude that the trial court erred in denying the MJOA on the coercion charge. Accordingly, we reverse defendant's conviction as to coercion (Count 7), and remand for resentencing, see ORS 138.222(5)(b), but otherwise affirm.1
In reviewing a trial court's denial of an MJOA, we view the evidence adduced at trial in the light most favorable to the state. 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) ; State v. Schneider, 229 Or.App. 199, 201, 211 P.3d 306 (2009). Consistently with that standard, the facts material to our review are as follows.
In January 2011, defendant and the victim, E, were in a relationship and living together in a house owned by defendant. From early January 15 through the morning of January 17, defendant engaged in an alcohol-fueled course of bizarre and threatening conduct towards E. At various points, defendant would chant phrases including “Die bitch” and “Die cunt” for prolonged periods; shout other profanities, threats, and orders at E; and blast music so loud that she could not sleep or study. E had moved into a separate bedroom, just down the hall from the bedroom that she had previously shared with defendant.
Under those circumstances, defendant attacked E several times; specifically, as pertinent to our review, during the very early morning on January 17, defendant was chanting and yelling from his bedroom. E, unable to sleep, had gone to the front room to try to study. After the chanting grew louder, E went to the doorway of defendant's bedroom and asked him to stop. Defendant, who was lying down on the bed, jumped up and lunged at E with a pillow. When he reached her, defendant covered E's face with the pillow for about a second, momentarily cutting off her breathing. E pushed defendant and broke away. Defendant, still wielding the pillow, came at E again. This time he forcefully covered her face with the pillow for about five seconds, simultaneously pinning her to the wall. During that five-second period, E could not breathe. “In survival mode” and fearing “he was going to kill [her],” E struck defendant and “got him away from [her] face.”
E then attempted to return to the living area. She wanted to retrieve her study materials and then retreat to the bedroom. On her way to the living area, E told defendant, who was still in or near the hallway, that she wanted her books. As she was attempting to pass, defendant grabbed her and began pummeling her, striking her head “over and over and over.”
E, apparently able to extricate herself from defendant's grasp, made her way to the living area. She grabbed her books, and headed back down the hallway towards her bedroom. At that point, defendant intercepted her again. E tried to stab defendant with a pencil but missed, accidently stabbing herself. He began to push her towards the bedroom, cussing at her and ordering her to get into the bedroom. According to E, as defendant was “shoving” her into the bedroom: “He was on my back, telling me to get into my—get into my bedroom where I belong.”
E eventually called 9–1–1. Defendant, who was arrested later that morning, was charged with multiple offenses. As relevant here, based on the allegations relating to his covering E's face with a pillow, the state charged him with both strangulation, ORS 163.187 (Count 3), and fourth-degree assault, ORS 163.160 (Count 4).2 Defendant was also charged with a single count of coercion, ORS 163.275 (Count 7); the indictment did not specify the predicate conduct for that charge.3
At trial, once the state had presented its case-in-chief, defendant moved for a judgment of acquittal on the assault and coercion counts. With respect to the operative fourth-degree assault charge, defendant asserted that there was no proof that E had suffered “physical injury,” within the meaning of ORS 163.160, as a result of the pillow attack. The state countered that any “impairment of the ability of the body to function in a normal manner for any amount of time” was sufficient—and that not being able to breathe “for any amount of time” constituted such impairment.
As to coercion, defendant argued that there was “no act that a jury [could] settle on * * * that [the victim] lawfully had a right to do but she abstained from doing.” Defendant further argued that his conduct (described above) in ordering and pushing E into her bedroom did not constitute coercion because she was going there on her own volition anyway.
The trial court denied the MJOA as to both counts. It agreed with the state that the “physical injury” component of fourth-degree assault has no durational requirement and that the victim's testimony provided sufficient evidence of impairment. As to coercion, the trial court reasoned that the evidence of defendant's actions and words during the bedroom incident was sufficient to show that “he was compelling her to go someplace that she had a right not to go.”
Near the end of the trial, the parties submitted their proposed jury instructions. The state requested Uniform Criminal Jury Instruction (UCrJI) 1433, relevant to coercion that occurs when a defendant causes another “to abstain from engaging in conduct ” that he or she has the right to engage in. ORS 163.275(1) (emphasis added). We note—because it is highly significant to our review of the denial of the MJOA on the coercion count—that the state did not request that the jury be instructed under UCrJI 1432, which relates to the species of coercion that occurs when a defendant “compels or induces another person to engage in conduct from which the other person has a legal right to abstain.” ORS 163.275(1) (emphasis added). Neither party excepted to the jury instructions. Accordingly, the jury was instructed as follows:
(Emphasis added.)
The jury found defendant guilty of all charges except one count of fourth-degree assault (Count 2).4 At sentencing, the trial court denied defendant's request that the guilty verdicts on Count 3 (strangulation) and Count 4 (fourth-degree assault) be merged into a single conviction. The trial court acknowledged that Counts 3 and 4 were “based on the exact same conduct,” but explained that they “clearly don't merge” because “each statutory provision requires proof * * * of elements that the other doesn't.”
As noted, on appeal, defendant assigns error to the trial court's denial of his MJOAs as to one count of fourth-degree assault and the single count of coercion, as well as its entry of separate convictions for strangulation and fourth-degree assault based on the same predicate conduct.
We begin with defendant's challenge to the sufficiency of the state's proof of fourth-degree assault, which we review for whether, after viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Cunningham, 320 Or. at 63, 880 P.2d 431.
Defendant renews his argument that “[i]nterfering with a person's breathing by blocking the person's nose and mouth for one to five seconds does not, without more, constitute physical injury.” Relying on case law—which, according to defendant, stands for the proposition that “minor impairment of a body part for a short amount of time is not sufficient impairment”—defendant equates “momentarily” impeding breathing with an inconspicuous, quick-healing “slight scrape or cut” and “blows and kicks that did not result in bruises or swelling.”
The state defends the trial court's approach, emphasizing that there is no durational requirement for the “impairment of physical condition”...
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