State v. Drew

                                        232

Submitted August 23, 2019; convictions for second-degree assault and unlawful
 use of a weapon reversed and remanded for entry of judgment of conviction for
     second-degree assault, remanded for resentencing, otherwise affirmed
                              February 12, 2020


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                PATRICK MICHAEL JOHN DREW,
                      Defendant-Appellant.
                   Marion County Circuit Court
                      17CR27091; A166170
                                   

     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
second-degree assault. In his second assignment of error, defendant, who was
sentenced to 70 months’ incarceration for second-degree assault pursuant to
ORS 137.700, contends the trial court erred in determining that the victim of
the assault suffered a “significant physical injury” under ORS 137.712(2)(b)(A),
thereby making defendant ineligible for a lesser sentence under ORS 137.712(1).
Held: The trial court plainly erred in failing to merge the two guilty verdicts into
a single conviction for second-degree assault, and the Court of Appeals exercised
its discretion to correct the error. The trial court did not err when it denied defendant eligibility for a downward departure sentence because the victim suffered a
“significant physical injury” from the assault.
   Convictions for second-degree assault and unlawful use of a weapon reversed
and remanded for entry of judgment of conviction for second-degree assault;
remanded for resentencing; otherwise affirmed.



    Mary Mertens James, Judge.
   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.
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  TOOKEY, J.
    Convictions for second-degree assault and unlawful use
of a weapon reversed and remanded for entry of judgment
of conviction for second-degree assault; remanded for resentencing; otherwise affirmed.
  Aoyagi, J., concurring in part, dissenting in part.
234                                                          State v. Drew

           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, 

,

 (2018) (internal quotation marks omitted). “We

    1
      Although we are remanding for resentencing on defendant’s first assignment of error, we address defendant’s second assignment of error because it is
likely to arise on remand. See, e.g., State v. Warren, 

, 505 n 7,

, rev den, 

 (2018) (addressing aspects of assignments of
error that are likely to arise on remand despite reversing on different ground).
Furthermore, all citations to ORS 137.700 and ORS 137.712 are to the 2017
version of those statutes, the version that was in effect when defendant was
sentenced.
    2
      Defendant also filed a supplemental brief that assigned error to the trial
court’s instruction to the jury that it could return a nonunanimous verdict.
Defendant contends that the Sixth and Fourteenth Amendments to the United
States Constitution require unanimous jury verdicts. We reject that argument,
on the merits, without further discussion.
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state the facts in the light most favorable to the state.” 

(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.”
236                                                  State v. Drew

         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. …
      “…
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       “(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
238                                                  State v. Drew

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 also evidence that this was not just a
   gash that would heal up quickly. It was something that
   required a surgical intervention for it to—to be repaired.”
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         Accordingly, the trial court sentenced defendant
to the “mandatory minimum” 70 months’ incarceration
for the second-degree assault conviction pursuant to ORS
137.700(2)(a)(G). The trial court also imposed a concurrent
12-month sentence for defendant’s unlawful use of a weapon
conviction.3
                             III.   ANALYSIS
A.    Merger
         As noted above, on appeal, defendant contends
that the trial court plainly erred in failing to merge the
two guilty verdicts into a single conviction for assault in
the second degree. The state concedes that the trial court
should have merged the guilty verdicts into a single conviction for second-degree assault. We agree with and accept
the state’s concession. See State v. Ryder, 

, 

 (2009) (accepting the state’s concession
that the trial court plainly erred in entering two separate
convictions for second-degree assault and unlawful use of a
weapon, where “[b]oth of those charges arose out of defendant’s concurrent conduct against the same victim—that
is, defendant unlawfully used a knife, a dangerous weapon,
against that victim and, by doing so, did intentionally and
knowingly cause her physical injury”); cf. State v. Alvarez,

, 

 (2010), rev den, 

 (2011) (holding that first- and second-degree assault and
unlawful use of a weapon charges did not merge where the
unlawful use counts alleged that the defendant had committed the crimes by carrying or possessing a dangerous
weapon with the intent to use it unlawfully). Further, for
the reasons expressed in Ryder, we exercise our discretion
to correct the error. 

.
B.   Significant Physical Injury
         On appeal, defendant contends that the trial court
erred in determining that the victim of the assault suffered
a “significant physical injury” under ORS 137.712(2)(b)(B)
because, in defendant’s view, the evidence did not support
     3
       At the sentencing hearing, defendant did not argue that the guilty verdicts
for second-degree assault and unlawful use of a weapon should merge into a single conviction for second-degree assault.
240                                                              State v. Drew

the trial court’s determination that the victim suffered an
injury that created “a risk of death that is not a remote
risk,” ORS 137.712(6)(c)(A).4 As noted, defendant also contends that he met his burden to prove that the injury did not
cause “a serious and temporary disfigurement,” so we may
not affirm on that basis. ORS 137.712(6)(c)(B). The state, for
its part, contends that “[d]efendant did not meet the eligibility criteria for a downward departure sentence under ORS
137.712.” For the reasons that follow, we conclude that the
victim suffered “a serious and temporary disfigurement.”
ORS 137.712(6)(c)(B).5
     4
       As defendant notes in his opening brief, “[t]he trial court appeared to rely
on (A)” based on its finding “that there was a significant injury and that there
was a risk of death.” In defendant’s preservation section, however, defendant
states only that the “trial court ruled that defendant was not eligible for an optout of Measure 11 due to the victim’s injury,” but he does not point to any particular subsection of ORS 137.712(6)(c) as the basis for the trial court’s ruling that the
victim’s injury was significant. Presumably, that is why defendant also argues
that, “[a]lthough the trial court appeared to rely only on the risk of death factor,
… no other factors support a conclusion that the victim suffered a significant
physical injury”—including whether the injury caused “a serious and temporary
disfigurement” under ORS 137.712(6)(c)(B). Cf. State v. Ruiz, 

,

, rev den, 

 (2008) (where appellants “fail to challenge the
alternative basis of the trial court’s ruling, we must affirm it” (internal quotation
marks omitted)).
     5
       As noted above, we infer from the parties’ arguments and the trial court’s
ruling that it rejected defendant’s argument that the victim did not suffer a serious and temporary disfigurement, because, although “she initially did have something that required staples,” the victim’s wound could have “healed very rapidly
on its own.” The state, as the respondent on appeal, does not renew its contention
that the victim suffered a serious and temporary disfigurement in support of the
trial court’s ruling denying defendant eligibility for a downward departure sentence. But that failure does not prevent us from addressing defendant’s argument
on appeal that the victim did not suffer a serious and temporary disfigurement,
because, on this record, we can infer from the context of the trial court’s ruling
that it relied on the state’s contention that the victim’s wound was “a serious and
temporary disfigurement for the splitting open of the scalp to … the skull and
the [staples] that followed.” As discussed above, the trial court ruled that the
“fact that victim received … four or six staples in her head” was “evidence that
this was not just a gash that would heal up quickly.” See State v. Nix, 

, 43 n 7, 

 (2010), rev dismissed as improvidently allowed,

 (2011) (observing that, “[a]lthough defendant, as respondent, d[id]
not renew [a] … contention in support of the trial court’s ruling, that failure
d[id] not preclude us from, as a prudential matter, considering and addressing
the correctness of a contention raised to the trial court” where “the trial court
has not expressly expressed its reasoning,” but “it is likely, in the totality of the
circumstances, that the trial court’s ruling was based on a specific contention
raised and developed by the prevailing party”); State v. Williams, 

, 

 (1999) (“In construing a statute, this court is responsible
for identifying the correct interpretation, whether or not asserted by the parties.”
(Internal quotation marks omitted.)).
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          We have not yet interpreted the phrase “serious
and temporary disfigurement” as used in ORS 137.712
(6)(c)(B). What constitutes “a serious and temporary disfigurement” under ORS 137.712(6)(c)(B) is a question of statutory interpretation. “A trial court’s interpretation of a statute is reviewed for legal error.” State v. Thompson, 

, 

, cert den, 

 (1999). When
we interpret a statute, “[w]e ascertain the legislature’s
intentions by examining the text of the statute in its context, along with any relevant legislative history, and, if necessary, canons of construction.” State v. Cloutier, 

, 

 (2011) (citing State v. Gaines, 

, 

 (2009)).
         We start with the statutory text because it is
“the best evidence of the legislature’s intent.” PGE v.
Bureau of Labor and Industries, 

, 

 (1993). As noted, a defendant is eligible for a downward departure from the mandatory minimum 70-month
sentence for second-degree assault under ORS 137.700
(2)(a)(G) if the defendant proves by a preponderance of the
evidence that the victim did not suffer a “significant physical
injury” under ORS 137.712(2)(b)(B). A “significant physical
injury” is defined in ORS 137.712(6)(c)(B) as an injury that,
among other things, “[c]auses a serious and temporary disfigurement.” A “serious and temporary disfigurement” is not
statutorily defined so we may look to dictionary definitions
to ascertain the plain meaning of that phrase. See Gaines,

 (using dictionary definitions to discern the
plain, natural, and ordinary meaning of terms). However, in
this case, we briefly pause to review the text in context and
the legislative history, because an understanding of the text
in context and the legislative history provides a useful backdrop to ascertain the legislature’s intended meaning of the
phrase, “serious and temporary disfigurement.” See State v.
Gonzalez-Valenzuela, 

, 

 (2015)
(discussing the “limitations” of consulting dictionaries “in
a vacuum,” and noting that “context may also reveal that
the dictionary contains no definitions clarifying the issue
in dispute” (internal quotation marks omitted)). That is so
because, as explained below, the legislature intended for us
to rely on the statutory definitions of “physical injury” and
242                                            State v. Drew

“serious physical injury,” and our case law applying those
phrases, to determine what qualifies as a “significant physical injury.”

         In January 1997, House Bill (HB) 2233 (1997) was
introduced to provide certain exceptions to the mandatory
minimum sentences under ORS 137.700. Then, approximately six months later, the House Judiciary Committee
held a public hearing on HB 2233 to consider the proposed
“dash 14 amendments.” House Committee on Judiciary,
HB 2233, June 12, 1997. At that hearing, Mark Gardner,
Special Counsel to Attorney General Hardy Myers, testified in support of the “dash 14 amendments” to HB 2233.
Tape Recording, House Committee on Judiciary, HB
2233, June 12, 1997, Tape 55, Side B (statements of Mark
Gardner). Gardner explained that the proposed “dash
14 amendments” were the product of a work group convened
by the Department of Justice that included representatives from the Oregon District Attorneys Association, the
Citizens Crime Commission, Crime Victims United, and
the Oregon Criminal Defense Lawyers Association, and
that the amendments represented a “finely crafted compromise.” Exhibit K, House Committee on Judiciary, HB 2233,
June 12, 1997 (accompanying testimony of Mark Gardner).
See Kohring v. Ballard, 

, 

(2014) (it “is appropriate to give greater weight” to statements of nonlegislators “when the nonlegislators were the
drafters and principal proponents of a bill, and it is clear
that the legislature relied on their explanations”).

        Also testifying in support of the “dash 14 amendments” was Francis Baker, of the Citizens Crime Commission, who was also a part of the work group that worked on
adding the phrase “significant physical injury,” as it had yet
to be defined in the criminal code. Tape Recording, House
Committee on Judiciary, HB 2233, June 12, 1997, Tape
55, Side B (statements of Francis Baker). Baker testified
that the phrase “significant physical injury” was “carefully
drafted” by looking to the existing definitions of “physical
injury” and “serious physical injury” under ORS 161.015,
and the case law interpreting those phrases, to determine
what qualifies as a “significant physical injury.” 

 Baker
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explained that the phrase “significant physical injury” was
intended to “fill[ ] in” the “wide gap” between the categories
of what constitutes a “physical injury” and a “serious physical injury.” 

          For example, Baker presented a hypothetical in
which she discussed how a 16-year-old boy would be eligible for a downward departure if he were to throw a phone
at his sister “causing a bruise and a cut on her cheek bone”
because the “injury was not significant.” Id.; Exhibit M,
House Committee on Judiciary, HB 2233, June 12, 1997
(accompanying testimony of Francis Baker). As an example
of a situation in which a defendant would be ineligible for a
downward departure, Baker pointed to State v. Moyer, 

, 

 (1978), a case in which we concluded that the trial court erred in finding that the victim’s
scars that were caused by a stab wound to the chest constituted a “serious and protracted disfigurement,” because
“the two scars, located as they are in an area normally covered by clothing, do not constitute the sort of injury contemplated in ORS 161.015[.]” Exhibit M, House Committee
on Judiciary, HB 2233, June 12, 1997 (accompanying testimony of Francis Baker). According to Baker, the injury suffered by the victim in Moyer seemed to the workgroup like
more than a “physical injury,” but she noted that the Court
of Appeals had no other option but to conclude that it was
merely a physical injury, because there was no class of injury
that fell between a “physical injury” and a “serious physical
injury.” Tape Recording, House Committee on Judiciary, HB
2233, June 12, 1997, Tape 55, Side B (statements of Francis
Baker).

        At a work session that same day, the House Committee on Judiciary voted to adopt the “dash 14 amendments” to HB 2233 and inserted the amended text of HB
2233 into another bill, Senate Bill (SB) 1049 (1997), in
a practice colloquially known as “gutting and stuffing.”
Tape Recording, House Committee on Judiciary, HB 2233,
June 12, 1997, Tape 56, Side B (statements of Rep John
Minnis). The Senate concurred in the House amendments
to SB 1049 and Governor Kitzhaber signed the bill into law.
Thus, that preceding legislative history reveals that the
244                                              State v. Drew

legislature intended for us to rely on our case law applying
the phrases “physical injury” and “serious physical injury”
to interpret the phrase “significant physical injury.”
         With that legislative history in mind, we begin
with the definitions of “physical injury” and “serious physical injury” under ORS 161.015 as context for interpreting
the phrase “significant physical injury” under ORS 137.712,
which includes an injury that causes a “serious and temporary disfigurement.” See State v. Klein, 

, 

 (2012) (a statute’s context includes “related statutes
and case law”); Cloutier, 

 (“[I]n the absence of
evidence to the contrary, we ordinarily assume that the legislature uses terms in related statutes consistently.”).
         As used in the statutes defining phrases that apply
to the various degrees of assault, ORS 161.015(7) defines
“physical injury” to mean the “impairment of physical condition or substantial pain,” and does not refer to injuries
that result in disfigurement. ORS 161.015(8) defines “serious physical injury,” in relevant part, as a “physical injury
… which causes serious and protracted disfigurement.” As
such, we look to our cases applying the phrases “physical
injury” and “serious physical injury” as context for interpreting the phrase “serious and temporary disfigurement”
in our endeavor to fill in the gap between what constitutes
a “physical injury” and what constitutes a “serious physical
injury.” See State v. McAnulty, 

, 

(2014) (in examining the text in context, “[w]e also consider
this court’s prior construction of the statutes at issue”).
         We begin by discussing Moyer in a little more detail,
because it was the most relevant case cited in the legislative
history that applied the phrase “serious and protracted disfigurement” to determine whether an injury was a serious
physical injury. In Moyer, the victim was stabbed once in the
chest, resulting in a scar one to one and one-quarter inches
long and one-eighth of an inch wide just to the left of the victim’s sternum. 

. Additionally, the stabbing
resulted in a second scar from exploratory surgery which
“beg[an] four inches below the neck and extend[ed] downward for six to seven inches.” 

 We concluded that the trial
court erred when it found that those injuries constituted a
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“serious and protracted disfigurement.” Id. at 479-81. We
noted that there was no evidence of “how noticeable the
scars would remain over time” and that the scars were
“located … in an area normally covered by clothing,” and,
thus, did “not constitute the sort of [serious physical] injury
contemplated in ORS 161.015.” Id. at 480-81. Because a
“serious physical injury” was a prerequisite to a finding that
defendant had committed first-degree assault, we directed
that the judgment should be modified to reflect a conviction
for the lesser included crime of second-degree assault. Id. at
481.

         In Alvarez, 

, we concluded that
a scar on the scalp, visible five months after an assault, constituted a “serious and protracted disfigurement” under ORS
161.015(8), and, thus, constituted a “serious physical injury,”
ORS 163.185(1)(a). In Alvarez, we affirmed the trial court’s
denial of a motion for judgment of acquittal on a first-degree
assault charge where the assault had caused a wound to
the victim that “had to be closed with four surgical staples,
and left a scar [on the victim’s scalp] that was visible to the
jury five months after the attack.” 

. The defendant in Alvarez argued that the injuries to the victim were
“not serious enough to amount to ‘serious physical injury’
under ORS 163.185(1)(a),” which, as noted above, is defined
in ORS 161.015(8) to mean a “physical injury which,” among
other things, “causes serious and protracted disfigurement.”

. We rejected the defendant’s argument, holding
that “a scar on the scalp, visible five months after the injury,
qualifies as a ‘[serious and] protracted disfigurement,’ ORS
161.015(8), and therefore as a ‘serious physical injury,’ ORS
163.185(1)(a).” 

. We also declined to hold that a scar
was not a disfigurement merely because the victim of an
assault could conceal the scar by wearing his or her hair in
a particular manner. 

        Following Alvarez, we decided Kinsey. In Kinsey, we
affirmed the trial court’s determination that the defendant
was ineligible for a downward departure sentence under
ORS 137.712 for a second-degree assault conviction, because
the evidence was legally sufficient to support a determination that the victim suffered a “protracted disfigurement,”
246                                                           State v. Drew

ORS 137.712(6)(c)(C), and, therefore, a “significant physical
injury,” ORS 137.712(2)(b)(B). 

. The
defendant in Kinsey pistol-whipped the victim three times
in the head, which resulted in “a ‘2 inch full-thickness laceration on the left side of [the victim’s] head’ ” that required
five staples to close. 

. The staples were
removed eight days later, and defendant’s head was swollen
and misshapen. 

 That wound left a scar on the victim’s
head that was visible more than six months after the assault
occurred. 

. Guided by our holding in Alvarez, we
first concluded that “[a] scar on the scalp, resulting from a
blow to the head that is severe enough to cause one’s head
to be ‘really swollen, and misshapen,’ and that inflicts a
‘2 inch full-thickness laceration’ that has to be closed with
five staples, qualifies as a ‘disfigurement’ under ORS 137.712
(6)(c)(C).” 

. We also concluded, “in accordance
with our holding in Alvarez,” that the victim’s “disfigurement was ‘protracted,’ as that term is used in ORS 137.712
(6)(c)(C),” because the “victim’s scar was visible more than
six months after the assault occurred.” 

.
         With that background in mind, we turn back to the
question whether the injury that the victim suffered in this
case is the type of injury that the legislature intended to
qualify as a “serious and temporary disfigurement.” ORS
137.712(6)(c)(B).
         A “disfigurement” is defined as “the act of disfiguring or the state of being disfigured.” Webster’s Third New
Int’l Dictionary 649 (unabridged ed 2002). “Disfigure” is
defined as “to make less complete, perfect, or beautiful in
appearance or character : DEFACE, DEFORM, MAR .” Id.6 We
conclude that the wound on the victim’s forehead and scalp
     6
       As stated in the Proposed Oregon Criminal Code Final Draft and Report,
4, Commentary, Art 1, § 3 (1970), the definitions of “ ‘physical injury’ and …
‘serious physical injury’ are taken from the New York statute and have particular importance in the assault and robbery areas.” As the New York Court of
Appeals explained, “a person is disfigured when [their] natural beauty, symmetry or appearance is detrimentally altered—i.e., when [a person] is rendered less
attractive.” People v. McKinnon, 

, 

 (2010). “A person is ‘seriously’ disfigured when a reasonable observer would find [the person’s]
altered appearance distressing or objectionable” and the nature of “the injury
must be viewed in context, considering its location on the body and any relevant
aspects of the victim’s overall appearance.” 

Cite as 

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that was four to six inches in length and half an inch wide
after five staples had been used to close it is a “disfigurement” as that term is ordinarily understood. See Kinsey, 

 (concluding that a “scar on the scalp, resulting from a blow to the head that is severe enough to cause
one’s head to be ‘really swollen, and misshapen,’ and that
inflicts a “2 inch full-thickness laceration” that has to be
closed with five staples, qualifie[d] as a ‘disfigurement’ ”).
The victim’s wound was readily visible and detrimentally
marred her appearance.
         Moreover, the evidence introduced about the type,
size, visibility, and location of the wound, specifically the
photograph of the wound with five staples in it following the
assault, is legally sufficient to support a conclusion that the
disfigurement was “serious.” Compare Moyer, 

 (concluding that a scar one to one and one-quarter
inches long and one-eighth of an inch wide “located …
in an area normally covered by clothing” did not constitute a “serious and protracted disfigurement” under ORS
161.015), with State v. Kuperus, 

,

 (2011) (concluding that a “visible scar approximately four and one-half to five centimeters long where the
portion of the ear [wa]s missing” was a “serious and protracted disfigurement and, thus, a serious physical injury”);
Alvarez, 

 (concluding that a wound
that required four staples to close on the victim’s scalp
and the resulting scar which was visible five months after
the injury qualified as a “serious and protracted disfigurement” under ORS 161.015(8)); State v. Nguyen, 

, 

 (2008), rev den, 

 (2009)
(concluding that “ ‘prominent’ scarring above the victim’s
right ear approximately three inches long and about a halfinch wide where the hair does not grow back” constituted
a “serious and protracted disfigurement”); and Lambert v.
Palmateer, 

, 

, rev den,

 (2003) (concluding that “a two-inch-long, halfinch-wide divot [in the victim’s] left forehead … visible
from 40 feet away” constituted a “serious and protracted
disfigurement and, thus, serious physical injury within
the meaning of ORS 161.015” (internal quotation marks
omitted)).
248                                                              State v. Drew

         As discussed, the wound in this case was large,
highly visible, and on the victim’s face and scalp. A wound
to the face and scalp that is four to six inches in length
and half an inch wide, with five staples in it, and that is
readily apparent to others, is the type of disfigurement
that the legislature intended to qualify as “serious” under
ORS 137.712(6)(c)(B).7 In other words, the severity of the
victim’s disfigurement is such that “a reasonable observer
would find [the victim’s] altered appearance distressing or
objectionable,” particularly in light of its prominent location on the victim’s face and scalp, and the pictoral evidence
offered by the state in this case. McKinnon, 

.
See Exhibit M, House Committee on Judiciary, HB 2233,
June 12, 1997 (accompanying testimony of Francis Baker)
(discussing how a simple bruise and cut on victim’s cheek
caused by her brother throwing a phone would not qualify
as a significant physical injury). Hence, we conclude that the
victim suffered a “serious disfigurement” as a result of the
assault.
         To the extent that defendant renews his argument
that there was no evidence of “what [the victim’s] condition
was … even a week after this injury occurred” so it “might
have been that this cut healed very rapidly on its own,” the
evidence that the staples were not removed for approximately
two weeks belies that assertion. Based on the evidence of
the severity of the victim’s wound to her face and the evidence that the staples were not removed for approximately
two weeks, we conclude that the victim’s injury constituted a
“serious and temporary disfigurement.” ORS 137.712(6)(c)(B).
                            IV. CONCLUSION
         In sum, the injury that defendant inflicted upon
the victim falls within the “wide gap” that the legislature
intended to “fill[ ] in” between what constitutes a “physical injury” and a “serious physical injury.” Tape Recording,
    7
      The photograph of the victim’s wound was admitted as state’s Exhibit 11.
See Appendix; Lambert, 

 (noting the absence of “pictorial evidence” of the victim’s injury “to evaluate the severity of the disfigurement”); 

 (discussing the importance of photographic evidence and medical records
to “adequately convey[ ] the nature of the scar for purposes of appellate review”
(Armstrong, J., concurring in part, dissenting in part)).
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House Committee on Judiciary, HB 2233, June 12, 1997,
Tape 55, Side B (statements of Francis Baker). Moreover,
we conclude that the victim’s injury in this case constituted a “serious and temporary disfigurement” under ORS
137.712(6)(c)(B). Because the victim suffered a “significant
physical injury” from the assault, the trial court did not
err when it determined that defendant was ineligible for a
downward departure sentence under ORS 137.712. However,
in light of our conclusion that the trial court plainly erred in
failing to merge the two guilty verdicts into a single conviction for assault in the second degree, we reverse and remand
for resentencing.
        Convictions for second-degree assault and unlawful
use of a weapon reversed and remanded for entry of judgment of conviction for second-degree assault; remanded for
resentencing; otherwise affirmed.
250              State v. Drew

      APPENDIX
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           AOYAGI, J., concurring in part and dissenting in
part.
         I agree with the majority as to defendant’s first
assignment of error—the conceded merger error—but disagree as to the second assignment of error. Specifically,
I disagree that the trial court ruled on the “serious and
temporary disfigurement” issue. Because the trial court did
not actually rule on that issue, and because the state has
not argued that issue on appeal, it is procedurally improper
for us to affirm the “significant physical injury” ruling on
that basis. I therefore would reverse and remand for further proceedings on both the first and second assignments of
error.1
          Several related principles govern when we will
affirm a trial court ruling on a different basis than the parties argued to the trial court or are arguing on appeal. The
perhaps best-known of those principles apply when the trial
court did not decide an issue and the respondent asks us to
decide it for the first time on appeal as an alternative basis
to affirm a challenged ruling.2 Those situations are sometimes referred to as the trial court being “right for the wrong
reason.” But there are also circumstances in which we will
affirm a ruling on a basis that the trial court decided but
which the respondent is not defending on appeal—that is,
when the trial court was “right for the right reason.” In particular, if the trial court clearly decided an issue on a basis
that the respondent does not defend but which we determine
was correct, we will affirm on that basis, notwithstanding
the respondent’s lack of defense. See Cervantes v. Dept. of
Human Services, 

, 

 (2019)
(stating that we are not bound to accept a respondent’s concession on a legal issue and must decide whether to do so);
State v. Nix, 

, 43 n 7, 

(2010), rev dismissed as improvidently allowed, 

    1
      I agree with the majority on the supplemental assignment of error, regarding the nonunanimous verdict jury instruction.
    2
      See Outdoor Media Dimensions Inc. v. State of Oregon, 

,

 (2001) (regarding alternative bases to affirm that were not argued
in the trial court); State v. Lovaina-Burmudez, 

, 

,
rev den, 

 (2013) (regarding alternative bases to affirm that were
argued in the trial court but not decided in the trial court).
252                                                State v. Drew

(2011) (considering, albeit ultimately rejecting, a basis on
which the trial court actually ruled, even though the respondent did not defend it on appeal).
          In this case, in the trial court, the state made two
alternative arguments as to how the victim had suffered
a “significant physical injury” under ORS 137.712(2)(b)(B).
One was that the victim’s injury (a gash to her head) had
“create[d] a risk of death that [wa]s not a remote risk,” ORS
137.712(6)(c)(A), and the other was that the victim’s injury
had “cause[d] a serious and temporary disfigurement,” ORS
137.712(6)(c)(B). In response, defendant addressed the first
issue at some length and the second issue more briefly. On
the second issue, defendant argued that it was unknown
how long it had taken the victim’s cut to heal or what her
condition had been “at the time of trial” or “even a week
after this injury occurred.” Defendant noted that the cut
might have “healed very rapidly on its own and we simply
don’t have that information.” All that was known, defendant asserted, was that the injury required staples and that
“apparently, when she was in court, she no longer had the
staples.”
         At the end of the hearing, the trial court sentenced
defendant, including ruling that defendant was not legally
eligible for a lesser sentence under ORS 137.712(1) because
the victim had suffered a “significant physical injury.” The
court explained the basis for its “significant physical injury”
ruling as follows:
   “And I don’t find that the defendant qualifies to be taken
   out of Measure 11 on this case. I find that there was a significant injury and that there was a risk of death. 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 I don’t—I think that the State is right that
   before I can even look at that, I would have to look at
   whether this was a case involving significant injury with
   a weapon. And the fact that the victim received, I believe,
   four or six staples in her head is also evidence that this
   was not just a gash that would heal up quickly. It was
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    something that required a surgical intervention for it to be
    repaired.”3

(Emphases added and duplicate words omitted.)
         On appeal of the resulting judgment, in his opening brief, defendant states his understanding that the trial
court based its “significant physical injury” ruling on a
determination that the victim’s injury created a nonremote
risk of death under ORS 137.712(6)(c)(A). In an excess of caution, however, defendant also briefly addresses each alternative means of establishing a “significant physical injury,”
including serious and temporary disfigurement under ORS
137.712(6)(c)(B).4 To quote the opening brief, “Although the
trial court appeared to rely only on the risk of death factor, defendant notes that no other factors support a conclusion that the victim suffered a significant physical injury.”
In response, the state implicitly agrees that the trial court
ruled only on the “risk of death” basis. The state does not
contest defendant’s characterization of the court’s ruling,
and its own argument is limited to the “risk of death” issue.
         I agree with the parties that the trial court based
its “significant physical injury” ruling on the “risk of death”
factor in ORS 137.712(6)(c)(A) and did not reach the state’s
alternative argument about “serious and temporary disfigurement” under ORS 137.712(6)(c)(B). In concluding otherwise, the majority relies on the trial court’s reference to evidence that the victim’s head wound was “not just a gash that
would heal up quickly” but rather “something that required
a surgical intervention for it to be repaired”—which the
majority treats as a rejection of defendant’s assertion, during
his argument about serious and temporary disfigurement,

      3
        The trial court then proceeded to discuss defendant’s lack of remorse and
his assault of another person in jail while awaiting trial, before concluding with
the statement “that it’s appropriate for the defendant to serve the sentence under
[ORS] 137.700.”
      4
        Appellants must challenge every basis on which the trial court actually
ruled against them on an issue to avoid losing automatically, so, when there is
any risk that the trial court ruled on more than one basis, the safest course is
to address every possible basis. See Roop v. Parker Northwest Paving Co., 

, 

 (2004), rev den, 

 (2005) (“[W]here plaintiffs
fail to challenge the alternative basis of the trial court’s ruling, we must affirm
it.”).
254                                              State v. Drew

that the cut might have “healed very rapidly on its own.” See
302 Or App at 238.
         Although it is possible that the trial court meant
that statement as a ruling on the “serious and temporary
disfigurement” issue, it is unlikely. The court unequivocally began its ruling by stating that the injury created a
“risk of death” and proceeded to explain why. In context,
the statement on which the majority relies appears to have
been meant to emphasize the seriousness of the wound—
as further evidence that it created a risk of death—rather
than to rule on the separate legal issue of “serious and temporary disfigurement.” If the court meant to address disfigurement, rather than risk of death, it more likely would
have commented on the wound’s appearance than the type
of medical treatment it required. See id. (“disfigure” means
“to make less complete, perfect, or beautiful in appearance
or character” (quoting Webster’s Third New Int’l Dictionary
649 (unabridged ed 2002)).
         In any event, it is at best unclear whether the trial
court actually ruled on the “serious and temporary disfigurement” issue. The “prudential imperative” discussed in
Nix therefore is not present, because it is not “likely, in the
totality of the circumstances,” that the trial court actually
ruled on the issue. Nix, 

 n 7 (emphasis
added). As previously discussed, it is possible but not likely.
Accordingly, as a procedural matter, we should not affirm
on that basis. Moreover, to the extent that we have any discretion to consider an issue that the trial court might have
ruled on, even if it is not “likely”—see 

 (referring to “prudential” considerations)—I would not exercise that discretion to consider an issue that the parties do not believe that
the trial court ruled on and which requires us to address a
significant legal issue of first impression without meaningful briefing by defendant or any briefing at all by the state.
See 302 Or App at 240-41 (recognizing that we are construing the term “serious and temporary disfigurement” in ORS
137.712(6)(c)(B) for the first time).
         Because I do not think that we should reach the
legal issue of whether the victim suffered a “serious and
temporary disfigurement,” given the procedural posture of
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this case, I will not express any opinion on the merits of
that issue, except to reiterate that it would be better to have
briefing from the parties before deciding a significant legal
issue of first impression.
         The remaining issue is whether the victim’s injury
created a nonremote risk of death, ORS 137.712(6)(c)(A), as
the trial court ruled that it did. Because the majority does
not reach that issue, I will address it only briefly. The record
shows that the victim suffered a gash on her head that bled
profusely and required five staples to close, but that she did
not lose consciousness or suffer any brain injury. In my view,
on this record, it was speculative for the trial court to determine, apparently based on common knowledge, that the victim’s head wound caused a nonremote risk of death. I simply
do not think it is common knowledge what the risk of death
is from such a wound. And it is the risk of death from the
injury that is at issue. See ORS 137.712(6)(c) (“ ‘Significant
physical injury’ means a physical injury that: (A) Creates a
risk of death that is not a remote risk; ….”).
         In sum, with respect to the trial court’s ruling that
the victim suffered a “significant physical injury” under
ORS 137.712(2)(b)(B), making defendant legally ineligible
for a lesser sentence under ORS 137.712(1), I would reverse
and remand for further proceedings on that issue, in addition to reversing and remanding on the conceded merger
error. In my view, the trial court erred in ruling that the
victim’s injury “create[d] a risk of death that [wa]s not a
remote risk,” ORS 137.712(6)(c)(A), and, for procedural reasons, we either cannot or should not address the alternative
issue of whether the victim’s injury “cause[d] a serious and
temporary disfigurement,” ORS 137.712(6)(c)(B). I therefore respectfully dissent on the “significant physical injury”
issue.