230
Argued and submitted February 28, 2018; affirmed April 1; petition for review
allowed, decision of Court of Appeals reversed in part, judgment of circuit court
reversed, and case remanded to the circuit court for further proceedings
June 4, 2020 (366 Or 551)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER ALLEN SHOEMAKER,
Defendant-Appellant.
Deschutes County Circuit Court
16CR22762; A162595
464 P3d 136
Defendant appeals a judgment of conviction for fourth-degree assault, ORS
163.160, assigning error to the trial court’s denial of his motion for judgment of
acquittal and its refusal to give his requested jury instruction defining “physical injury,” a required element of the offense. Held: The court rejected without
discussion defendant’s assignment of error challenging the denial of the motion
for judgment of acquittal. A paragraph of defendant’s proposed jury instruction,
which defined “impairment,” was correct in the abstract, but had the potential to
confuse the jury. For that reason, the trial court did not err in rejecting it.
Affirmed.
Bethany P. Flint, Judge.
Brett J. Allin, 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.
Sharia Mayfield, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
ARMSTRONG, P. J.
Affirmed.
Cite as 303 Or App 230 (2020) 231
ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for
fourth-degree assault, ORS 163.160, assigning error to the
denial of his motion for judgment of acquittal and to the
trial court’s refusal to give his requested jury instruction
defining “physical injury,” a required element of the offense.1
We affirm without discussion the trial court’s rejection of
defendant’s motion for judgment of acquittal and write only
to address defendant’s contentions regarding the failure to
give the requested jury instruction. We conclude that the
trial court did not err and affirm.
Officers responded to a call about a domestic dispute
from the victim’s son, who reported to a 9-1-1 dispatcher that
defendant had pushed the victim into a door. At the scene,
officers found the victim holding her right side and visibly
in pain, but she denied that she was hurt. Officers noticed a
small wound on the victim’s shoulder, which she said stung.
Defendant, who was also present, told officers that he had
put his hands on the victim’s shoulders to move her out of
the way but denied hurting her.
Officers arrested defendant, and he was charged
with assault in the fourth degree as a Class C felony, because
the victim’s minor child had been present during the alleged
assault. ORS 163.160(3) (assault committed in the immediate presence of a victim’s minor child is elevated to a Class C
felony).
As relevant here, ORS 163.160 provides that a person commits the crime of assault in the fourth degree if
the person “[i]ntentionally, knowingly or recklessly causes
physical injury to another.” “Physical injury” is defined as
1
Defendant contends in a supplemental assignment of error that the trial
court erred in instructing the jury that it could reach a verdict based on the
agreement of 10 or more jurors. Defendant is incorrect. State v. Bowen, 215 Or
App 199, 202,
168 P3d 1208 (2007), adh’d to as modified on recons,
220 Or App
380,
185 P3d 1129, rev den,
345 Or 415 (2008), cert den,
558 US 815,
130 S Ct
52,
175 L Ed 2d 21 (2009). We note that the United States Supreme Court has
granted certiorari in Ramos v. Louisiana, ___ US ___,
139 S Ct 1318, ___ L Ed
2d ___ (2019), to consider whether the Sixth Amendment to the United States
Constitution requirement of jury unanimity applies to the states under the
Fourteenth Amendment to the United States Constitution.
232 State v. Schoemaker
“impairment of physical condition or substantial pain.” ORS
161.015(7). Defendant’s primary contention at trial was that
he had not caused the victim to suffer physical injury. The
victim testified that defendant had pushed her out of his
way, causing her to stumble into a glass panel. She testified that she may have been hurt on her neck but denied
any other injury. Officers testified that, when they arrived
at the scene, the victim was visibly in pain, holding her side,
with labored movements, and appeared to be struggling to
breathe.
The trial court gave the jury a uniform instruction
defining “physical injury” that paraphrases the statutory
definition:
“The term physical injury means injury that impairs a person’s physical condition or causes substantial pain.”
Defendant sought an instruction of “physical injury” that
included the above sentence but that also included paragraphs defining “substantial pain” and “impairment”:
“Substantial pain refers to degree and duration of pain
suffered by the victim. To be substantial the pain must be
ample or considerable. That requirement excludes pain
that is fleeting or inconsequential.
“Impairment of a physical condition means harm to the
body that results in a reduction in one’s ability to use the
body or bodily organ for some duration that is less than a
protracted period of time.”
The trial court declined to give defendant’s requested
instruction.
On appeal, defendant contends that the trial court
erred in failing to give the requested instruction, because
it provided correct statements of the law and would have
helped the jury in its determination whether defendant had
caused the victim physical injury. See State v. Washington,
355 Or 612, 621,
330 P3d 596 (2014) (generally, a party is
entitled to an instruction on its theory of the case if the
instruction correctly states the law and is warranted by the
particular facts in the case).
Cite as
303 Or App 230 (2020) 233
The state responds that the trial court correctly
declined to give the requested instruction, either because
the supplemental paragraphs were unnecessary in light of
the instruction given, which adequately covered the subject of physical injury, State v. Tucker, 315 Or 321, 332,
845
P2d 904 (1993) (absence of an instruction is not error if the
instructions given by the court adequately cover the subject
of the requested instruction), or because the second supplemental paragraph had the potential to confuse the jury.
We agree with the state that the second supplemental paragraph, defining “impairment,” although correct in
the abstract, had the potential to confuse the jury. In particular, the phrase “for some duration that is less than a
protracted period of time” could have caused the jury to
misunderstand that it could not convict defendant of fourth-degree assault if the impairment was not for less than “a
protracted period of time.” In other words, if the jury were
to find that the victim’s impairment was “protracted,” that
phrase could have led the jury to conclude that it could not
convict defendant. Defendant asserts that the phrase would
not have confused the jury, because it merely addressed the
duration of the required impairment and correctly stated
that, for the offense of assault in the fourth degree, the
impairment need not be for a protracted period. But, even
assuming that defendant is correct that the jury would not
have been confused in that way, the duration of the victim’s
impairment and whether it was protracted did not bear on
assault in the fourth degree as defendant was charged in
this case and was not at issue in the case.2 Thus, that portion of the instruction as proposed could not have helped the
jury and could have caused the jury to believe that whether
the injury was protracted was relevant. See, e.g., Staten v.
Steel, 222 Or App 17, 41,
191 P3d 778 (2008), rev den,
345 Or
618 (2009) (inclusion of components in an instruction that
do not bear on the case have the potential to confuse the
2
Whether impairment is “protracted” is relevant to charges requiring proof
of “serious physical injury.” See, e.g., ORS 163.160(1)(c) (defining criminally
negligent assault in the fourth degree with a motor vehicle); ORS 163.175(1)(b)
(defining assault in the second degree); ORS 161.015(8) (defining “serious physical injury” as “physical injury which creates a substantial risk of death or which
causes serious and protracted disfigurement, protracted impairment of health or
protracted loss of impairment of the function of any bodily organ”).
234 State v. Schoemaker
jury).3 For the above reasons, we conclude that the trial court
did not err in rejecting the proposed instruction.
Affirmed.
3
In view of our conclusion that the second paragraph of the proposed instruction had the potential to confuse the jury, we do not address defendant’s contention that the first paragraph, further defining “substantial pain,” was necessary
to assist the jury. We note that in State v. Roberts, 293 Or App 340,
427 P3d 1130
(2018), we held that a trial court had erred in failing to instruct the jury on the
definition of “substantial pain.” We explained that the instruction was necessary
in that case because it was unlikely in that case “that jurors would understand,
without further instruction, that even pain that is significant in degree generally
is not ‘substantial pain’—at least, not for purposes of the element of ‘physical
injury’—if it is only fleeting, i.e., not substantial in duration.”
Id. at 347 (emphasis
in original).
