763
Argued and submitted January 14; Count 1 reversed and remanded, otherwise
affirmed June 17, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
DONALD GERALD FIELDS,
Defendant-Appellant.
Marion County Circuit Court
17CR82839; A167801
468 P3d 1029
Defendant appeals a judgment of conviction for several crimes, challenging
only his conviction for second-degree assault, ORS 163.175. He contends that the
trial court erred in denying his motion for judgment of acquittal (MJOA) because
the state did not present sufficient evidence that the assault caused “serious
physical injury,” a necessary element of that crime. Held: Considering the evidence presented at trial, including the photographs of the injury, in the light most
favorable to the state, the Court of Appeals concluded that the trial court erred
when it denied defendant’s MJOA. Although the court has not defined an injury’s
seriousness solely by the length of the scar left on the victim’s body, based on the
evidence presented here, no reasonable factfinder could have concluded that the
victim’s two-centimeter long scar qualified as “serious” under ORS 161.015(8).
Count 1 reversed and remanded; otherwise affirmed.
Susan M. Tripp, Judge.
Eric Johansen, 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.
Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Count 1 reversed and remanded; otherwise affirmed.
764 State v. Fields
MOONEY, J.
Defendant appeals a judgment of conviction for
several crimes, challenging only his conviction for second-degree assault, ORS 163.175. He contends that the trial
court erred in denying his motion for judgment of acquittal
(MJOA) because the state did not present sufficient evidence
that the assault caused “serious physical injury,” a necessary
element of that crime. We agree and reverse and remand.
In reviewing the denial of an MJOA, we view the
evidence in the light most favorable to the state to determine whether a rational factfinder could find that the state
had proved every element of the offense beyond a reasonable
doubt. State v. Hall, 327 Or 568, 570,
966 P2d 208 (1998);
ORS 136.445.
On November 14, 2017, defendant and the victim
got into an argument. The argument became physical, and
defendant hit the victim in the head. The impact cut the
victim’s forehead and she began to bleed.
On November 27, 2017, local police contacted the
victim for a community caretaking check. The victim told
the officer about the details of the November 14 argument.
The officer took photos of the injury to the victim’s head.
The photos show that the victim had a scar on her forehead
approximately one to two centimeters (three-eighths to
three-quarters of an inch) long.
Defendant was subsequently charged with various
crimes, including second-degree assault. At the bench trial,
five months later, the victim’s scar was still visible. The trial
court described the injury as “a little bit more than two centimeters” long in the middle of the victim’s forehead and
explained that the injury was “adequately depicted” in the
photographs taken in November.1 After the state presented
its case, defendant moved for judgment of acquittal. The
court denied the motion and subsequently found defendant
1
The “trial court’s description of what it observed, while not evidence, is
explanatory regarding the import of that demonstrative evidence to the factfinder.” Lambert v. Palmateer, 187 Or App 528, 537,
69 P3d 725, rev den,
336
Or 125 (2003) (explaining that the “scar itself was demonstrative evidence that
conveyed a ‘firsthand sense impression to the trier of fact’ ”).
Cite as
304 Or App 763 (2020) 765
guilty on that charge. Defendant appeals the denial of the
MJOA.
A person commits second-degree assault, a Class B
felony, if that person
“(a) Intentionally or knowingly causes serious physical
injury to another;
“(b) Intentionally or knowingly causes physical injury
to another by means of a deadly or dangerous weapon; or
“(c) Recklessly causes serious physical injury to
another by means of a deadly or dangerous weapon under
circumstances manifesting extreme indifference to the
value of human life.”
ORS 163.175(1). Here, defendant was convicted under ORS
163.175(1)(a) for intentionally or knowingly causing serious
physical injury to another. As alleged by the state in this
case, “serious physical injury” means “physical injury …
which causes serious and protracted disfigurement.” ORS
161.015(8).
Defendant contends that the evidence that the
state presented about the victim’s injury does not meet the
requirements of ORS 161.015(8). Because defendant concedes that the injury qualifies as a “disfigurement” and that
the disfigurement was “protracted,” the sole issue on appeal
is whether the trial court erred in concluding that the protracted disfigurement was “serious.”
The state argues that “whether a disfigurement is
‘serious’ depends on its prominence—whether it stands out
or is noticeable—in light of its location, size, and shape.”
Defendant agrees that whether the disfigurement is serious depends, in part, on whether it is “prominent,” but he
contends that prominence must mean more than that the
injury is noticeable or visible. We agree that “prominence”
is a factor to consider in determining the seriousness of the
disfigurement under ORS 161.015(8), but we conclude that
it must be considered along with the totality of the circumstances presented in each case.
We have described the appearance and visibility
of scars left by injuries in cases in which we reviewed the
766 State v. Fields
propriety of convictions for first- and second-degree assault.
We have also described the appearance and visibility of scars
left by injuries in cases in which we reviewed the propriety
of imposing a mandatory minimum sentence for defendants
convicted of second-degree assault. We have discussed ORS
161.015(8) in both types of cases (whether a scar amounts to
“disfigurement”; if so, whether that disfigurement is “protracted”; and, if so, whether the protracted disfigurement is
“serious”), although we note that, in the sentencing cases,
the ultimate question under ORS 137.172(2)(b)(B) is whether
the victim suffered “significant physical injury.”
In State v. Dazhan, Sears, 15 Or App 300, 305,
516
P2d 92 (1973), we held that a “permanent scar under the
right eye” could not be characterized as “serious and protracted disfigurement.” Acknowledging that the victim
had been subjected to “a severe beating,” we noted that
there was no lasting impairment or loss of sight, and we
remanded the case for entry of a judgment for third-degree
assault. In State v. Moyer,
37 Or App 477, 480-81,
587 P2d
1054 (1978), we held that the scar from the stabbing (one
and one-quarter inches long and one-eighth inch wide) and
the one from the post-stabbing surgery (six to seven inches
long and one-quarter inch wide), both of which were raised
and red two months after the assault, were not “the sort of
injury contemplated [by] ORS 161.015[(8)].” We emphasized
that the scars were located “in an area normally covered by
clothing.”
Id.
In Lambert v. Palmateer, 187 Or App 528, 538,
69
P3d 725, rev den,
336 Or 125 (2003), a post-conviction relief
case, we distinguished Dazhan and Moyer, holding that evidence of “a two-inch-long, half-inch wide divot in [the victim’s] left forehead in the temporal region, which [is visible] easily at 40 feet” was sufficient to support the finding
of “serious and protracted disfigurement.” Specifically, we
concluded that “[a] divot in a victim’s forehead is a significantly different disfigurement from the nature of the scars
at issue in Dazhan and Moyer.” Id. at 538 (emphasis in original). In State v. Nguyen,
222 Or App 55, 67,
191 P3d 767
(2008), we likewise held that a rational trier of fact could
conclude that “prominent” scarring above the victim’s right
Cite as
304 Or App 763 (2020) 767
ear approximately three inches long and half an inch wide
“where the hair does not grow back” constitutes serious and
protracted disfigurement. And, in State v. Alvarez,
246 Or
App 167,
240 P3d 26 (2010), rev den,
350 Or 408 (2011), we
held that scars left on the scalp from an assault with a baseball bat that continued to be visible five months later qualified as protracted disfigurement. In response to an argument that the victim could conceal the scars, we stated that
the ability to hide a scar “by limiting [one’s] fashion or style
options” does not mean the injury is not disfiguring. Id. at
171. And, of course, it makes the injury no less serious.
We have had occasion more recently to review residual scarring as it relates to the seriousness of harm suffered by crime victims in the context of defendants seeking
relief from mandatory minimum sentences. Those cases are
different because they involve sentencing, and because the
question is whether the victim suffered “significant physical injury” that can be either “serious and temporary disfigurement” or “protracted disfigurement.” ORS 137.712(6)(c).
They are, nevertheless, helpful to this discussion. And, so, in
State v. Kinsey, 293 Or App 208, 214,
426 P3d 674 (2018), we
held that, because the victim’s scar was visible six months
after the pistol-whipping assault, it qualified as “protracted
disfigurement” and the defendant was not entitled to a
downward departure sentence. And, in State v. Drew,
302
Or App 232, 248-49,
460 P3d 1032 (2020), we likewise held
that the victim suffered “significant physical injury” and the
defendant was therefore not eligible for a lesser sentence.
The scar in Drew was four to six inches long, running from
the front of the forehead onto the scalp. It took five staples to
close and was described as large and highly visible.
Our cases tend to focus on descriptions of the residual scars, which, in turn, leads to discussion of visibility and
duration. And, there can be no doubt that the scars left by
a physical assault bear on the seriousness of the injury. We
reiterate, however, that the ability to conceal a scar does not
mean it is not there. And it does not mean that the injury
was not serious. A complete inquiry requires an assessment of all the factors present in a case, including the scar
itself.
768 State v. Fields
Under our prior case law, considering the evidence
presented at trial, including the photographs of the injury,
in the light most favorable to the state, we conclude that the
court erred when it denied defendant’s MJOA. Although we
have not defined an injury’s seriousness solely by the length
of the scar left on the victim’s body, based on the evidence
presented here, no reasonable factfinder could conclude that
the victim’s two-centimeter long scar qualifies as “serious”
under ORS 161.015(8). The trial court erred in denying
defendant’s MJOA.
Count 1 reversed and remanded; otherwise affirmed.
