State v. Larrazabal

                                   831

   Argued and submitted October 19; in Case No. 18CR48123, convictions
 on Counts 5 and 6 reversed, remanded for resentencing, otherwise affirmed;
             in Case No. 18CR69378, affirmed December 9, 2020


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
             CHASE MICHAEL LARRAZABAL,
                   Defendant-Appellant.
              Washington County Circuit Court
                 18CR48123, 18CR69378;
                A169561 (Control), A169562
                               

  Eric Butterfield, Judge.
   Anne Fujita Munsey, 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.
   E. Nani Apo, 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.
  PER CURIAM
   In Case No. 18CR48123, convictions on Counts 5 and 6
reversed; remanded for resentencing; otherwise affirmed.
In Case No. 18CR69378, affirmed.
832                                                   State v. Larrazabal

           PER CURIAM
         In this consolidated criminal appeal, defendant
challenges his convictions in Case No. 18CR48123 for seconddegree assault, ORS 163.175 (Count 3), and two counts of
third-degree assault, ORS 163.165 (2017), amended by Or
Laws 2019, ch 213, § 119 (Counts 5 and 6).1 A detailed discussion of the facts would not benefit the bench, the bar,
or the public. Suffice it to say that the convictions at issue
on appeal arose from an incident in which defendant drove
recklessly through Beaverton, with police pursuing him,
weaving in and out of traffic, sometimes into the oncoming
lane, running stop signs and red lights, exceeding the speed
limit (at times by almost twice the limit), and, eventually,
striking a pickup truck from behind, losing control, and
then colliding with a second vehicle, seriously injuring its
driver.
         On appeal, defendant first challenges the trial
court’s denial of his motion for judgment of acquittal (MJOA)
on Count 3; we reject that assignment without discussion.
In his second and third assignments, defendant contends
that the court erred in denying his MJOAs on Counts 5
and 6. Those counts charged third-degree assault based on
defendant “unlawfully and recklessly, under circumstances
manifesting extreme indifference to the value of human life,
caus[ing] physical injury to [the victim] by means of a vehicle, a dangerous weapon.” See ORS 163.165(1)(c) (2017). The
victim in Count 5 was L, the driver of the pickup; S, his passenger, was identified as the victim in Count 6.
         Defendant argues that the state failed to prove the
“physical injury” element of the offenses, in particular, that
L or S suffered “substantial pain.” See ORS 161.015(7) (defining “physical injury” as “impairment of physical condition or
substantial pain”). To be substantial, the pain subjectively
experienced by the victim “must be ample or considerable,
and not fleeting or inconsequential.” State v. Long, 

, 

 (2017) (internal quotation
marks omitted). L testified at trial that he had some muscle

    1
      Defendant does not raise any issues with regard to his other convictions in
that case or with respect to Case No. 18CR69378.
Cite as 

 (2020)                                           833

soreness in his back that night and the next morning, but
that it had gone away within 30 hours. S described “some
tenderness” for a couple of days along the site of a recent
biopsy on her outer thigh, but only “if it was pressed upon.”
Defendant is correct that, under our case law, that evidence
is insufficient for a reasonable factfinder to find, beyond a
reasonable doubt, that either L or S suffered substantial
pain.2 See, e.g., State v. Johnson, 

,

 (2015), rev den, 

 (2016) (victim’s testimony that “she felt a ‘sting’ when defendant slapped her”
was “insufficient to support a finding of substantial pain”);
State v. Lewis, 

, 

 (2014)
(even if factfinder could infer that hair being pulled from
victim’s head caused her some pain, no evidence that degree
or duration was sufficient to constitute substantial pain).
        In Case No. 18CR48123, convictions on Counts
5 and 6 reversed; remanded for resentencing; otherwise
affirmed. In Case No. 18CR69378, affirmed.




    2
      Given that conclusion, we need not address defendant’s argument that the
state also failed to prove the “extreme indifference” element of the offenses.