680
Submitted January 27, affirmed May 26, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
TYLER JAMES MILLER,
aka Tyler James Lupoli,
aka Tyler Miller,
Defendant-Appellant.
Washington County Circuit Court
19CR02625, 18CR45019, 19CR01241;
A170947 (Control), A170945, A170946
488 P3d 830
Defendant appeals from a judgment convicting him of two counts of fourth-degree assault, ORS 163.160. He assigns error to the trial court’s denial of his
motion for judgment of acquittal on both counts, arguing that the evidence was
insufficient to prove the required element of “substantial pain.” Held: The Court
of Appeals concluded that the evidence was sufficient to support an inference
from which a rational factfinder could conclude that defendant’s assault caused
the victim, S, substantial pain.
Affirmed.
Danielle J. Hunsaker, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joshua B. Crowther, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 311 Or App 680 (2021) 681
ORTEGA, P. J.
Defendant appeals from a judgment convicting
him of two counts of fourth-degree assault, ORS 163.160.
He assigns error to the trial court’s denial of his motion
for judgment of acquittal on both counts, arguing that the
evidence was insufficient to prove the required element of
“substantial pain.” We agree with the state that the evidence was sufficient to support an inference from which a
rational factfinder could conclude that defendant’s assault
caused the victim, S, substantial pain. Accordingly, we
affirm.
We begin by stating the facts “in the light most
favorable to the state.” State v. Casey, 346 Or 54, 56,
203
P3d 202 (2009). After investigating a report of a man and
woman arguing, the police found S with two black eyes and
a cut over her right eye. Despite a “no-contact” order, defendant and S were involved in an intimate relationship at the
time of the incident and S was pregnant. As a result of the
incident, defendant was indicted for two counts of fourth-degree assault constituting domestic violence.
Defendant waived jury and proceeded with a bench
trial. The state presented evidence that included photographs of S’s injuries from the incident, as well as testimony
from three witnesses. The photographs, taken about a week
after the incident, showed that S had significant, deep purple bruising around both eyes and her nose and a cut above
her right eye. Officer Johnson testified to those injuries and
stated that the mark above her right eye was a “laceration.”
S testified that the bruises lasted for about a month.
S indicated that she did not remember “specifically”
what defendant did to her or what kind of pain she felt at
the time; she noted that she had been using drugs around
the time the incident occurred and that her memory was
affected. She explained, “you forget, like, quickly … following any kind of injury of that nature” involving “a momentary sort of pain” in contrast to extended pain like labor,
but noted that she was “probably explaining it wrong.” She
agreed that a blow that resulted in two black eyes “would
likely have caused somebody pain.”
682 State v. Miller
The state presented Jeff Muchow, who took notes for
the grand jury, to testify about S’s prior statements regarding the assault. He recounted S’s grand jury testimony that
defendant “punched her between the eyes … with closed
fists[,] knocked her down[, and] punched her again” causing
two black eyes, and a bruised nose and chin. According to
Muchow, S testified that defendant “kept punching [her] in
the face” and caused her “bleeding.”
At the close of the state’s case, defendant moved for
a judgment of acquittal, arguing that the state failed to meet
its burden to prove that S was injured for purposes of ORS
163.160.1 In denying the motion, the trial court pointed to
the photographs, witness statements of observations of her
physical condition, and S’s own testimony that the bruises on
her face had lasted up to a month. Although there was “not
specific evidence from her about the level of pain or how she
felt,” the trial court concluded that “common sense can be
utilized here and given the photographs and the testimony
about the injuries observed—common sense indicates that
those would be painful. They would cause pain and there
would be an injury.” Defendant was convicted of both counts
of fourth-degree assault constituting domestic violence.
At trial, the state was required to prove that defendant “intentionally, knowingly, or recklessly cause[d] physical injury” to the victim. ORS 163.160(1)(a). As relevant
here, “physical injury” means “substantial pain,” which
encompasses “the degree and duration of pain suffered
by the victim.” ORS 163.015(7) (defining “physical injury”
to mean “impairment of physical condition or substantial
pain”); State v. Poole, 175 Or App 258, 261,
28 P3d 643
(2001) (describing substantial pain). On appeal, defendant
maintains, as he did below, that, because the evidence was
insufficient to show that S suffered substantial pain, he was
entitled to a judgment of acquittal. He asserts that the evidence of pain is speculative, given S’s testimony that she
could not remember whether she felt pain and that any pain
was momentary, and he argues that the other testimony
1
“A person commits the crime of assault in the fourth degree if the person
… [i]ntentionally, knowingly or recklessly causes physical injury to another[.]”
ORS 163.160(1).
Cite as 311 Or App 680 (2021) 683
and photographs do not establish pain sufficient to sustain
a conviction.
The state contends that the evidence was sufficient
to support a reasonable inference that S’s pain was considerable and more than fleeting. It points to photographs and
testimony that defendant punched S’s face, knocked her
down, and caused her black eyes and bruises to her nose and
chin lasting for about a month, all supporting a conclusion
that her pain was considerable.
Reviewing for “whether the evidence was sufficient
to permit a reasonable trier of fact to find beyond a reasonable doubt” that defendant caused S substantial pain,” see
Casey, 346 Or at 58, we conclude that it was.
To qualify as substantial for these purposes, pain
must be “ample” or “considerable,” not “fleeting” or “inconsequential.” State v. Rennells, 253 Or App 580, 586,
291 P3d
777 (2012) (citing Poole,
175 Or App at 261). We have found
the evidence to be insufficient to establish substantial pain
in cases where the victim denied experiencing much pain
and where there were not physical signs to support an inference of substantial pain in the absence of testimony from
the victim. See, e.g.,
id. (holding that evidence of leg bruising that lasted several days after a “kicking match” was not
ample or considerable where the victim did not testify that
she had suffered any pain from the kicking and, when asked
whether she did, answered, “[n]o, I was kicking him”); State
v. Long,
286 Or App 334, 337, 342-43,
399 P3d 1063 (2017)
(concluding that evidence of bruising and scratch marks
around the collar bone and neck was insufficient to support
a nonspeculative inference of substantial pain where the
victim testified that she did not feel “a lot of pain” and had
“exaggerat[ed]” to get the defendant “in trouble”); State v.
Lewis,
266 Or App 523, 529-30,
337 P3d 199 (2014) (evidence
that the defendant pulled out the victim’s hair was insufficient to establish substantial pain where she did not testify
that she felt pain and there were not any physical signs to
support an inference that she suffered substantial pain).
Ultimately, “the set of reasonable inferences that
may be derived from the evidence is determinative as to
684 State v. Miller
whether the issue is submitted to the trier of fact.” State v.
Guzman, 276 Or App 208, 215,
366 P3d 816 (2016) (holding
that “when the victim does not provide direct evidence of his
or her subjective experience of the degree and duration of
the pain, … a trial court … must determine whether the
evidence would permit a rational jury to reasonably infer
that the victim suffered considerable pain and whether the
duration of the pain was more than fleeting”). The court
must determine the line between “inferences that are reasonable and those that are too speculative.”
Id. (quotations
omitted).
In Guzman, the victim failed to appear to testify
at trial. Despite the lack of victim testimony, however, the
record included photographs of the victim with bright red
scratches and facial swelling that corroborated other witness testimony and the victim’s statement to the 9-1-1 dispatcher that the defendant pushed her and would not let her
go. Id. at 215. We concluded that “a rational juror could infer
from that evidence that the victim’s injuries involved ‘ample’
or ‘considerable’ pain” that was more than fleeting and that
“the victim’s significant facial swelling immediately after
the altercation was painful and that her injuries turned into
significant bruising and soreness that persisted for a consequential amount of time.”
Id. at 215-16.
Likewise in this case, we conclude that the evidence
was sufficient to support an inference of substantial pain.
That evidence includes photographs depicting bruising
around S’s eyes and nose and a cut above her right eye which
Johnson described as a “laceration,” and Muchow’s testimony that S told the grand jury that defendant “punched”
her between the eyes with closed fists, knocked her down,
and punched her again causing bleeding, and that the bruising to her face lasted for about a month. It is reasonable to
infer from that evidence that the pain resulting from those
injuries was ample, considerable, and more than fleeting,
despite S’s more equivocal trial testimony about the extent
of her pain. Accordingly, the trial court did not err in denying defendant’s motion for judgment of acquittal.
Affirmed.
