State v. Sanchez

                                      765

        Argued and submitted February 8, affirmed November 24, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   KARL STEPHEN SANCHEZ,
                       Defendant-Appellant.
                   Lincoln County Circuit Court
                       18CR20055; A171255
                                 

    Defendant appeals a judgment convicting him of fourth-degree assault, ORS
163.160. He contends that the trial court erred when it denied his motion for
judgment of acquittal (MJOA), because the evidence was insufficient to show that
the victim, P, suffered “substantial pain.” Held: Although P did not testify, the
evidence—including testimony from multiple witnesses and photographs depicting significant, dark-colored bruising on P’s face that was present for at least
two and one-half weeks—was sufficient to support a reasonable inference that P
suffered pain that was more than “inconsequential” and “fleeting”; therefore, the
trial court did not err in denying defendant’s MJOA.
    Affirmed.



    Sheryl Bachart, Judge.
   Russell L. Baldwin argued the cause and filed the briefs
for appellant.
   Dashiell L. Farewell, 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 Aoyagi, Judge.
    TOOKEY, J.
    Affirmed.
    Aoyagi, J., dissenting.
766                                          State v. Sanchez

        TOOKEY, J.
         Defendant appeals a judgment of conviction for one
count of fourth-degree assault, ORS 163.160 (Count 2). He
assigns error to the trial court’s denial of his motion for
judgment of acquittal (MJOA) on Count 2, arguing that the
evidence was insufficient to prove that the victim, P, suffered “substantial pain.” We conclude that the evidence was
sufficient to support an inference from which a rational factfinder could conclude that defendant’s assault caused P to
suffer substantial pain; therefore, we affirm.
         We begin by “stating the facts in the light most
favorable to the state.” State v. Miller, 

,

 (2021) (internal quotation marks omitted). The
victim in this case, P, was defendant’s 86-year-old mother.
P “suffered from dementia,” “had Alzheimer’s,” and “had lost
a lot of her language skills.” P was unable to “do anything
for herself” and “needed round-the-clock care.” Defendant,
who lived with P, acted as P’s primary caregiver.
         In addition to receiving care from defendant, P also
received occasional in-home care from a Samaritan Home
Health nurse, Kimball. At defendant’s jury trial, Kimball
testified that, on one particular occasion, she visited P at
home to treat a pressure wound on P’s heel. During that
visit, Kimball saw that “[P] had a bruise covering … the
entire right side of her face.” Kimball asked defendant,
“Wow. That’s quite a bruise. What happened? Did [P] fall?”
Defendant responded, “We had a mealtime incident and
it was egregious, so [P] got bopped.” Kimball “was very
shocked” and, suspecting abuse, reported the incident to
both Adult Protective Services (APS) and the Sheriff’s office.
         In response to Kimball’s report, Lincoln County
Sheriff’s Deputy Davey went to investigate at P’s house.
There, Davey saw that P was “just sitting like slumped in
the chair,” “not moving, [or] interacting,” and “was nonresponsive.” Davey testified that, when he asked defendant
about the incident, defendant said he “bopped [P] to get
her to eat.” And in Davey’s bodycam recording—which was
played for the jury—defendant is heard to explain that he
“gave [P] a little pop on the side of the head,” using “a small
open fist.”
Cite as 

 (2021)                             767

         Though P was deceased at the time of defendant’s
trial and therefore did not testify, other witnesses corroborated that account of the incident. Schroeder, the APS
investigator assigned to the case, testified that she “did
ask [defendant] what happened, and he said that … to
get [P’s] attention, he had to bop her.” Similarly, Allen—
the administrator for a local assisted living facility—
testified that defendant had explained the incident to him:
“[Defendant] had told me that—his word was slap. That he
slapped his mother. And he stated she was spitting out food
and milk, and he needed to discipline her” to “get her to
behave.”
          The state’s evidence also included several exhibits:
photographs of P’s injury that Schroeder and Davey took
during their respective investigations. Davey’s photographs,
taken three days after the incident, showed dark-colored
bruising on the right side of P’s face, extending from her
cheekbone down to her jawline. Schroeder’s photos, taken
four days after the incident, show the same bruising, but
darker in color—almost black—and larger in area, covering
most of P’s right cheek, along with the right-hand portion of
her mouth and chin. About two and a half weeks after those
photographs were taken, Kimball visited P again and was
“still able to see the injury to [P’s] face.”
         After the state rested, defendant moved for judgment of acquittal, arguing that the state had failed to provide evidence sufficient to show P suffered “substantial
pain.” The trial court denied defendant’s MJOA, explaining
that although there was evidence that P “was in such a state
[that she] would never be able to express pain,” there was
also evidence of defendant “slapping or striking or hitting
[P] on the side of her face”; evidence and exhibits of “significant bruising on the right side of the alleged victim’s face”;
evidence that “[t]he bruise left was present for … a substantial period of time”; and that, based on that evidence, “a
reasonable inference is that [P] did, in fact, suffer [substantial] pain as a result of the contact that she had with the
Defendant.”
        On appeal, defendant argues that he was entitled
to a judgment of acquittal on Count 2, because the state’s
768                                           State v. Sanchez

“evidence was not sufficient for [a factfinder] to infer substantial pain beyond a reasonable doubt.” He asserts that
“[t]he state offered no direct evidence” that P suffered substantial pain, and “[a]t most, the state offered evidence of
bruising occasioned by one slap during an isolated feeding
period.” In response, the state argues that the trial court did
not err in denying defendant’s MJOA, because the evidence
was sufficient to “permit[ ] the jury to infer that [P] suffered
substantial pain.” As support for that inference, the state
points to testimony that defendant struck P in the face; testimony about the resulting bruising on P’s face; Davey’s and
Schroeder’s photographs of P’s facial bruising; and testimony that the “significant bruise” on P’s face “persisted for
at least two and a half weeks.”
          “We review the denial of an MJOA to determine
whether, after viewing the facts and all reasonable inferences in the light most favorable to the state, a rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Colpo, 

, 

, rev den, 

 (2020). In other words,
“[w]e will reverse a trial court’s denial of a motion for judgment of acquittal only where no rational trier of fact could
find all of the elements of the crime beyond a reasonable
doubt.” State v. Hopkins, 

, 

(2020), rev den, 

 (2021) (internal quotation marks
omitted). Here, we must determine whether a rational trier
of fact could find that defendant caused P “substantial pain,”
as that phrase is used in ORS 163.160.
         As used in ORS 163.160, “[t]he phrase ‘substantial
pain’ refers both to the degree and the duration of pain subjectively experienced by a victim.” State v. Long, 

, 

 (2017) (citations and internal quotation marks omitted). With respect to degree, “ ‘substantial
pain’ must be ‘considerable’ or ‘ample’ and cannot be ‘inconsequential.’ ” Colpo, 

. And with respect to
duration, “ ‘substantial pain’ cannot be ‘fleeting’ and must
be more than ‘momentary.’ ” 

         Although “each case presenting a question of evidentiary sufficiency must necessarily turn on its own
record,” State v. Borden, 

, 

Cite as 

 (2021)                            769

(2020), our case law addressing “substantial pain,” to which
we now turn, provides helpful context for our analysis. That
case law has defined the limits of “substantial pain” “primarily by describing what ‘substantial pain’ is not.” State
v. Guzman, 

, 

 (2016); see
also Long, 

 (insufficient evidence
of substantial pain where “slight swelling” on the victim’s
cheek and “several small scratches or bruises” were not visible the next day, and the victim “squarely den[ied] that she
experienced any pain”); State v. Lewis, 

, 529-
30, 

 (2014) (insufficient evidence of substantial
pain where the victim, whose hair was pulled out by the
defendant, did not testify that she felt pain, and there were
no physical signs from which it could be inferred that she
had suffered substantial pain); State v. Rennells, 

, 

 (2012), rev den, 

(2013) (evidence insufficient to show substantial pain where
the victim “experienced bruising on her legs that lasted
several days,” and when asked by the prosecutor whether it
hurt when the defendant kicked her, the victim answered,
“No, I was kicking him.”). But see State ex rel Juv. Dept. v.
Greenwood, 

, 

 (1991) (sufficient evidence of substantial pain where the victim’s headache lasted approximately one hour after being hit on the
head with an umbrella); State ex rel Juv. Dept. v. Salmon,

, 

 (1986) (sufficient evidence of substantial pain where the victim “endured more
than momentary pain” when blow to victim’s face caused
“redness and swelling in the eye area” that lasted a day and
a half, and “bruising occurred on the third day”).
         We have also observed that, “in many of our ‘substantial pain’ cases, the victim has not testified as to the
duration or degree of the pain …; has provided neutral
testimony; or has, in fact, provided direct evidence that the
pain was not severe or prolonged.” Guzman, 

. In such cases, “the set of reasonable inferences that
may be derived from the evidence is determinative as to
whether the issue is submitted to the trier of fact.” 

 The
court’s role, then, is to determine the “sometimes faint line
between inferences that are reasonable and those that are
too speculative.” 

 (internal quotation marks omitted).
770                                           State v. Sanchez

         For example, in Guzman, the victim did not testify, yet we determined that, “despite the absence of the
victim’s testimony, there is evidence from which a rational
juror could infer that the victim suffered substantial pain.”

 (evidence was sufficient to infer substantial
pain where photographs showed “bright red scratches” on
the victim’s chin and cheeks and “facial swelling”; the victim
stated to the 9-1-1 dispatcher that the “defendant ‘push[ed]’
her in the car and ‘wouldn’t let [her] go’ ”; and witness testimony verified the presence of red marks or scratches on the
victim’s face).
          Similarly, in Miller, we concluded that there was
evidence “sufficient to support a reasonable inference of substantial pain,” despite the victim’s neutral testimony that
“she did not remember” how painful the blow to her face
felt, stating “you forget, like, quickly” an injury involving “a
momentary sort of pain.” 

 (evidence
was sufficient to infer substantial pain where photographs
depicted “bruising around [the victim’s] eyes and nose and a
cut above her right eye”; a witness testified that the victim
“told the grand jury that defendant ‘punched’ her between
the eyes with closed fists, knocked her down, and punched
her again causing bleeding”; and the victim’s facial bruising
“lasted for about a month”).
         Most recently, in State v. Soto-Martinez, 

, 

 (2021), we concluded that the evidence
was sufficient for “a reasonable juror [to] reasonably infer
that the victim experienced substantial pain,” despite the
victim’s testimony that he had “not really” experienced pain
after the defendant had struck him in the face. 

 (evidence
was sufficient to infer substantial pain where the “[d]efendant, an adult man, punched the victim in the face multiple
times” using a “closed fist,” and photographs of the victim
showed “visible swelling and bruising around his eyes” and
“a bloodshot eye”).
         Here, P did not (and could not) testify as to her experience of pain. Yet as our case law illustrates, the absence of
victim testimony does not foreclose a finding of substantial
pain where, as here, other evidence allows a nonspeculative
inference of substantial pain. Thus, we conclude that, despite
Cite as 

 (2021)                              771

the absence of P’s testimony, the evidence in this case—
viewed in the light most favorable to the state—supports a
reasonable inference that P suffered substantial pain.
         That evidence includes the testimony from multiple
witnesses that defendant, an adult male, “popped,” “bopped,”
“slapped,” or otherwise struck P, an 86-year-old woman, in
the side of her face with his “open fist.” It also includes the
testimony that P had bruising covering “the entire right side
of her face”; the photographs from Davey and Schroeder,
which—like the photographs in Guzman, Miller, and Soto-Martinez—depicted the victim’s facial injury, including the
“significant,” dark-colored bruising covering most of P’s
right cheek and portions of her mouth and chin; and the
testimony from P’s Home Health nurse, Kimball, that P’s
facial injury was still present at least two and one-half
weeks after defendant struck P in the face—much like the
persistent bruising in Miller.
         It is reasonable to infer from that evidence that
when defendant’s “open fist” collided with P’s face—which
resulted in “significant,” dark-colored bruising to P’s face, an
injury still visible two and one-half weeks later—P thereby
suffered pain that was more than inconsequential and fleeting. Put differently, we cannot say that, based on that evidence, no rational trier of fact could reasonably infer that
P suffered substantial pain. Consequently, the trial court
did not err in denying defendant’s MJOA.
        Affirmed.
        AOYAGI, J., dissenting.
         When the propriety of sending a criminal charge
to the jury turns on whether the evidence allows a reasonable inference of a fact necessary to find guilt, we must
“determine—as a matter of law—where the sometimes faint
line must be drawn between those inferences that are reasonable and those that are too speculative.” State v. Guzman,

, 

 (2016) (internal quotation
marks omitted). Ultimately, a charge should not go to the
jury if a necessary finding depends on “guesswork” or “the
stacking of inferences to the point of speculation.” State v.
Bivins, 

, 

 (2004).
772                                           State v. Sanchez

          In this case, the only evidence relevant to the “substantial pain” issue is that defendant admitted to “bopping”
his elderly mother, P, on the face, once, with a “small open
fist,” to get her attention while trying to feed her, and that
P subsequently had a large bruise on the side of her face that
remained visible for several weeks. There were no witnesses
to the incident. There is no other evidence as to the nature
of the strike. There is no evidence of P’s reaction. The photographs in the record show a bruise that is large but not mottled or especially dark. Meanwhile, there is uncontested evidence from which it is reasonable to infer that P was more
prone to bruising than the average person—she was 87 years
old, was taking a blood thinner, had “papery” skin, and had
poor nutrition that made her “prone to pressure wounds.” As
relevant to her subjective experience of pain, there is also
evidence that P suffered from severe dementia and, in the
time period immediately after the “bopping” incident, was
“nonresponsive” to words and touch during visits by a police
officer and an Adult Protective Services worker.
          On this record, in my view, the state’s evidence falls
on the side of speculation, not reasonable inference, as to
whether P suffered “substantial pain” in connection with the
event that caused the bruise on her face. “[W]hen the victim
does not provide direct evidence of his or her subjective experience of the degree and duration of the pain, as in this case,
a trial court ruling on an MJOA 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.” Guzman, 

. Jurors may rely on “ordinary experience” to
draw reasonable inferences. Fugate v. Safeway Stores, Inc.,

, 

 (1995). There is a point,
however, at which “the factfinder’s common knowledge [cannot] bear the weight” that it would have to bear to support a
conviction. State v. Hedgpeth, 

, 

 (2018), aff’d, 

, 

 (2019). I view
this as such a case. Accordingly, I would conclude that it was
error to deny defendant’s motion for judgment of acquittal
on the fourth-degree assault charge.
          Each of the cases cited by the majority in which we
have held evidence legally sufficient to establish “substantial
Cite as 

 (2021)                              773

pain” involved significant facts not present here, such as evidence of repeated blows, multiple injuries, the victim’s reaction, or the victim’s express assertion of pain. See State v.
Soto-Martinez, 

, 

 (2021) (evidence sufficient to infer substantial pain, where the defendant repeatedly punched his brother in the face with closed
fists while angry, causing swelling and bruising around both
eyes and a bloodshot eye, and prompting the victim to call
out for help and a 9-1-1 call); State v. Miller, 

, 

 (2021) (victim was punched between the
eyes with closed fists, knocked down, and punched again,
causing two black eyes that lasted a month and a facial laceration that bled); Guzman, 

 (victim
was panicked and crying hysterically and had scratches and
welts on her face and arms; some swelling on both cheeks,
around her eyes, and on the left side of her forehead; and
more pronounced swelling on the right side of her forehead);
State ex rel Juv. Dept. v. Greenwood, 

,

 (1991) (victim experienced “headache or pain” for
an hour after being struck on the head with an umbrella);
State ex rel Juv. Dept. v. Salmon, 

, 

 (1986) (victim testified that it hurt when she was
struck in the face with a relish container, and she experienced redness, swelling, and bruising).
         I am aware of no prior case in which we have held
a single strike and a resulting bruise to be legally sufficient evidence, on its own, to establish “substantial pain” for
purposes of the “physical injury” element of fourth-degree
assault. The size and duration of P’s bruise might allow an
inference of some pain but does not, on its own, allow an
inference of “substantial pain.” Cf. State v. Lewis, 

, 

 (2014) (“Based on the evidence in this case, even if a trier of fact could infer that the
hair-pulling caused the victim some pain, there is no evidence in the record that the degree or duration of the pain
was sufficient to constitute ‘substantial pain’—that is, there
is no other evidence of the degree of the pain or that it was
anything more than a fleeting sensation.” (Emphasis in original; internal quotation marks and alterations omitted.));
State v. Rennells, 

, 

 (2012),
rev den, 

 (2013) (“[A]lthough the evidence—a
774                                        State v. Sanchez

bruise lasting several days—may be sufficient to infer that
the victim suffered some pain as a consequence of the kicking incident, it is not sufficient to infer that she suffered
substantial pain.” (Emphasis in original.)).
        I respectfully dissent.