State v. Brown

                                   808

 Submitted December 3, 2021, affirmed January 5, petition for review denied
                        May 5, 2022 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                DAVID MICHAEL BROWN,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                     17CR74637; A173208
                               

  Gregory F. Silver, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc Brown, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2022)                            809

        PER CURIAM
         Defendant appeals after he was found guilty in a
bench trial of second-degree assault on the theory that he
aided and abetted his codefendant in causing serious physical injury to the victim “by means of a dangerous weapon,
to wit, a shoe.” See ORS 161.015(1) (defining “dangerous
weapon” to mean “any weapon, device, instrument, material or substance which under the circumstances in which
it is used, attempted to be used or threatened to be used, is
readily capable of causing death or serious physical injury”).
Relying on our decision in State v. Werder, 

, 

 (1992), defendant argues that “the state
was required to prove beyond a reasonable doubt that ordinarily harmless footwear was used in a way that rendered it
capable of causing ‘serious physical injury.’ ” And, according
to defendant, the record is legally insufficient to support a
finding that his codefendant’s shoe was used in such a way,
let alone to support a finding that defendant knew the shoe
was a dangerous weapon and intended for his codefendant
to use the shoe to seriously injure the victim. We disagree
with defendant, conclude that the state presented sufficient
evidence for the trial court to make those findings, and
therefore affirm.
         In reviewing defendant’s preserved challenge to the
sufficiency of the evidence to support his conviction, we
view the evidence in the light most favorable to the state
to determine whether a rational trier of fact, making reasonable inferences, could find the essential elements of the
crime beyond a reasonable doubt. State v. Hedgpeth, 

, 

 (2019); State v. Gonzalez-Valenzuela,

, 454 n 1, 

 (2015) (agreeing “with
the long-standing case law from the Court of Appeals that,
under the circumstances [of a bench trial], defendant’s closing argument was the equivalent of a motion for judgment of
acquittal and, therefore, preserved the issue that defendant
presents”).
         A detailed recitation of the facts would not benefit
the bench, bar, or public. In short, the state presented evidence that defendant and another assailant were holding
the victim down during an assault in which his codefendant
810                                                State v. Brown

stomped more than once on the victim’s head; that the shoe
(which was introduced into evidence) had a flat, broad sole
made of hard rubber, with a “pretty firm edged sole”; that
the autopsy of the victim, who had been fatally shot during
the assault, revealed patterns on the left cheek, eye, and
right side of the forehead that were consistent with being
caused by the tread from a shoe; that multiple stomps was
“the most likely mechanism” of injury; and that people
stomp with greater force and more confidently when wearing shoes as compared to bare feet. The record also included
testimony from defendant’s expert, a biomechanical engineer, who testified that a “bare foot would also cause sufficient forces to cause injury and possible death,” and “that
the forces generated during a stomp are independent of shoe
wear, gender, and fitness of the stomper.” However, defendant’s expert declined to opine on the mentality of having
a shoe on and whether a person might stomp harder when
wearing a shoe.
         Based on the evidence of the nature of the shoe,
the intensity of the stomping, and defendant’s role in the
assault, a reasonable trier of fact could infer not only that
his codefendant’s shoe was capable of causing serious physical injury when used to stomp the victim’s head, but also
that defendant knew that and intended that very use of the
shoe as part of the assault. As a witness testified, and the
trial court noted, there is a common sense aspect to the role
that a shoe can play when stomping: If there is a pile of glass
on the ground, a person with a shoe is more confident and
can strike harder because of the protection and surface it
provides in comparison to a bare foot. Thus, we agree with
the trial court’s rationale:
   “Under the circumstances in which it was used in this case,
   to repeatedly stomp on someone’s face while their head is
   down on the ground, the shoe was readily capable of causing serious physical injury. That injury … is qualitatively
   different than an injury which would be caused by stomping on someone’s face in bare feet.”

        The evidence of the use for stomping and about the
nature of the shoe in this case make it readily distinguishable from Werder, as the trial court correctly recognized.
Cite as 

 (2022)                             811

In Werder, we explained that the state had presented no
evidence about the shoe or the way in which the shoe was
used to kick the victim: There was “no tennis shoe … in
evidence,” “no photograph of a tennis shoe in evidence,” “no
description of a tennis shoe in evidence,” “no medical evidence that says that injuries that [the victim] suffered were
caused by a tennis shoe,” and “[n]o witness testified that
defendant’s aggressive use of his tennis shoed feet could
have resulted in an injury that differed in any way from
that which would be inflicted by his unclad feet.” 

 (internal quotation marks omitted). Here, the record
is nearly the exact opposite. The shoe and descriptions of the
shoe were in evidence; there was medical evidence tying the
injuries to the use of the shoe; and there was evidence about
the intensity of the stomping and, generally, how stomping
in shoes is different from stomping in bare feet.
        On this record, the trial court did not err in concluding that the evidence was sufficient to find that the shoe
was a dangerous weapon, that defendant knew that, and
that defendant intended his codefendant to use the shoe
in that way as defendant and another assailant took turns
holding the victim down. See State v. Bell, 

, 

, rev den, 

 (1989) (“Although cowboy boots are not dangerous weapons per se, defendant converted them into dangerous weapons within the meaning
of ORS 161.015(1) when he used them to kick a resisting
robbery victim in the upper body while she was lying on the
ground.”).
        Affirmed.