State v. Yerton

                                      538

   Argued and submitted December 4, 2020; conviction on Count 1 reversed,
      remanded for resentencing, otherwise affirmed February 16, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                      MELISSA YERTON,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR54538; A171842
                                   

     Defendant placed her hands on her son’s neck, leaving visible marks. For that
conduct, she was convicted in a bench trial of first-degree criminal mistreatment
(Count 1), ORS 163.205, and strangulation (Count 2), ORS 163.187. On appeal,
she assigns error to the denial of her motion for judgment of acquittal on Count 1,
contending that there is insufficient evidence to permit a finding that she caused
“physical injury” to her son within the meaning of ORS 163.205. Held: The record
in this case would require guesswork to conclude that defendant’s act of putting
her hands around her son’s throat had the effect of impeding his ability to breathe
for even a brief period of time, amounting to physical injury under ORS 163.205.
     Conviction on Count 1 reversed; remanded for resentencing; otherwise
affirmed.



    Theodore E. Sims, Judge.
  George W. Kelly argued the cause and filed the brief for
appellant.
   Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Tookey, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.*
    LAGESEN, C. J.
   Conviction on Count 1 reversed; remanded for resentencing; otherwise affirmed.

______________
   * Lagesen, C. J., vice Armstrong, S. J.
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        LAGESEN, C. J.
         Angry at her 11-year-old son, J, defendant placed
her hands on his neck, leaving visible marks. For that conduct, she was convicted in a bench trial of first-degree criminal mistreatment (Count 1), ORS 163.205, and strangulation
(Count 2), ORS 163.187. On appeal, she assigns error to the
denial of her motion for judgment of acquittal on Count 1,
contending that there is insufficient evidence to permit a
finding that she caused “physical injury” to her son within
the meaning of ORS 163.205. We agree and, therefore,
reverse defendant’s conviction on Count 1.
         We review a trial court’s denial of a motion for a
judgment of acquittal for legal error, and we consider the
facts in the light most favorable to the state and draw all
reasonable inferences in the state’s favor. State v. Dillard,

, 

 (2021). The question is
whether the evidence is sufficient to permit a rational factfinder to find all the elements of the charged crime beyond
a reasonable doubt. State v. Casey, 

, 

 (2009). We state the facts underlying defendant’s
conviction in accordance with our standard of review.
         In May 2018, J’s teacher observed scratches and
bruises on J’s neck at school and reported the injury to the
Department of Human Services (DHS). When a detective
met with J the next day to investigate the teacher’s concerns, he noticed an “abrasion on his neck.” In response to
the detective’s question whether defendant caused the bruising, J “became very quiet, sank his head down,” and admitted that defendant had caused the bruising. J reported that
defendant injured him when she woke him up by tickling
him. The detective was skeptical of that version of events
because J’s injury “appeared to be from … blood vessels
being popped underneath the skin due to pressure.” The
detective then interviewed defendant, who told him that the
incident had occurred two days prior.
         That same day, J underwent a medical and forensic interview. In that interview, J gave an account different from what he had told the detective. J stated that his
mother accidently scratched him with her nail because she
was angry that he would not clean his room. He told the
540                                            State v. Yerton

examiner that he “didn’t even feel it and it doesn’t hurt.”
He showed how defendant put her hand on his neck. When
asked how his breathing was affected, he demonstrated by
breathing heavily, saying that he breathed like that because
he “was scared.” When the examiner asked about his inconsistent stories about how he got the mark on his neck, J
replied, “I didn’t want my mom getting in trouble where—
ah, where I had to go to foster care.”
        The doctor who conducted the medical examination
also documented J’s injuries. He determined that the marks
on J’s neck were “petechial bruises” because blood vessels
burst and formed a “constellation of bruising,” and that the
bruising was a result of force from hands grabbing J’s neck.
When the doctor palpated the bruising and asked J if there
was pain, J said no.
         The state charged defendant with one count of first-degree criminal mistreatment, and one count of strangulation. Defendant elected to waive her right to a jury trial, and
the case was tried to the court. On the charge of criminal
mistreatment, the state’s theory was that defendant caused
“physical injury” to J within the meaning of ORS 163.205 by
impeding his ability to breathe.
         At trial, J testified that the defendant accidently
scratched him and demonstrated in court that she had her
“index finger and thumb on each side of [his] throat.” The
detective who initially investigated J’s injury, the doctor
who examined him, and the examiner who interviewed J
recounted J’s statements to them and the results of J’s physical examination.
          J’s father also testified. On direct examination, he
stated that J had reported to him that defendant “put her
hands around [the child’s] throat and choked him because
he would not clean his room.” On cross-examination, however, J’s father clarified that J had not described defendant
as choking him, stating that J “didn’t use the word choke.”
Rather, J had said that defendant had “squeezed [his] neck”
and that J “couldn’t breathe.” At that point, defendant
raised a hearsay objection to the statements that defendant
had squeezed J’s neck and that J could not breathe, and the
trial court sustained the objection. (On appeal, the parties
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dispute whether the trial court excluded both the statement
about defendant squeezing J’s neck and the statement that
J could not breathe. We think it clear from the transcript
that the trial court excluded both statements.)
         After the state rested, defendant moved for a judgment of acquittal on the charge of first-degree criminal mistreatment on the grounds that the evidence was insufficient
for “a rational finder of fact [to] find beyond all reasonable
doubt that she impaired [the child’s] physical condition.” The
trial court denied the motion. At the conclusion of trial, the
court found defendant guilty as charged on both counts. On
the charge of criminal mistreatment, the court found that
defendant caused the physical injury to the child by “applying force to rupture subsurface blood vessels,” and that the
state “proved beyond a reasonable doubt that there was a
physical injury” because “[the child] couldn’t breathe properly while his mother’s hand was around his—his throat.”
Defendant appealed.
         On appeal, the issue before us, as framed by the
parties’ arguments, is narrow: whether the evidence is
legally sufficient to support a finding that defendant caused
physical injury to J within the meaning of ORS 163.205 by
impairing his breathing, as the trial court found. A person
commits first-degree criminal mistreatment in violation of
ORS 163.205(1)(b), by violating “a legal duty to provide care
for a dependent person or elderly person, … [by] intentionally or knowingly … [c]aus[ing] physical injury or injuries
to the dependent person or elderly person.” ORS 161.015(7)
then defines “physical injury” as “impairment of physical
condition or substantial pain.” In this case, the parties agree
that there is not sufficient evidence to find that defendant
caused J to suffer substantial pain within the meaning of
ORS 161.015(7). As a result, the only question is whether the
evidence admitted at trial allows for the reasonable inference that defendant caused J to suffer an “impairment of
physical condition.” We conclude that, under our case law,
the answer is no.
         In State v. Higgins, 

, 

 (2000), we construed “impairment of physical condition” to mean “harm to the body that results in a reduction
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in one’s ability to use the body or a bodily organ for less than
a protracted period of time.” In State v. Hendricks, 

, 

 (2015), rev den, 

 (2016),
we clarified that, to be a qualifying impairment, “(1) The
impairment must be material, and not merely de minimis;
and (2) materiality is a function of a variety of case-specific
circumstances, including the character, degree, and duration of the asserted impairment.”
         Applying that standard, we have concluded that a
swollen and bloody lip with facial bruises impairs the use of a
body part, the mouth, resulting in a qualifying impairment.
Higgins, 

. Similarly, we have concluded
that swelling around the eye qualified when it impaired the
use of the victim’s eye. 

 However, a cut on the face that
caused no pain and was “not noticeable after two or three
days” did not meet the standard, nor did an assault that
left no bruises or other evidence of injury, because of the
absence of evidence that the victim’s ability to use his body
was reduced. 

.
         Following Higgins, we have concluded that a large
cut or heavy scrape is a qualifying impairment because
such an injury disrupts the skin’s function of keeping infection out of the body. State v. Hart, 

, 

 (2008); State v. Jones, 

, 

, rev den, 

 (2009). We have concluded that
preventing a person from breathing for up to five seconds is
a qualifying impairment. Hendricks, 

. We
have also concluded that evidence of a brief reduction in the
ability to breathe, combined with evidence that the victim’s
neck was puffy and red the next day was sufficient to allow
a finding of impairment. State v. Merrill, 

, 

 (2020), adh’d to as modified on recons,

, 

, rev den, 

 (2021). In
contrast, evidence of bruises from a spanking was insufficient to allow for a finding of impairment. State v. Wright,

, 

 (2012).
         Merrill and Wright appear to be the most comparable cases to the present one. In Merrill, we concluded that
evidence was sufficient to show a reduction in the victim’s
ability to breathe where it demonstrated that the defendant
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completely prevented the victim from being able to breathe
for a brief period, and also left marks that were visible for
some time. We explained that evidence that the victim was
prevented from breathing, together with “evidence of marks
visible for some significant period after the incident is sufficient for a rational trier of fact to conclude that a material, non-de minimis, physical injury occurred.” Merrill,

. In Wright, we concluded that bruises
resulting from a spanking were inadequate to support a
finding of impairment, where “the skin did not break, which
is evidence from which a jury can infer impairment of the
skin’s ability to ward off infection[.]” 

.
Accordingly, we concluded that “small capillary blood vessels [ ] suddenly pop[ping] and leak[ing] out their blood,” i.e.,
bruising, does not rise to the level of disrupting the skin’s or
any other bodily organ’s function, and thus the bruising in
that case did not constitute impairment of a physical condition. 

.
           In this case, the evidence of impairment is more in
line with what we deemed insufficient in Wright than it is
with the evidence that we deemed sufficient in Merrill. The
evidence of impairment of physical condition in this case
includes the following: (1) bruising that was visible two days
after the incident; (2) J’s statement and demonstration that
he was breathing fast during the incident, saying that he
breathed like that because he “was scared”; (3) J’s multiple
statements that he experienced no pain; (4) the doctor’s testimony that the bruising was consistent with the force of a
hand applied to the child’s neck; and (5) J’s father’s laterqualified testimony that J reported defendant had put her
hands around his neck and choked him. Under Wright, the
evidence of the marks alone does not allow for a reasonable
finding of impairment. Further, what is missing from that
evidence, and what makes this case unlike Merrill, is the
absence of evidence that defendant’s conduct reduced J’s
ability to breathe. Although J’s testimony that he breathed
faster would allow the inference that defendant’s conduct
affected his breathing, it does not allow for the reasonable
inference that his ability to breathe was reduced.
           Beyond that, there is no evidence to allow for the
inference that pressure strong enough to leave marks on
544                                             State v. Yerton

someone’s neck is pressure that is likely to impede the ability
to breathe as well. The only direct evidence that defendant’s
conduct prevented J from breathing—J’s father’s testimony
that J had told him he could not breathe—was excluded as
hearsay and, for that reason, cannot be used to sustain the
verdict. To the extent that J’s father’s subsequently qualified testimony that J reported that defendant had put her
hands around his neck and “choked” him bears on the question, without some additional indication about how defendant’s conduct affected his breathing, it does not allow the
inference that J’s breathing was impaired because, on this
record, it is speculative whether J was describing defendant’s conduct—what she was doing with her hands around
his neck—or describing the effect of that conduct on his own
breathing. In other words, on the particular record in this
case, it requires guesswork to conclude that defendant’s
act of putting her hands around J’s throat had the effect
of impeding his ability to breathe for even a brief period of
time.
         Taking a slightly different approach, the state points
out that it is undisputed that the evidence is sufficient to support defendant’s conviction for strangulation and appears to
argue that both Hendricks and Merrill stand for the proposition that, as a matter of law, evidence sufficient to establish strangulation is sufficient to establish physical injury
for purposes of ORS 163.205(1)(b)(A). That argument, to the
extent the state is making it, rests on a misapprehension
of those cases. In both cases, we explained that evidence
sufficient to support a conviction for strangulation may not
always demonstrate any impairment of physical function
or other form of physical injury. We explained that strangulation requires evidence that a defendant “engag[ed] in a
specific means (applying pressure on the throat or neck or
blocking the nose or mouth) toward a specific end (impeding normal breathing or circulation)”; that is, proof that the
defendant intended to impede breathing or air circulation,
even if the defendant did not achieve impairment, is sufficient. Hendricks, 

. The element of physical
injury, on the other hand, requires evidence of a particular result, for example, impairment of bodily function. 

Consequently, “[s]trangulation may give rise to ‘physical
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injury,’ ” but does not necessarily result in it in every case.
Merrill, 

 (emphasis added). For that reason, to the extent the state’s argument hinges on the mere
fact that defendant was convicted of strangulation, it fails.
         For those reasons, we conclude that the evidence
is insufficient to support a finding that defendant’s conduct
impaired J’s breathing and, for that reason, insufficient to
support the physical injury element of the crime of first-degree criminal mistreatment. We therefore reverse defendant’s conviction on Count 1.
        Conviction on Count 1 reversed; remanded for
resentencing; otherwise affirmed.