State v. Kinsey
State v. Kinsey
Opinion of the Court
*209In this consolidated appeal, defendant appeals a judgment of conviction for second-degree assault, ORS 163.175, and menacing, ORS 163.190. Defendant was sentenced to 70 months' incarceration for second-degree assault pursuant to ORS 137.700. On appeal, defendant assigns error to the trial court's determination that the victim of the assault suffered a "significant physical injury" under ORS 137.712(2)(b)(B), making him ineligible for a lesser sentence under ORS 137.712(1). As explained below, we conclude that the evidence in the record-which includes evidence of a scar on the victim's scalp that was visible to the trier of fact over six months after the assault-is legally sufficient to support the trial court's determination that the *675victim suffered a significant physical injury under ORS 137.712 (2)(b)(B) as a result of the assault. Accordingly, we affirm.
" 'We review a claim that the sentencing court failed to comply with the requirements of law in imposing a sentence for errors of law.' " State v. Brewer ,
On or about July 20, 2015, defendant, after pointing a gun at the victim's head, pistol-whipped the victim, hitting him in the head three times. An ambulance then transported the victim to the hospital for medical treatment. The victim's medical records reflect that he had a "2 inch full-thickness laceration on the left side of his head." The laceration was closed using five staples, which were removed eight days later. The victim's neighbor testified that, the day after the assault, the victim's head looked "really swollen, and misshapen."
Defendant was indicted for two counts of first-degree assault, one count of unlawful use of a weapon with a firearm, and one count of unlawful use of a weapon. Defendant *210waived his right to a jury trial and his case was tried to the court.
During the course of defendant's trial, on February 16, 2016-over six months after defendant committed the assault-the victim testified that, as a result of the staples, he has a scar on his head, which is visible when he cuts his hair.
The trial court found defendant guilty of two counts of second-degree assault and one count of unlawful use of a weapon, which it merged into a single count of second-degree assault. It also found defendant guilty of menacing.
A conviction of second-degree assault requires a minimum sentence of 70 months' imprisonment pursuant to ORS 137.700(2)(a)(G), unless a defendant is eligible for a downward departure sentence under ORS 137.712(1). At his sentencing hearing, defendant argued that he was eligible for a downward departure sentence under ORS 137.712, which provides, in pertinent part:
"(1)(a) Notwithstanding ORS 137.700 ***, when a person is convicted of *** assault in the second degree as defined in ORS 163.175(1)(b), *** the court may impose a sentence according to the rules of the Oregon Criminal Justice Commission that is less than the minimum sentence that otherwise may be required by ORS 137.700 *** if the court, on the record at sentencing, makes the findings set forth in subsection (2) of this section and finds that a substantial and compelling reason under the rules of the Oregon Criminal Justice Commission justifies the lesser sentence. ***
"* * * * *
*211"(2) A conviction is subject to subsection (1) of this section only if the sentencing court finds on the record by a preponderance of the evidence:
"* * * * *
"(b) If the conviction is for assault in the second degree:
"(A) That the victim was not physically injured by means of a deadly weapon;
"(B) That the victim did not suffer a significant physical injury; and *676"(C) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section."
The state conceded during defendant's sentencing hearing that the victim was not physically injured by means of a deadly weapon, ORS 137.712(2)(b)(A), and that defendant's prior convictions did not disqualify him from a downward departure sentence, ORS 137.712(2)(b)(C). Thus, the only issue at the sentencing hearing with respect to defendant's eligibility for a downward departure sentence under ORS 137.712(1) -apart from whether a substantial and compelling reason under the rules of the Oregon Criminal Justice Commission justified a downward departure-was whether defendant was ineligible for a downward departure because the victim suffered a "significant physical injury," ORS 137.712(2)(b)(B). That term is defined in ORS 137.712(6)(c) as an injury that:
"(A) Creates a risk of death that is not a remote risk;
"(B) Causes a serious and temporary disfigurement;
"(C) Causes a protracted disfigurement; or
"(D) Causes a prolonged impairment of health or the function of any bodily organ."
After hearing argument, the trial court found that defendant was ineligible for a departure sentence under ORS 137.712 because the victim suffered a significant physical injury:
"[I]t was more than physical injury to me. I think that it was a substantial injury, and that it's going to last him for a long time. But I see serious physical injury as more of a *212permanent kind of injury, and I think that this is something that [the victim] is going to get over, but it's more than just physical injury. So I would find under the law, that it is a significant injury."
The trial court did not explain on which of ORS 137.712 (6)(c)(A), (B), (C), or (D) it premised its decision.
As noted above, defendant assigns error to the trial court's determination that he was ineligible for a departure sentence under ORS 137.712 because the victim suffered a "significant physical injury." More specifically, on appeal, defendant argues, among other points, that "the evidence does not support a finding that the injury" caused a "protracted disfigurement" because "there is no evidence as to how visible the [victim's] scar was other than that the victim could see it when he cut his hair short" and "the record does not establish that the [victim's] scar will be permanent or continue to persist for a significant period of time."
We have not yet interpreted the phrase "protracted disfigurement" as used in ORS 137.712(6)(c)(C). We have, however, held that a scar on the scalp, visible five months after an assault, is a "serious and protracted disfigurement" under ORS 161.015(8). State v. Alvarez ,
"[S]erious and protracted disfigurement," as used in ORS 161.015(8), requires more than "protracted disfigurement," as used in ORS 137.712(6)(c)(C). Guided by our holding in Alvarez , we first conclude that the record in this case is legally sufficient to support a determination that the victim suffered a "disfigurement," as that term is used in ORS 137.712(6)(c)(C). Cf. State v. Cloutier ,
Furthermore, in accordance with our holding in Alvarez , we conclude that the record in this case is legally sufficient to support a determination that the victim's disfigurement was "protracted," as that term is used in ORS 137.712(6)(c)(C). The victim's scar was visible more than six months after the assault occurred. Cf. Alvarez ,
Because the record is legally sufficient to support a determination that the victim suffered a "protracted disfigurement," ORS 137.712(6)(c)(C), it is legally sufficient to support a determination that the victim suffered a "significant physical injury," ORS 137.712(2)(b)(B). Thus, the trial court did not err in concluding that defendant was ineligible for a downward departure sentence under ORS 137.712(1).
Defendant is correct that the record on appeal does not reveal "how visible" the scar was during defendant's trial. But it was defendant's burden to prove that the scar was not a "protracted disfigurement," which he failed to do. See Brewer ,
Affirmed.
Although this is a consolidated appeal, defendant does not assign error to any rulings in Multnomah County Case Number 15CR31262.
The victim also testified that he experienced dizziness and vision problems in one eye after the assault. Because we conclude that the scar on the victim's scalp is legally sufficient to support the trial court's determination that the victim suffered a significant physical injury, we need not consider the victim's other conditions.
Defendant argues that the record merely reflects that "the victim tried to show the judge that he still had a scar on his scalp." That contention is at odds with his defense counsel's acknowledgement during defendant's sentencing hearing that the victim did, in fact, show the trial court the scar.
Defendant also argues that the record contains insufficient evidence that the injury the victim suffered created a risk of death that was not a remote risk, ORS 137.712(6)(c)(A), caused a serious and temporary disfigurement, ORS 137.712(6)(c)(B), and caused a prolonged impairment of health or the function of any bodily organ, ORS 137.712(6)(c)(D). Because we conclude that there is legally sufficient evidence to support a determination that the victim suffered a protracted disfigurement, and, accordingly, suffered a significant physical injury, we need not consider those arguments.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.