[DV_listserv] Good Cases

[Domestic Violence issues]

(From the DOJ's Appellate Division case summary)

ASSAULT-PHYSICAL INJURY: Evidence that defendant smothered the victim with
a pillow for five seconds, during which she could not breathe and feared for her
survival, supported a conviction for fourth-degree assault, ORS 163.160(1).
COERCION: The evidence was insufficient to prove coercion, ORS 163.275(1)(a),
because it failed to prove that defendant had the requisite intent and that his
conduct in fact compelled the victim to abstain from any conduct that she was
legally entitled to engage.
SENTENCING-MERGER: The sentencing court correctly declined to merge the
assault conviction based on defendant's smothering of the victim into the conviction
for strangulation, because each crime contains different mental state and result
elements, ORS 161.067(1).
State v. Hendricks, 273 Or App 1, __ P3d __ (2015) (Lane) (AAG Karla Ferrall).
During a domestic assault, while he was intoxicated, defendant struck the victim
repeatedly with his fists and smothered her with a pillow for five seconds. He was
charged with, among other offenses, three counts of fourth-degree assault
(ORS 163.160), strangulation (ORS 163.187), and coercion (ORS 163.275(1)(a)). At
trial, he moved for a judgment of acquittal on one assault charge based on the smothering
and the coercion charge. The trial court (Judge Suzanne Chanti) denied those motions.
The coercion charge went to the jury on a theory that defendant had compelled the victim
"to abstain from engaging in conduct that [she] had a legal right to engage in." The jury
found defendant guilty on those charges. At sentencing, the court denied defendant's
request to merge the assault conviction based on the smothering into the strangulation
conviction.
Held: Conviction for coercion reversed; remanded for resentencing; otherwise
affirmed (Haselton, C.J.) [1] The trial court correctly denied defendant's motion for
judgment of acquittal on the assault charge based on the smothering, because the
evidence sufficiently established that the victim suffered "physical injury." The
smothering caused her to be completely unable to breathe for a sufficient period that she
feared for her survival, and a reasonable juror could find that the duration of the conduct
was sufficient to materially impair her bodily function. [2] The trial court erred when it
denied his motion for judgment of acquittal on the coercion count, because the evidence
failed to prove that he had the requisite intent or that his conduct in fact compelled the
victim to abstain from any conduct that she was legally entitled to engage. [3] The
sentencing court correctly declined to merge the assault conviction based on the
smothering into the conviction for strangulation, because each crime contains different
mental-state and result elements, ORS 161.067(1). Moreover, defendant did not develop
an argument that the physical-injury element of assault charge necessarily encompassed
the result element of strangulation.
http://www.publications.ojd.state.or.us/docs/A148546.pdf
_______________________________________________________________________________
KIDNAPPING: Defendant confined victim in a place where she was "not likely to
be found," despite the presences of others, because he took steps to ensure that she
was unlikely to be found by anyone who could reasonably be expected to help her.
SEXUAL OFFENSES-SUFFICIENCY OF EVIDENCE (FORCIBLE COMPULSION):
Extended physical and sexual assault of victim allowed jury to find causal
connection between physical assault and sexual penetration.
State v. Kawamoto, 273 Or App 241, __ P3d __ (2015) (Multnomah)
(AAG Rebecca Auten). Defendant held the victim in a bedroom at his home for
approximately two days, during which time he severely beat her and committed a series
of violent sex acts against her, including penetrating her anus with a baseball bat.
Defendant was charged with first-degree kidnapping, ORS 163.235(1), and unlawful
sexual penetration, ORS 163.411(1)(a), among other offenses. At trial, he moved for
judgment of acquittal of both charges. As to kidnapping, defendant argued that he had
not confined the victim in a place where she was "not likely to be found," because two of
his friends knew where she was. As to unlawful sexual penetration, he argued that the
state had failed to prove a sufficient causal connection between his physical violence and
the act of penetration. The trial court (Judge Stephen K. Bushong) denied the motion,
and a jury found defendant guilty.
Held: Affirmed (Garrett, J.). The trial court correctly denied defendant's motion
for judgment of acquittal [1] "The text and context make it clear that the purpose of the
[kidnapping] statute is to prohibit the confinement of a person in a place where she is not
likely to be found by those who could reasonably be expected to assist her. ...
Defendant's actions demonstrated a 'calculated effort' to ensure that the victim would not
be found by any observer who would help her. Defendant had concealed the victim in a
bedroom over the course of two days, covered her in bedding when police arrived, and
drawn the curtains and locked the front door." [2] Despite "the victim's inability to
reconstruct all that occurred in chronological detail, the record is sufficient to show that
defendant committed the penetrative act in the course of an 'extended episode of
violence,' in which the victim was threatened and severely beaten, and her freedom of
movement was restrained. ... [A] rational factfinder could determine that the penetrative
act was 'forcibly compelled' by either the physical violence that preceded it or the threat
of more to come."
http://www.publications.ojd.state.or.us/docs/A151448.pdf



Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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