[DV_listserv] Physical Injury case--Good news!

[Domestic Violence issues]

State v. Guzman (1/27/16)

Defendant was convicted of assault in the fourth degree constituting DV based on the theory of substantial pain (the trial court did not believe there was sufficient evidence to support a finding of impairment of physical condition). Defendant appeals the conviction. Ct. of Appeals affirms:

The victim did not appear for GJ or for trial despite many attempts by the State to procure her attendance. (It is clear from a footnote in the opinion, which presents a text message from the defendant to the victim, that the defendant had tampered with the victim/witness.) Despite the victim's lack of attendance, the State went forward with the case. The State had independent witnesses who made good observations of the victim's demeanor and physical appearance. There  was also a 911 call and pictures of the victim's injuries. The pictures "depict[ed] bright red scratches on the victim's chin and left cheek; some swelling on both of the victim's cheeks, around both of her eyes, and on the left side of her forehead;  and more pronounced swelling on the right side of the victim's forehead, from her eyebrow to her hairline."

The holding hinges on the court's analysis and conclusion about the factfinder's ability to infer (rather than speculate) whether the victim suffered substantial pain.

The court concludes:

"A rational juror could infer from the evidence, including the 9-1-1 call, the descriptions of the victim's condition and demeanor by the two witnesses,
and the photographs of the victim's injuries, that the victim physically struggled against defendant and that he scratched and punched her face, or that her face collided
with a hard surface in the car during the struggle. And, based on those inferences and the photographs, a rational juror could infer that the victim's injuries involved "ample"
or "considerable" pain that was "more than * * * fleeting." Lewis, 266 Or App at 527-28. That is, given the basic facts adduced at trial, there is a reasonable probability that the
victim's significant facial swelling immediately after the altercation was painful and that her injuries turned into significant bruising and soreness that persisted for a consequential
See State v. Pipkin, 245 Or App 73, 77, 261 P3d 60 (2011), aff'd, 354 Or 513, 316 P3d 255 (2013) ("evidence that the victim was still in pain at least an hour after the attack and that her injuries were of substantial degree-her eye was swollen," inter alia, "was sufficient to create a question for the jury about whether the victim suffered substantial pain")."

The Court dismisses, without discussion, the defendant's assignment of error to the admission of the victim's 911 call.

http://www.publications.ojd.state.or.us/docs/A155005.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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