Court of Appeals of Oregon

March 16, 1981, Argued and submitted ; May 4, 1981

CA No. 19264

Reporter

52 Ore. App. 43 * | 627 P.2d 905 ** | 1981 Ore. App. LEXIS 2467 ***

STATE OF OREGON, Respondent, v. CHRISTOPHER GLEN CAPWELL, Appellant

Case Summary

Procedural Posture

Defendant sought reversal of his conviction in the Circuit Court, Marion County (Oregon), for fourth-degree assault, contending that the trial court erred in denying his motion for acquittal on the basis of insufficient evidence.

Overview

The charges against defendant stemmed from an incident with an off-duty police officer. The officer's wife noticed defendant in front of their house with a gas can. The officer went outside with his nightstick to investigate and apparently startled defendant. A scuffle ensued, defendant swinging the gas can and hitting the officer in the arm. The officer told defendant that he was under arrest. The defendant attempted to leave. The officer hit him around the knee with his nightstick. The defendant reacted by swinging the gas can and kicking out. There was no indication of bruising or any other injury to the officer. The court reversed defendant's assault conviction, finding there was insufficient evidence for a jury to find guilt, beyond a reasonable doubt, according to the statutory requirements. The state was required to prove that defendant's blows caused either physical impairment or substantial pain. The case was remanded for entry of a judgment for attempted fourth-degree assault, as the trier of fact had found that defendant had taken a substantial step toward commission of the assault offense. The attempt judgment was appropriate.

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Outcome

The judgment of conviction on fourth-degree assault was reversed and the cause was remanded for entry of a new judgment and for resentencing.

Opinion

This is a criminal case in which defendant seeks reversal of his conviction for Assault in The Fourth Degree. ORS 163.160. Defendant contends that the trial court erred in denying his motion for acquittal on the basis of insufficient evidence. We agree and reverse his conviction.

ORS 163.160 provides, in pertinent part, that a person commits the crime of Assault in the Fourth Degree if he "intentionally, knowingly or recklessly causes physical injury to another. * * *" "Physical injury" is defined as "impairment of physical condition or substantial pain." ORS 161.015(6). Defendant claims that there is no evidence that the alleged victim suffered any impairment of his physical condition or substantial pain.

At approximately 3 a.m. on June 1, 1980, the victim's wife noticed a man, later identified as the defendant, standing in front of their house and carrying a gas can. She awakened her husband, Tenderella, who is an Oregon State Police officer. After dressing he picked up his nightstick and went outside to investigate the matter. He told the defendant to stop where he was. The defendant, who appeared startled, swung the gas can at Tenderella but did not hit him. Tenderella identified himself as a police officer and began to question the defendant about his activities. At that point, he noticed a bulge underneath the defendant's coat and attempted to pat him down for weapons. The defendant pulled back and swung the gas can at Tenderella again, this time hitting him in the arm. Tenderella testified that he felt pain, a stinging sensation, when the defendant hit him.

Tenderella told the defendant that he was under arrest. The defendant attempted to leave and Tenderella tried "to put him down" by hitting him around the knee area with his nightstick. The defendant reacted by swinging the gas can and kicking out at Tenderella. At one point the defendant kicked him in the arm, knocking the nightstick out of his hand. The victim testified that this "hurt." He could not recall, however, whether the defendant was wearing soft or hard shoes.

The officer did not know exactly how many times he was hit with the gas can. He stated that it was a "couple of times" and that each time he stopped the blow with his arm. He reported no sensation other than it "hurt" and was painful. There is no indication of bruising or any other injury to the victim. He stated that he did not seek medical treatment after the scuffle and did not miss any work.

The question to be answered in determining the sufficiency of the evidence in this case is

"* * * whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S Ct 2781, 61 L Ed 2d 560 (1979); State v. Harris, 288 Or 703, 721, 609 P2d 798 (1980); State v. Rice, 48 Or App 115, 117, 616 P2d 538, rev den 289 Or 731 (1980).

There is no evidence that the victim suffered any impairment of his physical condition as a result of defendant's blows. The question is whether there is sufficient evidence to allow the jury to find, beyond a reasonable doubt, guilt according to the alternative statutory requirement, viz., that the victim suffered substantial pain. We conclude that there is not.

"Substantial" is defined as

"(1) That is or exists as a substance; having a real existence, subsisting by itself; (2) [***5] of ample or considerable amount, quantity or dimensions, (3) having substance, not imaginary, unreal or apparent only; true, solid real." Oxford English Dictionary, Compact Edition. (1971).

Substantial pain means considerable pain. In this case, the victim testified that he had pain and that it hurt when the defendant struck him. There is no other evidence of the degree of the pain or that it was anything more than a fleeting sensation. The state was required to prove that the defendant's blows caused either physical impairment or substantial pain to the victim. We conclude that there was insufficient evidence to support such a finding in this case.

Having stated that the evidence is insufficient to convict defendant of the offense of Assault in the Fourth Degree, the question remains: what disposition must be made of this case?

Assault in the Fourth Degree is a Class A misdemeanor. ORS 163.160. HN4 ORS 161.405 provides, in pertinent part:

"(1) A person is guilty of an attempt to commit a crime when he intentionally engages in conduct which constitutes a substantial step toward commission of the crime.

"(2) An attempt is a:

"* * *

"(e) Class B misdemeanor if the offense attempted is a Class A misdemeanor.

"* * *"

The Oregon Constitution, Amend Art VII, § 3 directs:

"* * * if, in any respect, the judgment appealed from should be changed, and the [appellate court] shall be of the opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered * * *."

In the present case, the trier of fact necessarily found that defendant had taken a "substantial step" toward commission of the assault offense. Entry of a judgment for Attempted Assault in the Fourth Degree is appropriate.

Reversed and remanded for entry of a new judgment and for resentencing.