359 P.3d 294
Or. Ct. App.2015Background
- In January 2011 defendant and the victim (E) lived together; defendant engaged in prolonged abusive, alcohol-fueled conduct over several days.
- On the morning of January 17 defendant twice covered E’s face with a pillow, the second time holding it for about five seconds so she could not breathe and causing her to fear for her life.
- During the same episode defendant also grabbed and repeatedly struck E in a hallway, and later shoved her toward her bedroom while cussing and ordering her to go there.
- Defendant was indicted on multiple domestic-violence counts including strangulation (Count 3), fourth-degree assault based on physical injury (Count 4), and coercion (Count 7); the coercion indictment did not specify the precise predicate act.
- At trial the jury was instructed on only one variant of coercion (that defendant induced E to abstain from conduct she had a right to engage in); the jury found defendant guilty on most counts.
- On appeal the court reviewed (1) sufficiency of evidence for Count 4 (physical injury), (2) whether Counts 3 and 4 must merge, and (3) sufficiency of coercion conviction under the instruction given.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for fourth-degree assault (physical injury) | State: impairment need not be protracted; complete inability to breathe for any time is impairment | Defendant: momentary interference with breathing (1–5 sec) is de minimis and not "physical injury" | Affirmed — jury could find material impairment where respiration was totally precluded for seconds and caused fear for life |
| Merger of strangulation (Count 3) and assault (Count 4) | State: statutes differ in elements; separate convictions permissible | Defendant: strangulation is lesser-included of assault so convictions should merge | Affirmed — elements differ (knowing mental state for strangulation v. reckless for assault and statutory means/ends differ) |
| Sufficiency of evidence for coercion (Count 7) under the jury instruction given | State: defendant’s threats/force compelled E to abstain or act | Defendant: no evidence he intended to induce abstention or that E abstained because of fear | Reversed — evidence legally insufficient under the instruction that required intentional inducement to abstain from conduct the victim had a right to engage in |
| Unlawful use of a weapon (briefly argued) | State: intent-to-injure requirement not necessary after controlling precedent | Defendant: prosecution failed to prove intent to injure with a weapon | Rejected based on later controlling precedent (Ziska/Garza) |
Key Cases Cited
- State v. Cunningham, 320 Or 47 (standard for reviewing MJOA)
- State v. Higgins, 165 Or App 442 (construction of "impairment of physical condition")
- State v. Hart, 222 Or App 285 (impairment includes involuntary bodily functions and analysis of cuts/gashes)
- PGE v. Bureau of Labor & Indus., 317 Or 606 (textual/legislative construction methodology)
- State v. Pedersen, 242 Or App 305 (essence of coercion is fear-induced compliance)