State v. Lewis, 337 P.3d 199

Defendant was tried and convicted of one count of fourth-degree assault (ORS 163.160), coercion, and two counts of harassment; acquitted on a second assault count. Court denied defendant’s motion for judgment of acquittal on Count 1.
Victim was defendant’s wife; their son T heard the victim say “Ouch. Stop it” and heard sounds like something hitting the wall during an incident when T was in his bedroom.
The next morning the victim pointed out clumps of hair on the floor and told T that defendant had been pulling out her hair.
A few days later the victim had a seizure; paramedics found multiple injuries, interviewed T, and contacted police. Defendant was arrested.
At trial the state argued that hair being pulled out could constitute physical injury (either impairment of physical condition or substantial pain). Defendant argued the evidence was insufficient to prove "physical injury" under ORS 161.015(7).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence supported conviction for fourth-degree assault because victim suffered "physical injury" (impairment of physical condition or substantial pain)	Hair ripped out and victim saying “Ouch. Stop it” allows a reasonable juror to find impairment or substantial pain	Evidence did not show skin damage, amount of hair loss, medical effects, or testimony of pain; at most fleeting pain or cosmetic hair loss	Reversed Count 1: evidence insufficient to prove either impairment of physical condition or substantial pain

State v. Hall, 327 Or. 568, 966 P.2d 208 (standard for reviewing sufficiency of the evidence)
State v. Higgins, 165 Or. App. 442, 998 P.2d 222 (minor, unnoticed scratches not impairment)
State v. Glazier, 253 Or. App. 109, 288 P.3d 1007 (injuries that diminish ordinary function can be impairment)
State v. Hart, 222 Or. App. 285, 193 P.3d 42 (gash disrupting skin protection is impairment)
State v. Jones, 229 Or. App. 734, 212 P.3d 1292 (larger scrape is impairment)
State v. Rice, 48 Or. App. 115, 616 P.2d 538 (slight scratch not physical injury)
State v. Wright, 253 Or. App. 401, 290 P.3d 824 (bruise on child not impairment or substantial pain)
State v. Poole, 175 Or. App. 258, 28 P.3d 643 (pain of sufficient degree and duration can be substantial pain)
State ex rel. Juv. Dept. v. Greenwood, 107 Or. App. 678, 813 P.2d 58 (hour-long headache after assault sufficed for substantial pain)
State v. Capwell, 52 Or. App. 43, 627 P.2d 905 (pain described as fleeting insufficient for substantial pain)
State v. Anderson, 221 Or. App. 193, 189 P.3d 28 (minor cuts and a child saying “Owie” insufficient to prove substantial pain)
State v. Rennells, 253 Or. App. 580, 291 P.3d 777 (bruises lasting days may show some pain but not necessarily substantial pain)