"In reviewing the trial court's refusal to give a requested instruction, we view the record in the light most favorable to establishment of the facts necessary to require that instruction." State v. Egeland ,
In the course of a domestic dispute, defendant grabbed the victim, shook her, and struck her in the head with his hand. During the dispute, a screwdriver from defendant's pocket pressed into the victim's abdomen. Several people witnessed the attack, including the victim's six-year-old child. The victim obtained a restraining order against defendant the day after the incident, but she terminated it two weeks later.
Defendant was charged with nine offenses, including assault, burglary, and strangulation. At trial, the state
Two police officers testified. The responding officer recalled talking to the victim at the scene of the incident. According to that officer, the victim reported defendant having "placed his hands around her neck" for "about five to ten seconds" and having "slapped her once in the face[.]" An investigating officer recalled meeting with the victim five days later. At that time, the victim said that her throat had been sore. She rated her pain on a scale of one-to-10, indicating that it was a "two" on the night of the attack
On the witness stand, the victim acknowledged that she and defendant had argued, but she generally disagreed with or denied the state's characterizations of defendant's aggression, her fear, and her injuries. The state asked the victim whether she had told police that defendant had "placed both of his hands around [her] neck[,]" whether she said that defendant "slapped [her] on the left side of [her] face[,]" and whether she remembered saying that "defendant grabbed a screwdriver, was jabbing it into [her] left side near [her] stomach which later caused a bruise[.]" The victim replied that defendant shook her rather than strangled her and that he may have grabbed her by her shoulders instead of the neck. The victim said that she "never felt any strike marks" and did not believe that, amidst the commotion, she had been punched. The victim said that defendant had not pushed the screwdriver into her side but, rather, the screwdriver fell out of defendant's pocket and "poked" her during a "scuffle." The victim confirmed that she had rated her neck pain on a 10-point scale, but then claimed that, in
The state introduced evidence to impeach the victim's testimony. That included photographs depicting bruises and red marks on the victim's neck, face, and abdomen, as well as call records and text messages between the victim and defendant. The state also presented the victim's petition for a restraining order, from which it read into the record a violent description of the incident of abuse that contradicted the victim's testimony.
In response, the victim testified that she had previously exaggerated defendant's conduct. She said that she felt compelled to petition for a restraining order against defendant because she was afraid that, had she not done so, the state may have taken custody of her child. The victim also said that she did not want to press charges, but officials assured her that doing so would ensure that defendant received needed substance abuse treatment. She explained, "He just needs help."
After the testimony concluded, the court and counsel reviewed proposed jury instructions. As to the assault charge, the parties agreed to use uniform jury instructions that, in relevant part, instructed that the state must prove that defendant caused "physical injury" to the victim, and defining physical injury as "an injury that impairs a person's physical condition or causes substantial pain." In addition, defendant requested a special instruction:
"Substantial pain means considerable pain. The term substantial pain refers to the degree and duration of pain suffered by the victim. To be substantial, pain must be ample or considerable. The requirement excludes pain that is fleeting or inconsequential."
The state opposed the special instruction, contending that the uniform instruction for physical injury was sufficient. Defendant argued that his instruction would clarify a word within the uniform instruction. The court denied defendant's request, recommending that, if counsel wanted to include the additional language, she submit it for consideration to the committee tasked with writing uniform jury instructions.
"[Defendant] put both his hands around her throat, strangled her[.] * * * [S]he didn't want to tell you it occurred or that she had any trouble breathing or swallowing, but she did tell officers that, and she rated her pain a two that night and then said that it was a six or seven two days after that. It was still painful when officers saw her on May 3rd.
"Whether or not there was petechiae present * * * he strangled her[.]"
"Going to the Assault IV, what happened? There are all kinds of charges that could have been in (inaudible) here and that could have been brought here. Harassment, which is offensive physical contact. It's intended to be less than an assault, like spitting on someone, slapping someone across the face, giving them a shove, not nice contact. They didn't charge that. They charged assault. Assault is a specific crime meaning that you caused substantial pain or impairment of physical condition.
"Now, [the victim] says she was slapped. [A witness] says she was punched three times in the face by a pretty good sized guy and that her head moved to the side each time he punched her in the face with a closed fist. And there's no evidence of any pain. There's no evidence of any injury. I would suggest to you that slap is probably what he did. It's a terrible thing. If they charged harassment, I wouldn't-I'd be telling you the same thing I told you on the criminal mischief charge. That's what he did. That's what you should find him guilty of. * * *
"If you find that she didn't suffer substantial pain from his punching her, then that's not assault. And when I think about substantial pain, well, substantial, that's a lot. It's not something mild. It's substantial pain. It's not-Theydon't say just pain, and they really don't say discomfort. They say substantial pain, a lot of pain."
In rebuttal, the state still did not explicitly choose a particular theory of assault. It underscored that defendant "strangled" the victim, "slapped her in the face," "punched her in her head," and "jabbed a screwdriver into her side," and it cited the photographs and the victim's neck soreness as evidence of substantial pain.
The jury ultimately found defendant guilty of five offenses, including fourth-degree assault constituting domestic violence and first-degree burglary constituting domestic violence.
On appeal, defendant challenges the trial court's refusal to give the special jury instruction defining substantial pain. He argues that the instruction would have helped the jury by explaining that the term "substantial" refers to the degree and the duration of pain. Defendant contends that the instruction is necessary whenever evidence supports the inference that the victim suffered only fleeting pain. He argues that such evidence existed here, suggesting that the victim was slapped, shaken, and inadvertently poked, rather than punched, choked, and deliberately jabbed.
The state argues that the instruction was unnecessary because the evidence raised no question as to whether the victim's pain was merely fleeting. Also, the state argues that defendant failed to demonstrate that the instruction would have supported his theory of the case, because defendant gave no opening argument, presented no evidence, and otherwise failed to make known any theory of insubstantial pain. Finally, the state argues that any error was harmless because the case presented the jury only a choice between substantial pain or no pain at all.
We review a trial court's refusal to give a requested jury instruction for legal error. Egeland ,
We begin by considering whether the instruction that defendant sought correctly stated the law. Recently, in Roberts , we answered that question in the affirmative when considering a jury instruction nearly identical to that which defendant requested.
We next consider whether the record contained evidence to support defendant's theory that the victim suffered only "fleeting" or "insubstantial" pain. That is, we ask whether the issue of duration was before the jury. We conclude that it was. Some testimony suggested that the victim showed no symptoms of pain immediately after the incident, much less days later. The victim said that she "never felt any strike marks." She disputed the soreness in her neck and said that she merely meant it had "tensed
From that evidence, a factfinder could conclude that the state failed to prove beyond a reasonable doubt that the victim suffered anything but momentary pain. See, e.g. ,
The related question is whether the requested instruction was unnecessary. In Roberts , we concluded that a special instruction was necessary when the record contained evidence from which a factfinder could infer that the victim's pain was "fleeting," and when other instructions failed to fully cover that substance.
We concluded, however, that an instruction telling the jury that "substantial" encompasses a durational component-that the pain cannot be only momentary-was required under the circumstances.
Likewise, here, the durational component of defendant's requested instruction was necessary. This case involves the same uniform instructions on physical injury and a request for a nearly identical instruction on substantial pain as in Roberts . Because the record supports an inference that the victim suffered pain that was only momentary, it was necessary to instruct the jury that pain cannot be substantial if it is fleeting. The trial court erred in refusing to give defendant's requested instruction.
For a different reason, the state insists that the special instruction was still unnecessary. The state argues that defendant was not entitled to the instruction because he failed to establish that his theory of the case was that the victim had pain that was only fleeting. Although the state is correct that, in Roberts , it was the defendant who offered the evidence that supported the jury instruction, nothing required that to be so; the evidence could have just as easily come from the state. After all, criminal defendants bear no burden of proving their innocence. See, e.g. , ORS 10.095(6) ("[I]n criminal cases a person is innocent of a crime or wrong until the prosecution proves otherwise, and guilt shall be established beyond reasonable doubt[.]"). Simply
Our inquiry does not end with the conclusion that the trial court erred in refusing to give defendant's requested instruction. "Instructional error, like any other error, does not justify reversal unless the error was prejudicial." Roberts ,
In the first of two arguments, the state contends that the court's failure to give the substantial pain instruction was harmless because the record would not have supported the jury finding that defendant caused any pain without also finding that pain to be substantial. The state argues that, because the jury found that the victim experienced pain, it necessarily found that pain to be substantial. The state claims that evidence of the victim's persistent and worsening neck pain was undisputed and, based on that record, the substantial pain instruction would not have made a difference in the jury's deliberations.
We disagree. We are unable to discern whether the jury relied on evidence of the victim's neck soreness to conclude that defendant caused substantial pain. Although
Under these circumstances, we cannot conclude that the instructional error was harmless. With proper instruction, the jury would have known that a slap causing fleeting pain is legally insufficient. Absent such guidance, the jury may have operated with an erroneous impression of what constitutes substantial pain and a physical injury, and that understanding may well have affected the outcome as to the assault count.
In its second argument, the state argues that the court's failure to give the instruction was harmless because defendant's closing argument focused on the victim having no pain, as opposed to some fleeting pain. Again, we disagree. Defendant's strategy on the assault charge focused on challenging whether the victim's pain was substantial. Defendant claimed that "there [was] no evidence of any pain" as a means for showing that "a slap is probably what [defendant] did." Defendant cited the absence of pain after the attack to demonstrate that he did not engage in the type of conduct that could cause the pain necessary to constitute a physical injury for an assault. His argument that he slapped the victim suggested that the victim's pain was transitory. Consequently, an instruction on the durational
Because the instructional error was not harmless with respect to the assault conviction, it follows that the error may have affected the burglary verdict. To prove first-degree burglary constituting domestic violence, the state had to show that defendant knowingly entered or remained unlawfully in the residence where the attack occurred with the intent to commit the assault . If the jury had found that defendant engaged in conduct that caused only fleeting pain to the victim, that could have affected its finding that defendant intended to commit assault when entering or remaining in the residence in the first instance. For that reason, our conclusion as to the assault verdict requires reversal of the burglary verdict, as well.
In sum, defendant was entitled to an instruction telling the jury that, to find a physical injury for an assault charge, the jury must find the pain to be substantial in duration, that is, not fleeting. No other instruction adequately covered that substance. The instructional error was not harmless, and reversal is required for the two offenses, directly or indirectly, pertaining to physical injury.
Judgment of conviction on Counts 1 and 4 reversed and remanded; remanded for resentencing; otherwise affirmed.
Notes
After the initial briefing was complete, defendant filed a supplemental brief that included supplemental assignments of error raising as plain error the trial court's instructions to the jury that it could return nonunanimous verdicts. Defendant contends that the Sixth and Fourteenth Amendments to the United States Constitution require unanimous jury verdicts. We reject those arguments on the merits without further discussion.
The jury also convicted defendant of three other offenses: felony strangulation, ORS 163.187(4) ; unlawful possession of methamphetamine, ORS 475.894 ; and second-degree criminal mischief, ORS 164.354.
The instruction in Roberts stated: "Substantial pain encompasses both the degree and duration of pain suffered by the victim. Fleeting pain is insufficient. * * * To be substantial, the pain must be ample or considerable and not fleeting or inconsequential."