State v. Turntine

The words "previously convicted" in ORS 163.160(3)include those offenders found guilty of previously assaulting the same victim, even if a formal judgment of conviction has not yet been entered on the previous assault.

Defendant appealed a felony conviction for assault in the fourth degree. Defendant assigns error to the trial courts denial of his motion for acquittal on the ground that the state failed to prove that Defendant had been "previously convicted" of assaulting the victim, and the trial court's imposition of restitution when the state failed to present any evidence regarding the victims economic damages before sentencing. The court only addressed the first issue. On October 31, 2010, Defendant and victim got in a dispute in which Defendant pushed victim’s head into a door. Defendant plead guilty to assault in the fourth degree and entered a deferred sentencing program. Later, Defendant pushed victim into a television. Defendant was charged with felony assault in the fourth degree. On appeal, Defendant argued "has been previously convicted" to mean a final judgment. Defendant argues that otherwise the legislature would have added "verdict of guilty." The state responded that the intended meaning of the word "convicted" includes a "finding of guilt" that precedes a formal entry of a judgment of conviction. The court found that based on the text and context, the legislature intended the words "previously convicted" in ORS 163.160(3) to include those offenders found guilty of previously assaulting the same victim, even if a formal judgment of conviction has not yet been entered on the previous assault. Affirmed.