State v. Long

The state must prove either that the defendant inflicted substantial pain on or impaired the physical condition of the alleged victim in order to convict the defendant of fourth-degree assault constituting domestic violence. ORS 161.015(7); ORS 163.160(1)(a).

Defendant appealed a conviction for one count of fourth-degree assault constituting domestic violence. Defendant assigned error to the trial court’s jury instructions regarding “substantial pain.” Defendant argued that the record lacked sufficient evidence to permit a finding that the alleged victim suffered “substantial pain.” The State responded that the evidence supported both, “substantial pain” and “impaired physical condition” jury instructions. The state must prove either that the defendant inflicted substantial pain on or impaired the physical condition of the alleged victim in order to convict the defendant of fourth-degree assault constituting domestic violence. ORS 161.015(7); ORS 163.160(1)(a). The Court of Appeals held the trial court erred in submitting the substantial pain instruction to the jury because the alleged victim denied experiencing any pain after the incident. The Court further held the error was not harmless because it created a risk that jury could convict Defendant on a theory with insufficient evidence. Reversed and remanded as to the fourth-degree assault conviction, and otherwise affirmed.