State v. Kinsey

Under ORS 137.712, the court may impose a less than minimum sentence, determined under ORS 137.700, if the court finds that the victim was not “physically injured by means of a deadly weapon; that the victim did not suffer a significant physical injury; and [t]hat the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.”

Defendant appealed his convictions for second-degree assault and menacing (ORS 163.175 & ORS 163.190) and his sentence of 70 months of incarceration. Defendant assigned error to the trial court’s determination that the victim suffered “significant physical injury” in the assault. Defendant argued that there was nothing in the record to find “significant physical injury to the victim" and that Defendant is eligible for a lesser sentence under ORS 137.712(1). The State argued that the victim suffered from permanent protracted disfigurement because of a scar obtained from the assault. The court may impose a less than minimum sentence, determined under 137.700, if the court finds that the victim was not “physically injured by means of a deadly weapon; that the victim did not suffer a significant physical injury; and [t]hat the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.” ORS 137.712. The Court held that the Defendant to failed to prove that the scar was not a protracted disfigurement and that the record supported a finding of “significant physical injury” of the victim because of the scar. Affirmed.