State v. Drew

"A wound on the forehead and scalp that is four to six inches in length and half an inch wide after five staples had been used to close it is a 'disfigurement' as the term is ordinarily used," and, if it is "readily apparent to others, qualifies as 'serious.'" State v. Kinsey, 293 Or App, 208, 213, 426 P3d 674 (2018). 

Defendant appealed his convictions for Assault in the Second Degree and Unlawful Use of a Weapon. Defendant assigned error to the trial court's failure to merge the two guilty verdicts into one conviction for Assault in the Second Degree. The State conceded the trial court plainly erred. Defendant also assigned error to his mandatory 70-month sentence for Assault in the Second Degree arguing that the victim did not suffer a “significant physical injury” and  the injury did not result in “a serious and temporary disfigurement.” In response, the State argued Defendant was not eligible for a downward departure sentence under ORS 137.712 because the victim suffered an injury in a way that "created a risk of death that was not a remote risk." "A wound on the forehead and scalp that is four to six inches in length and half an inch wide after five staples had been used to close it is a 'disfigurement' as the term is ordinarily used," and, if it is "readily apparent to others, qualifies as 'serious.'" State v. Kinsey, 293 Or App, 208, 213, 426 P3d 674 (2018).The Court found that the evidence introduced, specifically the photograph of the wound with five staples in it, was legally sufficient to conclude that disfigurement was "serious" given its "distressing appearance" and its prominent location on the victim's face and scalp. Because the trial court plainly erred when it did not merge the two guilty verdicts, the court reversed and remanded for resentencing.