State v. Wiltse

A person commits third-degree assault if the person recklessly causes a “serious physical injury” by means of a dangerous or deadly weapon. ORS 163.165(1)(a).

Defendant appealed a conviction for assault in the third degree. Defendant assigned error to the trial court’s special instruction on what constitutes a “protracted disfigurement” for purposes of proving the “serious physical injury” element of assault in the third degree. On appeal, Defendant argued that it was plain error for the trial court to instruct the jury that, “a scar on the scalp visible five months after the injury qualifies as protracted disfigurement[,]” because the instruction directly informed the jury how evidence related to the victim’s injury should be viewed. In response, the State argued that the trial court correctly instructed the jury about the meaning of “serious physical injury” because it is simply a restatement of the holding in State v. Alvarez, 240 Or App 167, 171, 246 P3d 26 (2010), rev den, 350 Or 408 (2011). “A person commits third-degree assault if, as relevant here, the person recklessly causes a “serious physical injury” by means of a dangerous or deadly weapon.” ORS 163.165(1)(a). The Court found that when the trial court gave this jury instruction, it impermissibly commented on the evidence by drawing attention to the scar, which directly informed the jury how certain evidence related to whether the injury was protracted and whether it constituted disfigurement. Despite the finding that the instruction was impermissible, the Court held that the trial court did not err in giving that instruction. AFFIRMED.