State v. Stone

“Second-degree assault under ORS 163.175(1)(a) requires ‘[i]ntentionally or knowingly caus[ing] serious physical injury to another[.]’” “’[S]erious physical injury,’ … is defined in ORS 161.015(8) to mean ‘physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.’”

Defendant and G were neighbors in a micro-home community, and while drinking, G was injured by defendant having “fairly substantial injuries to his face,” but "[u]pon examination, G’s injuries were not life threatening.” There was also evidence submitted at trial that G may have suffered a concussion during the altercation. Defendant was charged with first-degree assault, moved for a judgment of acquittal, was found guilty of second-degree assault at trial, and appealed based on the denial of his motion for judgment of acquittal. “Second-degree assault under ORS 163.175(1)(a) requires ‘[i]ntentionally or knowingly caus[ing] serious physical injury to another[.]’” “’[S]erious physical injury,’ … is defined in ORS 161.015(8) to mean ‘physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.’” Under State v. Alvarez, 240 Or App 167, 170-71, (2010), the actual injury is the determining factor in deciding if there was a substantial risk of death, and therefore, the Court held there was insufficient evidence to support a conviction second-degree assault on a substantial risk of death theory. The Court proceeded to consider whether Defendant's concussive symptoms constituted a protracted impairment of health under the statute, an issue of first impression for the Court. Despite G having some initial cognitive functional issues, G himself felt that his symptoms resolved after the first six weeks. The Court held that the State had not met the evidentiary burden of proving a protracted concussion, and thus the evidence was legally insufficient to meet the statutory definition of serious physical injury. Reversed and Remanded.