State v. Delaportilla

To prove second-degree assault under ORS 161.015(1), the state must present direct evidence, and not merely infer, that a dangerous weapon was used by the defendant to harm the victim.

Defendant was charged with second-degree assault under ORS 163.175(1)(b), which occurs when one intentionally or knowingly causes physical injury to another person through the use of a deadly or dangerous weapon. At issue on appeal was whether the state provided evidence to prove that defendant used a dangerous weapon. Per ORS 161.015(1), a "dangerous weapon" constituted any weapon, device, instrument, material or substance that, under the circumstances in which it is used, was capable of causing death or serious physical injury. At trial, the state provided evidence of a skull fracture and that the skull fracture had been caused by a significant amount of force consistent with intentionally inflicted trauma. However, the state presented no evidence that an object was used, or how it was used, to fracture the victim's skull. The trial court denied defendant motion for a judgment of acquittal on that ground. On appeal, the Court of Appeals held that direct evidence of the use of a dangerous element was a statutory requirement and that no such evidence was presented at trial. Reversed and remanded