State v. Johnson

Under ORS 163.160(1)(a), to sustain a conviction of fourth-degree assault, the state must prove that the victim suffered a "physical injury" which is defined as "physical impairment or substantial pain" under ORS 161.015(7). Testimonial evidence that the victim felt a "sting" after the incident, alone, does not imply a "physical injury".

Defendant was convicted of 17 charges at trial, and appealed his conviction of fourth-degree assault, constituting domestic violence. Defendant argued that the trial court erred in denying his motion for acquittal on that charge, arguing that the State had failed to carry its burden to prove that the incident caused a "physical injury", an element required for conviction under ORS 163.160(1)(a). Testimony at trial showed that the victim felt a "sting" after Defendant slapped her face; and Defendant argued that this was insufficient to show "physical injury" as "physical injury" requires a showing of an impairment of physical condition or substantial pain. ORS 161.015(7). On appeal, the state conceded this error, and the Court agreed that the trial court erred in inferring from the testimony that the victim had suffered a "physical injury" as required under ORS 163.160(1)(a). Accordingly, the Court reversed the decision on this count, and otherwise affirmed the judgment.