State v. Colpo

"A person commits the crime of criminal mistreatment in the first degree if: The person, in violation of a legal duty to provide care for a dependent person or elderly person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person or elderly person, intentionally or knowingly: Causes physical injury or injuries to the dependent person or elderly person." ORS 163.205(1)(b)(A).

At trial, Defendant was convicted of one count of first-degree mistreatment. On appeal, Defendant assigned error to the trial court’s denial of her motion for acquittal. Defendant argued that the evidence did not establish that she caused “substantial pain” to the victim. Defendant contended that the pain she caused to her 6 year old son by punching her son in the stomach was “fleeting and inconsequential.” Under ORS 163.205(1)(b)(A), the offence is committed when a person violates “a legal duty to provide care for a dependent person. . . [and] intentionally or knowingly [c]auses physical injury or injuries to the dependent person." Physical injury means “impairment of a physical condition or substantial pain.” ORS 161.015(7). Whether pain was substantial is measured from the victim’s subjective perspective. State v. Guzman, 276 Or App 208, 211 (2016). The Court held that the trial court’s denial of Defendant’s motion for acquittal was not in error. The Court found that a reasonable trier of fact could have concluded that the pain suffered by the victim was substantial because the victim testified that the feeling was like “being hit by a baseball, baseball bat, or a rock” and felt as if he was going to vomit afterward. Affirmed.