State v. Given ( 2024 )

No. 519 July 31, 2024 51
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALLEN MICHAEL GIVEN,
Defendant-Appellant.
Lane County Circuit Court
20CR39481; A179860
Debra K. Vogt, Judge.
Submitted June 12, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
52 State v. Given
ORTEGA, P. J.
The victim (a Black man), his fiancé, and three kids
(at least two of which are biracial) were at a park feeding
ducks, when defendant ran towards them with a skateboard
in hand. Standing about 30 feet away, defendant called the
victim a racial slur and made a throwing motion with his
skateboard towards the family.1 The victim’s wife thought
defendant was “going to throw it hard.” He said that “the
KKK [is] going to come and kill you all in your sleep” and
that they “all deserve it.” For that conduct, defendant was
found guilty of second-degree bias crime, ORS 166.155, and
menacing, ORS 163.190. On appeal, in two assignments of
error, defendant challenges the trial court’s denial of his
motions for judgment of acquittal as to both charges, mak-
ing a single legal argument: that there was legally insuffi-
cient evidence that he threatened to cause “serious physical
injury.” For the following reasons, we affirm.
In reviewing the denial of a motion for judgment of
acquittal, we view the evidence in the light most favorable to
the state to determine whether a rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt. State v. Nguyen, 222 Or App 55, 66, 191 P3d
767 (2008), rev den, 345 Or 690 (2009).
As alleged, an essential element of both second-
degree bias crime and menacing is that defendant threat-
ened or attempted to place the victim in fear of imminent
“serious physical injury.”2 See State v. Black, 320 Or App
263, 266, 512 P3d 866, rev den, 370 Or 455 (2022) (holding
that, as alleged, the elements of menacing are subsumed
1
More specifically, the trial court found that defendant was “pumping [the
skateboard] in a throwing manner” towards the family.
2
As charged, the crime of second-degree bias crime occurs when a person
“[i]ntentionally, because of the person’s perception of race, color * * * or
national origin of another person or of a member of the other person’s family,
subjects the other person to alarm by threatening:
“(A) To inflict serious physical injury upon or to commit a felony affecting
the other person, or a member of the other person’s family[.]”
ORS 166.155(1)(c)(A) (emphasis added).
Menacing occurs when “by word or conduct the person intentionally attempts
to place another person in fear of imminent serious physical injury.” ORS 163.190
(emphasis added).
Cite as 334 Or App 51 (2024) 53
within the elements of second-degree bias crime); State v.
Smith, 319 Or App 388, 395, 510 P3d 217, rev den, 370 Or
404 (2022) (construing second-degree bias crime to require
evidence that the defendant created “a fear of imminent per-
sonal violence likely to be carried out”). The focus of defen-
dant’s argument is the degree of harm threatened by defen-
dant’s actions. That is, defendant argues that “even if it is a
fair inference that had defendant hurled the skateboard at
the family from 30 feet away it may have caused a ‘physical
injury,’[3] it is not a fair inference that that injury would rise
to the level of ‘serious physical injury.’ ” 4 He suggests that
the distance between him and the victim mitigated the risk
associated with throwing the skateboard.
Whether throwing a skateboard 30 feet is too great
a distance to cause “serious physical injury” misconstrues
the operative question: what harm was threatened by defen-
dant’s words and conduct? Defendant’s conduct of making
the throwing motion with his skateboard from 30 feet away
communicated his threat of violence, but that conduct was
not necessarily the limit of the violence he threatened.
Nothing prevented defendant from getting closer to the vic-
tim before throwing the skateboard or from engaging in
alternative forms of violence. The issue at trial was whether
defendant’s words and conduct together were sufficient to
communicate to a reasonable person in the victim’s position
that defendant would imminently cause “serious physical
injury.” See State v. Theriault, 300 Or App 243, 254, 452 P3d
1051 (2019) (quoting State v. White, 115 Or App 104, 107-
08, 838 P2d 605 (1992)) (“[B]ecause intent to place another
person in fear is the ‘gravamen’ of menacing, the state is
not required to prove a single act to support a conviction
for menacing. Rather, a defendant’s entire course of conduct
may be evidence of that defendant’s intent to instill fear
in the victim.”). Given the way that defendant approached
the victim and his family, the words he said to the victim
and his family, the manner and tone in which he said those
3
“Physical injury” is defined as “impairment of physical condition or sub-
stantial pain.” ORS 161.015(7).
4
“Serious physical injury” is defined as “physical injury which creates a sub-
stantial risk of death or which causes serious and protracted disfigurement, pro-
tracted impairment of health or protracted loss or impairment of the function of
any bodily organ.” ORS 161.015(8).
54 State v. Given
words, and the act of making a throwing motion towards
the family with his skateboard—all viewed in the light most
favorable to the state—allowed for the nonspeculative infer-
ence that defendant was threatening to imminently engage
in a level of physical violence that could cause “serious phys-
ical injury.”
Affirmed.