State v. Renard ( 2022 )

282
Argued and submitted March 28; reversed and remanded for merger of guilty
verdicts on Counts 1 and 2, remanded for resentencing, otherwise affirmed
April 27; petition for review denied September 1, 2022 (370 Or 212)
STATE OF OREGON,
Plaintiff-Respondent,
v.
STEPHEN DOUGLAS RENARD,
Defendant-Appellant.
Lane County Circuit Court
19CR52930; A174174
509 P3d 760
Defendant appeals from convictions for assault in the fourth degree consti-
tuting domestic violence, ORS 163.160 (Count 1), and harassment constituting
domestic violence, ORS 166.065 (Count 2), based on conduct against the same
victim during the same criminal episode. He assigns error to the trial court’s
admission of an officer’s testimony that bruises on the victim’s arm were consis-
tent with fingermark bruising. He also contends that the trial court erred in fail-
ing to merge the two guilty verdicts, which the state concedes. Held: The Court
of Appeals held that the officer’s testimony that bruises on the victim’s arm were
consistent with fingermark bruising was properly admitted as expert opinion.
The court accepted the state’s concession that the guilty verdict on defendant’s
harassment constituting domestic violence conviction must merge with the guilty
verdict on defendant’s conviction for assault in the fourth degree constituting
domestic violence.
Reversed and remanded for merger of guilty verdicts on Counts 1 and 2;
remanded for resentencing; otherwise affirmed.
R. Curtis Conover, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Doug M. Petrina, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
Cite as 319 Or App 282 (2022) 283
EGAN, J.
Reversed and remanded for merger of guilty verdicts
on Counts 1 and 2; remanded for resentencing; otherwise
affirmed.
284 State v. Renard
EGAN, J.
Defendant appeals from convictions for assault in the
fourth degree constituting domestic violence, ORS 163.160
(Count 1), and harassment constituting domestic violence,
ORS 166.065 (Count 2), based on conduct against the same
victim during the same criminal episode. He assigns error
to the trial court’s admission of an officer’s testimony that
bruises on the victim’s arm were consistent with fingermark
bruising. He also contends that the trial court erred in fail-
ing to merge the two guilty verdicts, which the state con-
cedes. We conclude that the trial court did not err in admit-
ting the officer’s testimony, but we agree with defendant and
the state that his guilty verdicts should merge. We therefore
reverse remand for merger and resentencing.
The charges arose out of an incident in which defen-
dant punched the victim in the stomach, grabbed her arms,
threw her into the wall, and shoved her to the ground. Two
days after the incident, an investigator took photographs
of the victim’s injuries. At trial, the victim testified that
three photographs depicted bruises that were fingerprints
left from when defendant grabbed her arms. The state then
called the investigating officer, who described his training
in identifying injuries, including fingermark bruising. The
state presented the photographs of the victim’s arms to the
investigating police officer. Over defendant’s objection that
the evidence was “outside the scope of this witness’s * * *abil-
ity to testify,” the trial court allowed the officer’s testimony,
offered by the state “as lay opinion, and based on his train-
ing and experience,” that the images in the photographs
appeared to be consistent with fingermark bruising.
On appeal, defendant contends that the trial court
erred in admitting the testimony as “lay opinion,” rather
than expert opinion, without the required foundation for
expert testimony.
We reject defendant’s contention. In the first place,
the contention was not preserved. Defendant never argued
below that there was an inadequate foundation for either
lay or expert opinion testimony. But even assuming that the
argument was preserved, it is incorrect. The state offered
the officer’s testimony as “lay opinion, and based on his
Cite as 319 Or App 282 (2022) 285
training and experience.” The record does not show whether
the trial court admitted the testimony as lay or expert opin-
ion, only that the court overruled defendant’s objection that
the evidence was outside of the officer’s ability to testify. It
is clear from the record that the state intended to lay a foun-
dation for expert testimony by having the witness describe
his training and experience. And, based on the foundation
that the state made, the evidence was admissible as expert
testimony.1 See OEC 702 (“a witness qualified as an expert
by knowledge, skill, experience, training or education may
testify” about “scientific, technical or other specialized
knowledge [that] will assist the trier of fact to understand
the evidence or to determine a fact in issue.”). We need not
decide, therefore, whether it was also admissible as lay
opinion. See State v. Rambo, 250 Or App 186, 192, 279 P3d
361 (2012), rev den, 353 Or 203 (2013) (because the court
properly admitted the challenged testimony as nonscientific
expert opinion, the court did not need to consider whether it
also qualified for admission as lay opinion evidence). There
was no error in admitting the testimony.
The state concedes that defendant’s harassment
conviction should merge with the fourth-degree assault,
and we agree. Harassment is not generally a lesser-included
offense of fourth-degree assault, because misdemeanor
fourth-degree assault requires proof of physical injury,
and harassment, does not. ORS 163.160(1)(a) (assault in
the fourth degree);2 ORS 166.065(1)(a) (harassment). Thus,
the two offenses would not ordinarily be subject to merger.
ORS 161.067(1) (“When the same conduct or criminal epi-
sode violates two or more statutory provisions and each pro-
vision requires proof of an element that the others do not,
there are as many separately punishable offenses as there
are separate statutory violations.”). As the state concedes,
1
Defendant does not make any separate argument as to how the foundation
was inadequate for expert opinion. We note also that defendant does not contend
that the testimony required a foundation for scientific expert opinion.
2
ORS 163.160 provides, in part:
“(1) A person commits the crime of assault in the fourth degree if the
person:
“(a) Intentionally, knowingly or recklessly causes physical injury to
another[.]”
286 State v. Renard
however, when the element “constituting domestic violence,”
ORS 132.586, is established with respect to harassment,
the harassment offense can subsume all of the elements of
the misdemeanor assault offense. ORS 135.230(3) defines
“domestic violence” as “abuse between family or household
members.” Here, the jury was instructed on all three forms
of abuse as defined in ORS 135.230(1),3 including that defen-
dant “[a]ttempted to cause or intentionally, knowingly or
recklessly caused physical injury.” ORS 135.230(1)(a). When
an element of one offense is the commission or attempted
commission of another offense, and the latter offense, as
separately charged, does not have any additional elements
and factually is the same offense as the former offense, the
former offense subsumes the latter offense. See Martinez v.
Cain, 366 Or 136, 150, 458 P3d 670 (2020) (ORS 161.067(1),
“properly interpreted and applied,” “required merger of peti-
tioner’s guilty verdicts on first-degree robbery and attempted
aggravated felony murder.”); State v. Postlethwait, 312 Or
App 467, 493 P3d 35 (2021) (robbery subsumes ordinary
predicate theft). The domestic violence allegation of abuse
by “[a]ttempt[ing] to cause or intentionally, knowingly or
recklessly caus[ing] physical injury” described an assault in
the fourth degree. Thus, as alleged, the charge of harass-
ment constituting domestic violence subsumed the charge of
assault in the fourth degree.
The state and defendant agree that, although the
elements of the harassment charge subsumed the elements
of the assault charge, the proper disposition is to merge
the harassment guilty verdict into the assault, because
the assault was the more serious offense and carried the
greater punishment. See State v. Haddon, 286 Or App 191,
199, 199 n 7, 399 P3d 458 (2017) (regardless of which offense
3
ORS 135.230(1) defines three alternative forms of “abuse”:
“ ‘Abuse’ means:
“(a) Attempting to cause or intentionally, knowingly or recklessly caus-
ing physical injury;
“(b) Intentionally, knowingly or recklessly placing another in fear of
imminent serious physical injury; or
“(c) Committing sexual abuse in any degree as defined in ORS 163.415,
163.425 and 163.427.”
Cite as 319 Or App 282 (2022) 287
has “fewer unique elements,” the guilty verdict for the less-
serious offense merges into the more-serious offense).
Reversed and remanded for merger of guilty ver-
dicts on Counts 1 and 2; remanded for resentencing; other-
wise affirmed.