State v. Martin , 328 Or. App. 541 ( 2023 )

541
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted August 30, afffirmed October 4, 2023,
petition for review denied March 7, 2024 (372 Or 107)
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAWSON ROGUE MARTIN,
Defendant-Appellant.
Curry County Circuit Court
21CR51739; A177782
Jesse C. Margolis, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Silberman, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
542 State v. Martin
KAMINS, J.
Defendant appeals from a judgment of conviction
after a jury trial for assault in the fourth degree constitut-
ing domestic violence, ORS 163.160, menacing constitut-
ing domestic violence, ORS 163.190, and harassment, ORS
166.065. He assigns one error, arguing that the trial court
erred in denying his motion for judgment of acquittal on the
menacing charge. We affirm.
Viewing the evidence in the light most favorable
to the state, the record shows that defendant twice pushed
his 78-year-old grandmother with enough force that she
fell to the ground and landed on her hip, after he threat-
ened to kill her earlier in the day. See State v. Davis, 261
Or App 38, 39, 323 P3d 276 (2014) (describing our standard
of review). Defendant argues that that evidence was insuf-
ficient to prove that a reasonable person would have feared
imminent serious physical injury. See ORS 163.190(1) (“A
person commits the crime of menacing if by word or conduct
the person intentionally attempts to place another person
in fear of imminent serious physical injury.”); State v. C. S.,
275 Or App 126, 130, 365 P3d 535 (2015) (“[T]he standard
is whether a ‘reasonable person’ would have been placed
in the requisite state of fear.” (Citations omitted.)). We dis-
agree because, “in the totality of the circumstances”—which
include defendant’s and his grandmother’s relative ages and
sizes—a factfinder could reasonably conclude that a per-
son in the position of defendant’s grandmother would have
feared imminent serious physical injury. Id. at 132 (empha-
sis omitted).
Affirmed.