State v. Grant

PER CURIAM

Defendant appeals a judgment of conviction on one count of fourth-degree assault. In his second assignment of error, defendant argues that the trial court erred in denying his motion for judgment of acquittal because the evidence was legally insufficient to show that defendant caused the complainant a “physical injury” as defined in ORS 161.015(7). The state concedes error on that assignment. We agree, accept the state’s concession, and reverse. Because we reverse defendant’s conviction on that basis, we do not address his other assignments of error.

As relevant here, ORS 163.160 provides:

“(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!.]”

“Physical injury” is defined by statute as “impairment of physical condition or substantial pain.” ORS 161.015(7).

In this case, the trial court based its conviction of defendant on his causing the complainant “impairment of physical condition.” We have determined that an “impairment of physical condition” means “harm to the body that results in a reduction in one’s ability to use the body or a bodily organ for less than a protracted period of time.” State v. Higgins, 165 Or App 442, 446-47, 998 P2d 222 (2000). The state concedes that the evidence in this case is legally insufficient to support a finding of “physical injury” under the case law. We agree. The state presented no evidence that defendant caused the complainant a diminishment in the ability to use a body part or a disruption in the normal functioning of a bodily organ. Accordingly, we accept the state’s concession and reverse defendant’s judgment of conviction for fourth-degree assault.

Reversed.