State v. Lindsey

609 P.2d 386 (1980) 45 Or.App. 607

STATE of Oregon, Respondent,
v.
Jerry Edward LINDSEY, Appellant.

No. 163788-7901; CA 15597.

Court of Appeals of Oregon.

Argued and Submitted February 13, 1980. Decided April 7, 1980.

Rita Radich, Portland, argued the cause and filed the brief for appellant.

Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P.J., RICHARDSON, J., and SCHWAB, C.J.^[*]

RICHARDSON, Judge.

Defendant was convicted after a trial to the court of assault in the fourth degree on Lawrence Stahl; theft in the second degree, and assault in the fourth degree on Charles Gibbons. He appeals only the conviction for assault on Charles Gibbons, contending there was no evidence to support that conviction. The state concedes error in that the only injury the victim suffered was a torn shirt. Assault in the fourth degree, ORS 163.160, requires that there be a physical injury which is defined as "impairment of physical condition or substantial pain." ORS 161.015(6).

The state argues that defendant did not preserve the claimed error by a proper motion in the trial court and contends we should not consider the error on its merits. Defendant acknowledges that the contention raised on appeal was not advanced in the trial court but argues we should consider the issue.

In certain limited instances we have taken cognizance of claimed errors despite the fact that they were not properly preserved by action in the trial court. See State v. Carsner, 45 Or. App. 115, 608 P.2d 560 (1980); State v. Applegate, 39 Or. App. 17, 591 P.2d 371, rev. den. 287 Or. 301 (1979); State v. Reid, 36 Or. App. 417, 585 P.2d 411 (1978); State v. King, 42 Or. App. 721, 601 P.2d 845 (1979); see also Rule 7.19, Supreme Court and Court of Appeals, Rules of Procedure.^[1] We consider the claim of error and reverse. The state concedes that there was no evidence to support the crucial element of assault in the fourth degree on Charles Gibbons. The judgment of conviction of Count III of the complaint is reversed.

Reversed.

NOTES

[*] SCHWAB, C.J., vice LEE, J., deceased.

[1] In State v. Willy, 36 Or. App. 853, 585 P.2d 762 (1978), one of defendant's claims of error was that there was absolutely no evidence to support the verdict rendered by the court. Defendant conceded that that contention was not raised at trial. We noted that normally appellate courts will not review matters which have not been called to the attention of the trial court. State v. Frye, 2 Or. App. 192, 465 P.2d 736 (1970). We then said: "Because, however, the allegation is that there was absolutely no evidence from which the defendant could have been convicted, we consider the issue presented by the defendant." 36 Or. App. at 857, 585 P.2d at 764.

The language from Willy should not be read as establishing any general rule that we will always consider challenges to the sufficiency of the evidence when such challenges were not raised in the trial court. The rule is that we may consider such assignments in our discretion. Willy was a case in which we exercised that discretion.