State v. Raney

547 P.3d 172

331 Or.App. 693

STATE of Oregon, Plaintiff-Respondent,

v.Eric Nakia RANEY, Defendant-Appellant.

A177094

Court of Appeals of Oregon.

Argued and Submitted August 10, 2023

April 3, 2024

Washington County Circuit Court, 19CB79122; Oscar Garcia, Judge.

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

PAGÁN, J.

₆₉₅Defendant appeals from a judgment in which he was convicted of one count of second-degree assault constituting domestic violence (Count 1) and one count of fourth-degree assault constituting domestic violence (Count 5).¹ Those charges stem from injuries that the state alleged defendant caused to D, his then-girlfriend. On appeal, defendant raises seven assignments of error that we address in the order they were raised. With respect to the third assignment, we exercise our discretion to review for plain error and conclude that the trial court plainly erred by not instructing the jury that it must find a culpable mental state for the physical injury element of second-degree assault on Count 1. We further conclude that, under the circumstances of this case, that error was not harmless. We thus reverse and remand Count 1, remand for sentencing, and otherwise affirm.²

[1] Defendant asserts in his first assignment of error that the trial court erred in denying his motion for judgment of acquittal (MJOA). For purposes of reviewing the denial of an MJOA, "we view the evidence in the light most favorable to the state." State v. Nickles, 299 Or App 561, 562, 451 P.3d 624 (2019). The following facts are recited with that standard in mind. To the extent that we must consider other facts or view them with a different standard in mind to address defendant’s other assignments of error, we do so in conjunction with the analysis of those other assignments.

I. FACTS

Defendant and D lived together. In November 2019, after a night out, D drove defendant home. During the drive, defendant was intoxicated and argumentative. When they got to their apartment, D began to park, and defendant called her a "stupid cunt." D turned to defendant, swatted ₆₉₆his arm, and said, "I told you to never call me that again." Defendant then punched D on the left side of her face with his right arm.³

Defendant left the car and went into the apartment; a few minutes later, D followed. Defendant continued to shout at D as she removed her boots and started to walk down the carpeted hallway to her bedroom in the back of the apartment. D recalled walking down the hallway. However, the next thing she could remember, she was sitting on the kitchen floor with blood running down her face. D was crying and in shock; she testified that she told defendant, "I need help," to which he responded, "You’re fine[,] there’s nothing wrong with you."⁴

D’s 16-year-old daughter, IC, was asleep in her bedroom but woke up when she heard arguing. IC recalled hearing D say, "Stop, you’re hurting me," and then a thud followed by silence. IC came out of her room and found D sitting on the kitchen floor, crying. Blood was running down her face and pooling on the floor where she was sitting. Defendant was standing in the hallway and appeared "very calm." D and IC called D’s friend, Saling, and then called 9-1-1. Saling headed to the apartment and arrived a few moments before emergency personnel. Saling saw a lot of blood from an "obvious head injury." D appeared dis-oriented. Saling cleaned up much of the blood because she did not want D’s young son, C, and his friend, A, who were asleep in the apartment, to see it when they awoke.

Shortly after, Sherwood Police Officer Chad Brinkman responded along with medical personal. Brinkman spoke to defendant and defendant told him that D fell. He also spoke to D, and she said that her socks were slippery and that she had slipped. He noted that she was crying and appeared to be in pain. As a result of her head injury, D went to the hospital.

Later that morning, Brinkman and another officer returned to the apartment because D’s ex-husband wanted ₆₉₇to retrieve C and A who were still asleep at the apartment. The police briefly spoke with defendant, and that interaction was recorded by police bodycam. The video evidence showed the police knocking at the door of the residence and, after defendant answered, explaining that D’s ex-husband had requested that C and A be delivered to him. The police also asked defendant about D and the severity of her injuries. Shortly after that encounter, defendant fled the apartment and did not return. Police tried to find defendant but were unsuccessful. Defendant contacted D by text, Facebook messenger, and email. In the emails, defendant expressed regret but did not admit to assaulting D. He also acknowledged that the police were looking for him. In February 2020, three months after the incident, defendant was arrested.

D sustained a two-inch-long, crescentshaped cut to the top of her head that required 12 staples to close. D testified that the injury took months to heal and that she suffered from mild headaches, confusion, and delayed speech. Ongoing pain left D unable to style or wash her hair properly for several months and required frequent use of Tylenol. The wound left a scar in D’s scalp where the hair would not grow.

The state charged defendant with second-and fourth-degree assault, among other crimes. During the trial, the court instructed all witnesses to wear masks as a precaution against COVID-19. The jury found defendant guilty of second-degree assault (Count 1) and two counts of fourth degree assault (Counts 3 and 5). The trial court merged the guilty verdict for Count 3 into Count 1.

II. ANALYSIS

We consider each assignment of error in the order they were raised.

A. First Assignment of Error—MJOA

[2] Defendant contends that the trial court erred by denying defendant’s MJOA on the second-degree assault charge, Count 1. Specifically, defendant argues that the state failed to present sufficient evidence of a "serious physical injury" under ORS 161.015(8), which requires a "serious ₆₉₈and protracted disfigurement" or "protracted impairment of health." Defendant admits that D’s scar is a protracted disfigurement, but contends that, under our case law, the injury was not "serious" because the scar is not prominent.

[3] We have addressed whether a scar qualifies as a serious disfigurement in several cases. See State v. Fields, 304 Or App 763, 766-67, 468 P.3d 1029 (2020) (compiling cases that discuss serious disfigurement). However, we have not established through a single principle whether a scar is considered a "serious disfigurement" and instead employ a case-by-case approach. In Fields, we concluded that a scar’s " ‘prominence’ is a factor to consider in determining the seriousness of the disfigurement * * * [but] must be considered along with the totality of the circumstances presented in each case." Id. at 765, 468 P.3d 1029. An injury is considered "prominent" if it is visible to other people under ordinary circumstances. Id.

We disagree with defendant that D’s injury was not a "serious disfigurement" under the totality of the circumstances here. D sustained a two-inch crescent-shaped gash to her scalp. That injury required 12 surgical staples to close and left behind a visible scar where the hair did not grow back. From that evidence, a rational factfinder could conclude that D suffered a serious and protracted disfigurement. That conclusion is consistent with our jurisprudence, in which we have held that injuries that require multiple surgical staples to close and that leave behind prominent scars several inches in diameter are sufficient to constitute "serious and protracted disfigurement." See State v. Kinsey, 293 Or App 208, 213-14, 426 P.3d 674 (2018) (concluding that two-inch scalp laceration, closed with five staples was legally sufficient to support a determination that D suffered a "protracted disfigurement," ORS 137.712(6)(c)(C), and therefore, a "significant physical injury," ORS 137.712(2)(b)(B)); State v. Alvarez, 240 Or App 167, 169-71, 246 P.3d 26 (2010), rev. den., 350 Or. 408, 256 P.3d 121 (2011) (holding that a scalp injury requiring four surgical staples and leaving behind a scar visible five months after an assault was a "protracted disfigurement" and a "serious physical injury"); Lambert v. Palmateer, 187 Or App 528, 537-38, 69 P.3d 725, rev. den., 336 Or. 125, 79 P.3d 882 (2003) ₆₉₉(concluding that "a two-inch-long, half-inch-wide divot [in the victim’s forehead]" constituted "serious and protracted disfigurement" (internal quotation marks omitted)).

Thus, because D’s injury could be considered a serious and protracted disfigurement, the trial court did not err in denying defendant’s MJOA.

B. Second Assignment of Error—Witnesses Wearing Masks While Testifying

[4] In his second assignment, defendant argues that the trial court erred by requiring witnesses to wear masks while testifying. Specifically, defendant contends that the trial court’s COVID-19 masking and social distancing precautions violated defendant’s constitutional right to confront witnesses.

[5, 6] The Sixth Amendment to the United States Constitution and Article I, section 11, of the Oregon Constitution both grant criminal defendants the right to a "face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016, 108 S Ct 2798, 101 L Ed 2d 857 (1988) (discussing federal confrontation right under Sixth Amendment to United States Constitution); State v. Copeland, 353 Or. 816, 827-30, 306 P.3d 610 (2013) (discussing Oregon confrontation right under Article I, section...