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State v. Qualls

Court of Appeals of Oregon
Dec 28, 2023
329 Or. App. 805 (Or. Ct. App. 2023)

Opinion

A175874

12-28-2023

STATE OF OREGON, Plaintiff-Respondent, v. JOHNNY LEE QUALLS, Defendant-Appellant.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.


This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 February 27, 2023

Lane County Circuit Court 21CR05773, 20CR47513; A175874 (Control), Charles M. Zennaché, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

Portion of judgment requiring defendant to pay $25 probation-violation fee reversed; otherwise affrmed.

POWERS, J.

In this consolidated criminal appeal, defendant appeals from a judgment convicting him of assault in the fourth degree constituting domestic violence (ORS 163.160(3)) in Case No. 21CR05773 and a judgment following the revocation of his probation in Case No. 20CR47513. In three assignments of error, defendant challenges the denial of his motion for judgment of acquittal (MJOA), the revocation of his probation, and the imposition of a $25 probation-violation fee. In the first two assignments of error, defendant contends that the trial court erred in denying the MJOA because there was insufficient evidence of the "physical injury" element of fourth-degree assault. Relatedly, defendant argues that the trial court erred in revoking probation based on his conviction. In the third assignment of error, defendant contends that the court erred in imposing a $25 probation-violation fee because the court did not orally pronounce the fee on the record at sentencing before imposing it in the judgment. As explained below, we conclude that the record contains sufficient evidence of a physical injury. We further conclude that the court erred when it imposed the $25 probation-violation fee. Accordingly, we reverse the $25 probation-violation fee and otherwise affirm.

We begin with defendant's challenge to the denial of the MJOA. We review the denial of an MJOA by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995). Because the parties are familiar with the procedural and factual background, we set out in this nonprecedential memorandum opinion only those facts necessary for our discussion of each assignment of error.

Under ORS 163.160(1)(a), fourth-degree assault requires that a defendant cause "physical injury" to another person. "Physical injury" is defined as "impairment of physical condition or substantial pain." ORS 161.015(7). At issue here is whether there was sufficient evidence of "substantial pain." "Substantial pain" includes "the degree and the duration of pain subjectively experienced by a victim." State v. Long, 286 Or.App. 334, 340, 399 P.3d 1063 (2017). The pain must be "ample" or "considerable" and is insufficient if it is "fleeting or inconsequential." Id. at 341 (internal quotation marks omitted); see also State v. Colpo, 305 Or.App. 690, 693-94, 472 P.3d 277, rev den, 367 Or. 290 (2020) (evaluating "substantial pain" under a subjective standard and citing cases). The evidence of pain need not be direct evidence; rather, non-speculative circumstantial evidence is sufficient. Long, 286 Or.App. at 341-42. On appeal, although defendant concedes that the pain was of a sufficient duration, he asserts that there was insufficient evidence about the degree of pain. We disagree with defendant's contention.

The record contains evidence that defendant and the victim were in the middle of an argument when defendant lifted the victim up, "threw [her] down on the floor," and started punching her in the chest and arm with a closed fist. The victim testified that her chest was sore following the incident and that the punches caused a bruise on her arm that did not go away for about three weeks. The victim told the investigating officers that she had a "slight headache" and testified that there were "knots" in her arm where defendant's punches landed and that her arm was tender and sore. The record also includes photographs of the bruise on the victim's arm. In addition, the victim reported the incident to the police about 14 hours after it happened and told the officers that the pain was about a three or four on a scale of one-to-10, with one being no pain at all and 10 being the worst pain.

Thus, after reviewing the record under our standard of review, we conclude that there is sufficient evidence for a rational factfinder to conclude that the victim suffered substantial pain. See, e.g., State v. Poole, 175 Or.App. 258, 261, 28 P.3d 643 (2001) (concluding that evidence that the defendant kicked the victim with a steel-toed boot, that the victim felt pain of three or four, that the pain was "sharp" for about an hour, and that the victim's arm was sore and throbbed for about twenty-four hours was sufficient to create a jury question as to substantial pain); State v. Pipkin, 245 Or.App. 73, 77, 261 P.3d 60 (2011), affd, 354 Or. 513, 316 P.3d 255 (2013) (concluding that evidence that the victim was still in pain an hour after the attack, that the victim's eye was swollen, that the victim's shoulder "popped" during the attack, and that the victim's back and elbow were hurt, was sufficient to create a jury question as to substantial pain). Accordingly, the trial court did not err in denying the MJOA and further did not err in revoking defendant's probation based on the new conviction.

Turning to the third assignment of error, defendant contends that the $25 probation-violation fee should be reversed because the fee was not orally pronounced in open court at sentencing before being imposed in the judgment. The state concedes the error, and we accept that concession. See State v. Jackson, 316 Or.App. 676, 501 P.3d 104 (2021) (accepting a similar concession). Defendant further argues that the proper remedy is to reverse the fee rather than remand for resentencing because the statute providing for the fee has been repealed. See former ORS 137.540(12)(a) (2019), repealed by Or Laws 2021, ch 653, § 3 (repealing the subsection providing for the imposition of a $25 probation-violation fee); see also Or Laws 2021, ch 653, § 8 (providing that the amendments to ORS 137.540 apply to sentences imposed on or after January 1, 2022). We agree with defendant's argument. Accordingly, because the court lacks authority to impose the fee on remand, we reverse the imposition of the fee without remanding for resentencing.

Portion of judgment requiring defendant to pay $25 probation-violation fee reversed; otherwise affirmed.


Summaries of

State v. Qualls

Court of Appeals of Oregon
Dec 28, 2023
329 Or. App. 805 (Or. Ct. App. 2023)
Case details for

State v. Qualls

Case Details

Full title:STATE OF OREGON, Plaintiff-Respondent, v. JOHNNY LEE QUALLS…

Court:Court of Appeals of Oregon

Date published: Dec 28, 2023

Citations

329 Or. App. 805 (Or. Ct. App. 2023)

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