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State v Capwell
Ct. of App. OR 1981
Author:- Sam Biers
Facts: Def was seen on the property of victim carrying a gas can. Upon approaching the def the def swung the gas can at victim but did not hit him. Victim was State trooper and identified himself as such. He noticed a bulge underneath def coat and attempted to do a weapons pat down. The def swung the gas can hitting him in the arm. Victim testified that he felt pain a stinging sensation. Victim placed def under arrest and def resisted. During the ensuing confrontation the victim was kicked and hit with the can again, a “couple of times,” and apparently this “hurt.” No bruising, no medical treatment involved.
Issue: Whether the evidence is sufficient to support conviction of assault in the fourth degree?
Holding: No
Procedure: Trial Ct conviction for 4th degree Assault. Denied Motion 4 acquittal. Reversed and remanded for entry of new judgment and resentencing.
Rule: Intentionally, knowingly or recklessly causes physical injury to another . . . Physical injury is defined as impairment of physical condition or substantial pain.”
Court Rationale: There is no evidence that the victim suffered any impairment of his physical condition as a result of defendant’s blows. Substantial pain means considerable pain. In this case, the victim testified that he had pain and that it hurt. There was no evidence of the degree of pain or that it was anything more than a fleeting sensation. The State was required to prove that the defendant’s blows caused either physical impairment or substantial pain. The defendant took a substantial step toward the commission of assault therefore attempted assault is the just and accurate charge.