State v. Brown

808

Submitted December 3, 2021, affirmed January 5, petition for review denied

May 5, 2022 (369 Or 705)

STATE OF OREGON,

Plaintiff-Respondent,

v.

DAVID MICHAEL BROWN,

Defendant-Appellant.

Multnomah County Circuit Court

17CR74637; A173208

502 P3d 1199

Gregory F. Silver, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Marc Brown, Deputy Public Defender, Office of

Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Michael A. Casper, Assistant Attorney

General, filed the brief for respondent.

Before James, Presiding Judge, and Lagesen, Chief Judge,

and Kistler, Senior Judge.

PER CURIAM

Affirmed.

Cite as 316 Or App 808 (2022) 809

PER CURIAM

Defendant appeals after he was found guilty in a

bench trial of second-degree assault on the theory that he

aided and abetted his codefendant in causing serious phys-

ical injury to the victim “by means of a dangerous weapon,

to wit, a shoe.” See ORS 161.015(1) (defining “dangerous

weapon” to mean “any weapon, device, instrument, mate-

rial or substance which under the circumstances in which

it is used, attempted to be used or threatened to be used, is

readily capable of causing death or serious physical injury”).

Relying on our decision in State v. Werder, 112 Or App 179,

182, 828 P2d 474 (1992), defendant argues that “the state

was required to prove beyond a reasonable doubt that ordi-

narily harmless footwear was used in a way that rendered it

capable of causing ‘serious physical injury.’ ” And, according

to defendant, the record is legally insufficient to support a

finding that his codefendant’s shoe was used in such a way,

let alone to support a finding that defendant knew the shoe

was a dangerous weapon and intended for his codefendant

to use the shoe to seriously injure the victim. We disagree

with defendant, conclude that the state presented sufficient

evidence for the trial court to make those findings, and

therefore affirm.

In reviewing defendant’s preserved challenge to the

sufficiency of the evidence to support his conviction, we

view the evidence in the light most favorable to the state

to determine whether a rational trier of fact, making rea-

sonable inferences, could find the essential elements of the

crime beyond a reasonable doubt. State v. Hedgpeth, 365 Or

724, 730, 452 P3d 948 (2019); State v. Gonzalez-Valenzuela,

358 Or 451, 454 n 1, 365 P3d 116 (2015) (agreeing “with

the long-standing case law from the Court of Appeals that,

under the circumstances [of a bench trial], defendant’s clos-

ing argument was the equivalent of a motion for judgment of

acquittal and, therefore, preserved the issue that defendant

presents”).

A detailed recitation of the facts would not benefit

the bench, bar, or public. In short, the state presented evi-

dence that defendant and another assailant were holding

the victim down during an assault in which his codefendant

810 State v. Brown

stomped more than once on the victim’s head; that the shoe

(which was introduced into evidence) had a flat, broad sole

made of hard rubber, with a “pretty firm edged sole”; that

the autopsy of the victim, who had been fatally shot during

the assault, revealed patterns on the left cheek, eye, and

right side of the forehead that were consistent with being

caused by the tread from a shoe; that multiple stomps was

“the most likely mechanism” of injury; and that people

stomp with greater force and more confidently when wear-

ing shoes as compared to bare feet. The record also included

testimony from defendant’s expert, a biomechanical engi-

neer, who testified that a “bare foot would also cause suf-

ficient forces to cause injury and possible death,” and “that

the forces generated during a stomp are independent of shoe

wear, gender, and fitness of the stomper.” However, defen-

dant’s expert declined to opine on the mentality of having

a shoe on and whether a person might stomp harder when

wearing a shoe.

Based on the evidence of the nature of the shoe,

the intensity of the stomping, and defendant’s role in the

assault, a reasonable trier of fact could infer not only that

his codefendant’s shoe was capable of causing serious phys-

ical injury when used to stomp the victim’s head, but also

that defendant knew that and intended that very use of the

shoe as part of the assault. As a witness testified, and the

trial court noted, there is a common sense aspect to the role

that a shoe can play when stomping: If there is a pile of glass

on the ground, a person with a shoe is more confident and

can strike harder because of the protection and surface it

provides in comparison to a bare foot. Thus, we agree with

the trial court’s rationale:

“Under the circumstances in which it was used in this case,

to repeatedly stomp on someone’s face while their head is

down on the ground, the shoe was readily capable of caus-

ing serious physical injury. That injury * * * is qualitatively

different than an injury which would be caused by stomp-

ing on someone’s face in bare feet.”

The evidence of the use for stomping and about the

nature of the shoe in this case make it readily distinguish-

able from Werder, as the trial court correctly recognized.

Cite as 316 Or App 808 (2022) 811

In Werder, we explained that the state had presented no

evidence about the shoe or the way in which the shoe was

used to kick the victim: There was “no tennis shoe * * * in

evidence,” “no photograph of a tennis shoe in evidence,” “no

description of a tennis shoe in evidence,” “no medical evi-

dence that says that injuries that [the victim] suffered were

caused by a tennis shoe,” and “[n]o witness testified that

defendant’s aggressive use of his tennis shoed feet could

have resulted in an injury that differed in any way from

that which would be inflicted by his unclad feet.” 112 Or App

at 182 (internal quotation marks omitted). Here, the record

is nearly the exact opposite. The shoe and descriptions of the

shoe were in evidence; there was medical evidence tying the

injuries to the use of the shoe; and there was evidence about

the intensity of the stomping and, generally, how stomping

in shoes is different from stomping in bare feet.

On this record, the trial court did not err in con-

cluding that the evidence was sufficient to find that the shoe

was a dangerous weapon, that defendant knew that, and

that defendant intended his codefendant to use the shoe

in that way as defendant and another assailant took turns

holding the victim down. See State v. Bell, 96 Or App 74,

78, 771 P2d 305, rev den, 308 Or 142 (1989) (“Although cow-

boy boots are not dangerous weapons per se, defendant con-

verted them into dangerous weapons within the meaning

of ORS 161.015(1) when he used them to kick a resisting

robbery victim in the upper body while she was lying on the

ground.”).

Affirmed.