The opinion
Armstrong, J.
¶58 (dissenting in part and concurring in part) — I disagree with the lead opinion that the evidence is sufficient to prove that Jay Earl McKague committed second degree assault and respectfully dissent.
¶59 The issue before us is whether Kee Ho Chang’s injuries constitute substantial bodily harm. As the term “substantial” is not statutorily defined, the lead opinion correctly turned to dictionary definitions to identify its common understanding. Lead opinion at 502 n.7; Am. Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518 , 91 P.3d 864 (2004). The lead opinion’s misstep, however, is its selective choice of definition that renders the term redundant.
¶60 Our objective in construing a statute is to give effect to the legislature’s intent. Udall v. T.D. Escrow Servs., Inc., 159 Wn.2d 903, 909 , 154 P.3d 882 (2007). Statutes must be interpreted so that all the language used is given effect, with no portion rendered meaningless or superfluous. City of Seattle v. State, 136 Wn.2d 693, 701 , 965 P.2d 619 (1998). Where we give a term its plain and ordinary meaning by reference to a dictionary, we must avoid literal readings of a statute that would result in unlikely, absurd, or strained consequences. Tingey v. Haisch, 159 Wn.2d 652, 663-64 , 152 P.3d 1020 (2007).
¶61 A finding of substantial bodily harm requires that the State show an injury that involves a temporary but substantial disfigurement or one that causes temporary but substantial loss or impairment of function of any bodily part or organ. RCW 9A.04.110(4)(b). The lead opinion defines “substantial” as “ ‘something having substance or actual existence,’ ‘something having good substance or actual value,’ ‘something of moment,’ and ‘an important or material matter, thing, or part.’ ” Lead opinion at 502 n.7 (quoting Webster’s Third New International Dictionary 2280 (2002)). Accordingly, when the lead opinion applies this standard to the facts, it analyzes Chang’s injuries to see if they actually existed. But there is no difference in proving that a victim suffered bodily harm and proving that the victim’s injuries are actual. Even taking the most generous *521 definition afforded by the lead opinion — that the injuries be “important” — gives little meaning to an objective legal standard. To define “substantial” as such gives no effect to the word in the context of the statute, an interpretation the legislature could not have intended.
¶62 In fact, the word “substantial” is an important qualification in the statute that distinguishes second degree assault, a most serious offense under the Persistent Offender Accountability Act (POAA), chapter 9.94A RCW, from lesser degree assaults that require a showing of only bodily harm, such as third degree assault. See, e.g., RCW 9A.36.031(l)(d), (f). One definition omitted by the lead opinion defines “substantial” as “considerable in amount, value, or worth.” Webster’s Third New International Dictionary 2280 (2002). I believe that where the term “substantial” functions as an adjective that describes the extent of bodily harm, this definition properly reflects the legislature’s intent to differentiate degrees of injury.
¶63 Turning to the evidence presented by the State, I do not believe that it supports a finding of substantial bodily harm. First, the facial computed tomography (CT) scan, which established symptoms that may indicate a fracture, is insufficient to show substantial bodily harm. RCW 9A.04.110(4)(b), by its plain terms, requires the existence of a fracture, not the mere possibility of one.
¶64 Second, although bruising can constitute substantial bodily harm when it rises to the level of substantial disfigurement, State v. Hovig, 149 Wn. App. 1, 13 , 202 P.3d 318 (2009), the bruising in this case does not meet this standard. Relying on Hovig, the lead opinion claims that “visible bruising itself rises to the level of temporary substantial disfigurement.” Lead opinion at 502. This is a departure from the proposition in Hovig that “serious bruising can rise to the level of ‘substantial bodily injury 5 . . . .” Hovig, 149 Wn. App. at 13 (emphasis added). Admittedly, other courts have held that “[t]he presence of . . . bruise marks indicates temporary but substantial disfigurement.” State v. Ashcraft, 71 Wn. App. 444, 455 , 859 P.2d 60 (1993). *522 But these cases are factually distinguishable based on the severity of the bruising. As described below, Chang’s injuries are dramatically less serious than those described in cases where bruising constituted substantial bodily harm. Untethered from facts, the proposition that apparent bruising always amounts to substantial bodily harm runs the risk of rendering the term “substantial” redundant.
¶65 In Hovig, 149 Wn. App. at 13 , the court found sufficient evidence of substantial bodily harm based on photos of the victim’s bruising and medical testimony that the bruise would have lasted 7 to 14 days and caused pain. The photos in that case showed individual red and violet teeth marks from the base of the victim’s jaw to the top of his right cheek bone, yellow-brown bruising on the entire right cheek, bright red bruising on the victim’s left cheek, and scratch marks on the victim’s back and stomach. Hovig, 149 Wn. App. at 5-6 . In Ashcraft, 71 Wn. App. at 455 , the substantial disfigurement was proved by medical testimony that the bruise marks on the victim were consistent with being hit by a shoe. In State v. Atkinson, 113 Wn. App. 661, 666-67 , 54 P.3d 702 (2002), the court held that the defendant caused temporary but substantial disfigurement where the victim was scraped and bruised, her eyes were black and blue, and the white of one of her eyes was bloody.
¶66 Here, Chang’s bruising, while disfiguring, does not rise to the level of substantial disfigurement needed to support a conviction of second degree assault. The photographs of Chang do not show bruising that makes obvious the cause of his injury. See Hovig, 149 Wn. App. at 5 (bruise showing clear bite mark); Ashcraft, 71 Wn. App. at 455 (bruise indicating being hit with shoe). Nor was there any medical testimony or report describing the nature or extent of bruising. Detective Costello testified that the clearest photo of the bruising was from three days after the incident, which he described as showing Chang’s eye starting to turn yellow. This description falls significantly short of the injuries described in Ashcraft, Hovig, and Atkinson.
*523 ¶67 Moreover, Chang’s swollen eye, puffy face, head laceration, and abrasion on his cheek, while disfiguring, are not automatically substantial. Detective Costello described the swelling around his eyes as causing it to be “a little bit shut or closer shut than normal.” I Verbatim Report of Proceedings (VRP) at 49; II VRP at 175. This description also falls short of proving an injury that is “considerable in amount.” Likewise, Officer Samuelson’s testimony that Chang “obviously” had injuries and “looked like he was affected, affected by [the] blows,” I VRP at 36-37, can satisfy only the lax standard of showing actual injuries. Besides a concussion without loss of consciousness and neck and shoulder pain, his medical evaluation states only the existence of a scalp contusion. In the cases relied on by the lead opinion, medical testimony helped in assessing the extent of harm done to the victim. See Hovig, 149 Wn. App. at 13 (both persuasive photographic evidence and medical testimony were used to show substantial bodily harm); Ashcraft, 71 Wn. App. at 455 (doctors at Children’s Hospital testified to nature of injury). Here, there is no such medical evidence regarding any disfigurement. Without persuasive photographs and medical evidence, the mere fact that Chang sustained bruises and injuries is insufficient to support McKague’s conviction.
¶68 Finally, despite the lead opinion’s effort to qualify Chang’s concussion and shoulder and neck pain as substantial bodily harm, the evidence does not meet this standard. The State’s best evidence to this point — that Chang seemed “a little bit off,” that he was dizzy, and that he was unable to stand for a while — shows that he undoubtedly suffered temporary loss or impairment. Lead opinion at 497, 504-05. But again, we cannot assume the loss was substantial. Although the medical report shows that Chang suffered a concussion, he did not lose consciousness. Thus, the injury did not cause any loss that was established on the record. The lead opinion cites the patient’s discharge instructions to show that concussions can result in several different *524 types of losses and impairments. 19 Lead opinion at 505. This discharge information, however, can hardly count as evidence of Chang’s experience. The instructions speak in general terms of hypothetical symptoms (“a concussion may cause . . . .”), none of which were specifically connected to Chang’s medical evaluation. The discharge information is cautionary for patients to monitor symptoms and protect against complications. As such, it is too tenuous for a jury to infer that Chang suffered any of these effects. The evidence of slight disorientation does not meet the standard sufficient to sustain a second degree assault.
¶69 The lead opinion also reasons that severe pain supports a reasonable inference of substantial bodily injury. But “pain” is no longer a part of the definition of “substantial bodily injury” under RCW 9A.04.110(4)(b). Even if the change in statute does not preclude a finding that the pain caused some form of impairment, there is no evidence in the record to show that Chang’s neck and shoulder pain resulted in a substantial loss of the use of his arm and shoulder function. Although he testified to lingering pain, he did not attribute any loss of function to the pain. To do so is speculation, a conclusion foreclosed by the legislature when it deleted pain as an indicator of substantial bodily harm. Accordingly, I would reverse the conviction for second degree assault.
¶70 In affirming the conviction, the lead opinion is split on the sentencing issues under the POAA. Thus, as a matter of law, I concur with Judge Hunt that the federal constitution does not require that a jury find the existence of prior convictions beyond a reasonable doubt under the POAA.
The lead opinion offers extensive information from the Mayo Clinic explaining how a concussion, even without loss of consciousness, can interfere with how one’s brain works and injure one’s brain. Lead opinion at 504 n.8. This technical information regarding the effects of concussions, tantamount to expert medical testimony, should not be considered by this court as it was not presented to the jury-