State v. Shouse

ARMSTRONG, J.,

dissenting.

The majority asserts that, under OAR 213-04-002 App 3, a factfinder must focus only on “the isolated exchange in which the victim was” assaulted in order to decide whether the victim precipitated the assault. 148 Or App at 280. Because I believe that the factfinder should be allowed to consider all of the relevant evidence in making that decision, I dissent.

Under the sentencing guidelines, if the state pleads and proves that the victim of an assault “did not substantially contribute to the commission of the offense by precipitating the attack,” then the defendant’s crime is considered a subcategory 10 crime on the crime seriousness scale. If the state does not plead and prove that, the assault is considered a subcategory 9 crime. The distinction is intended to emphasize “that an unprovoked assault is a more serious offense” than a provoked assault. State v. Guthrie, 112 Or App 102, 106, 828 P2d 462 (1992).

Generally, it is up to the factfinder to “evaluate the circumstances and determine the culpability, if any, that a *281 victim may share in provoking an assault.” Id. The majority concludes that past events could never affect that evaluation. It bases that opinion on two preliminary conclusions. First, it concludes that

“the phrase ‘precipitating the attack’ connotes a sense of immediacy. To precipitate an assault, the victim must take some identifiable action to which the defendant responds by attacking him or her.”

148 Or App at 279. Second, it determines that “past threats and events have no bearing on whether a confrontation suddenly erupts in violence.” 148 Or App at 280. While I agree with the majority’s first premise, I disagree with its second. Events that precede those “at or near the actual attack” can be relevant in determining whether the victim precipitated the attack. When viewed in isolation, a comment or act may appear to be innocuous. When viewed in the context of the parties’ past interactions, however, the same comment or act could be provocative.

An example illustrates the point. Assume that the defendant and the victim have had a hostile relationship for years. For months before the assault, the victim called the defendant several times each day to harass and threaten her. The defendant obtained a restraining order against the victim that prohibited him from calling her or coming within 100 feet of her home. They then run into each other at a grocery store and, again, the victim threatens the defendant. Upset, the defendant tells the victim that if she ever sees him anywhere near her house, she will “take care of him” herself. The victim knows that the defendant is threatening physical violence. Because he outweighs her by one hundred pounds, he is not concerned by her threat. In fact, he decides that it would be sweet revenge if he could get her arrested for assault. Therefore, for the express purpose of provoking an assault, a few days later the victim goes over to the defendant’s house and stands outside on the sidewalk. Enraged, the defendant runs outside and stabs the victim.

The defendant is convicted of assault in the first degree. The state also alleges that the victim did not substantially contribute to the offense by precipitating the assault. Under the majority’s standard, the factfinder would have to *282 limit its inquiry “to the context of the isolated exchange in which the victim was” assaulted. 148 Or App at 280. That is, the factfinder would have to consider whether the victim precipitated the assault by standing outside the defendant’s home. That behavior, considered in isolation, is completely innocuous. As a result, although the victim intentionally provoked the assault, under the majority’s view, the factfinder would have to conclude that the victim did not. Therefore, the defendant’s crime would be elevated to subcategory 10 on the crime seriousness scale. In the context of the facts described, however, a factfinder might find that standing outside the defendant’s home did precipitate the assault. Because the evidence of the parties’ past interactions would be relevant to that determination, the factfinder should be permitted to consider it.

Likewise, in this case, the evidence about the parties’ past relationship informs the events that took place the evening of the assault. The victim acknowledged that he and the defendant had been constantly harassing and threatening each other “at the same level” during the four months before the assault. Defendant testified that she believed that the victim wanted to fight her. The victim testified that he made it clear to defendant that he would do what was necessary to protect himself, Mary and her family. Although the victim helped Mary obtain a restraining order against defendant, and frequently called the police to report that defendant was violating it, he still invited her down to the house that evening. Far from having “no bearing” on whether the confrontation on February 14, 1994, “suddenly erupted in violence,” those past threats and events provide an essential context for understanding what took place that evening. The jury would have been better able to evaluate the victim’s actions and whether those actions were intended to, or could be reasonably expected to, provoke an assault if it had been permitted to consider those actions in context. The court erred, therefore, when it instructed the jury that, in making its determination on that issue, it could consider only the “events at or near the time of the actual attack.”

The error is significant. The crime seriousness scale is one axis on the sentencing guidelines grid that guides the court in determining a convicted defendant’s presumptive *283 sentence. OAR 213-04-001, App 1. The criminal history scale serves as the horizontal axis on the grid. Id. Defendant’s criminal history placed her in category F on the criminal history scale. Therefore, defendant faced a presumptive sentence between either 41 to 45 months or 71 to 80 months, depending on whether the assault she committed was categorized as a category 9 or a category 10 crime. Id. Because the court told the jury not to consider all of the relevant evidence in making the finding that would determine where defendant’s crime would be placed on the crime seriousness scale, we should remand the case to retry that issue. See State v. Boots, 315 Or 572, 848 P2d 76, cert den 510 US 1013 (1993).