## Facts

- Around 3:00 a.m., an Oregon State Police officer at home went outside to investigate a man carrying a gas can in front of his house.
- The officer told the man, Christopher Glen Capwell, to stop; Capwell swung the gas can at him but missed.
- After the officer identified himself and tried to pat Capwell down, Capwell swung again and hit the officer’s arm with the gas can.
- The officer testified he felt pain and a “stinging sensation” from the blow.
- During a struggle after the arrest, Capwell swung the gas can and kicked at the officer; a kick to the officer’s arm knocked the officer’s nightstick from his hand.
- The officer testified the kick “hurt,” but he did not seek medical attention, miss work, or exhibit visible injury (e.g., bruises or cuts).

## Issues

1. Whether testimony describing a “stinging sensation” and that a kick “hurt,” without evidence of impairment, duration, or severity, is sufficient to prove “physical injury” (“impairment of physical condition or substantial pain”) for fourth-degree assault under Oregon law.

## Decision

- The court held the evidence was insufficient to prove the “physical injury” element of fourth-degree assault.
- The conviction for assault in the fourth degree was reversed.
- The case was remanded with instructions to enter judgment for attempted assault in the fourth degree and to resentence accordingly.

## Legal Principles

- Fourth-degree assault requires proof that the defendant caused “physical injury,” defined as “impairment of physical condition or substantial pain.”
- “Substantial pain” requires more than minor, fleeting discomfort; conclusory statements that an act “hurt,” without supporting evidence of intensity, duration, or consequence, may be inadequate.
- In evaluating “physical injury,” the factfinder may consider corroborating indicators such as visible injury, functional limitation, medical treatment, or other lasting effects.
- When the completed offense fails for lack of proof of injury but the evidence shows a substantial step toward causing physical injury, judgment may be entered for attempted assault.

## Conclusion

Because the record showed only transitory pain without evidence of impairment or substantial pain, the physical-injury element was not proved beyond a reasonable doubt; the proper disposition was entry of conviction for attempted fourth-degree assault.


State v. Capwell, 627 P.2d 905 (Or. Ct. App. 1981)