State V Jordan
108 July 23, 2025 No. 654
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID MARKEIZES JORDAN,
aka David M Jordan,
Defendant-Appellant.
Washington County Circuit Court
23CR37904; A182591
Oscar Garcia, Judge.
Submitted May 15, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Robert C. Hansler, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 342 Or App 108 (2025) 109
TOOKEY, P. J.
Defendant appeals from a judgment of conviction
for one count of fourth-degree assault constituting domestic
violence, ORS 163.160(2) (Count 1); one count of harassment,
ORS 166.065(3) (Count 2); and one count of second-degree
criminal mischief, ORS 164.354 (Count 8).1 In his first
assignment of error, defendant challenges the trial court’s
denial of his motion for judgment of acquittal (MJOA) on
Count 1, arguing that the evidence of “physical injury” was
insufficient to go to the jury. In his second through fifth
assignment of error, defendant challenges various condi-
tions of his probation. We affirm.
Motion for Judgment of Acquittal. “On review of the
denial of an MJOA, we view the evidence in the light most
favorable to the state to determine whether a rational trier
of fact, making reasonable inferences, could have found the
essential elements of the crime proved beyond a reasonable
doubt.” State v. Soto-Martinez, 315 Or App 79, 80, 499 P3d
108 (2021), rev den, 369 Or 211 (2022) (internal quotation
marks omitted).
Under ORS 163.160(1)(a), a person commits fourth-
degree assault when they “[i]ntentionally, knowingly, or
recklessly cause[ ] physical injury to another.” “Physical
injury” is defined as “impairment of physical condition or
substantial pain.” ORS 161.015(7). “Substantial pain,” in
turn, “encompasses both the degree and duration of pain
suffered by the victim.” State v. Guzman, 276 Or App 208,
212, 366 P3d 816 (2016) (internal quotation marks omitted).
That is, “evidence establishing substantial pain must meet
both a degree or intensity threshold as well as a durational
threshold.” State v. Colpo, 305 Or App 690, 693, 472 P3d 277,
rev den, 367 Or 290 (2020). To meet the degree or intensity
threshold, the pain “must be considerable or ample and can-
not be inconsequential.” Id. at 694 (internal quotation marks
omitted). And to satisfy the durational threshold, the pain
“cannot be fleeting and must be more than momentary.” Id.
(internal quotation marks omitted).
1
Defendant was acquitted of three counts of menacing, as well as an addi-
tional count of fourth-degree assault and an additional count of harassment.
110 State v. Jordan
The reasonable inferences that may be drawn from
the evidence in any case depend on what the evidence was.
Guzman, 276 Or App at 212. And, in cases concerning “sub-
stantial pain” in which the victim has not testified, provided
neutral testimony, or testified that the pain was not severe
or prolonged, “the set of reasonable inferences that may be
derived from the evidence is determinative as to whether
the issue is submitted to the trier of fact.” Id. at 213. “The
court’s role is to determine—as a matter of law—where the
sometimes faint line must be drawn between those infer-
ences that are reasonable and those that are too specula-
tive.” Id. (internal quotation marks omitted).
Having reviewed the record in this case, we con-
clude that there was sufficient evidence that the victim’s
pain was both severe and lasting to submit the question of
whether defendant caused the victim “substantial pain,”
and ultimately “physical injury,” to the jury.
Conditions of Probation. The state contends that
defendant’s claims regarding the conditions of his probation
are moot. “A case becomes moot ‘when a court’s decision will
no longer have a practical effect on the rights of the parties.’ ”
State v. Lomack, 307 Or App 596, 598, 477 P3d 1222 (2020)
(quoting State v. K. J. B., 362 Or 777, 785, 416 P3d 291 (2018)).
After defendant filed his opening brief in this
appeal, the trial court entered a judgment revoking defen-
dant’s probation. Defendant has not appealed that judg-
ment, which effectively eliminates any direct consequences
of those conditions on him in the future, nor has he asserted
any collateral consequences of the probation conditions that
would prevent his challenges to them from now being moot.
Accordingly, we conclude that defendant’s second through
fifth assignments of error are moot, and we, therefore, do
not address them. See Lomack, 307 Or App at 598-600 (con-
cluding that the defendant’s challenge to a probation con-
dition was moot where his probation was revoked while his
appeal was pending, he did not appeal the probation revoca-
tion judgment and thus could not “obtain any relief from the
direct consequence of the imposition of that probation con-
dition: the revocation of his probation for violating it,” and
the collateral consequences he asserted were insufficient to
Nonprecedential Memo Op: 342 Or App 108 (2025) 111
establish that the judgment had a continuing, nonspecula-
tive practical effect on him (emphasis in original)).
Affirmed.