State v. Shelley

929 P.2d 489 (1997)

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Nature of the Case

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Facts

D and Mario Gonzalez played 'pickup' basketball on opposing teams. At a pickup game, players take responsibility for calling their own fouls. Gonzalez fouled D several times. Gonzalez had a reputation for playing overly aggressive defense. Near the end of the evening, after trying to hit the ball away from D, he scratched d's face and drew blood. After getting scratched, D briefly left the game and then returned. According to Gonzalez, while he was waiting for play in the game to return to Gonzalez's side of the court, D suddenly hit him. Gonzalez did not see D punch him. D claims when he rejoined the game, he was running down the court and he saw Gonzalez make 'a move towards me as if he was maybe going to prevent me from getting the ball.' The move was with his hand up 'across my vision.' Angry, he 'just reacted' and swung. He said he hit him because he was afraid of being hurt, like the previous scratch. He testified that Gonzalez continually beat him up during the game by fouling him hard. A week later, a school police detective interviewed D. Gonzalez required emergency surgery to repair his jaw. Broken in three places, it was wired shut for six weeks. His treating physician believed that a 'significant' blow caused the damage. At trial, the court noted, 'In basketball . . . you consent to a certain amount of rough contact. If they were both going for a rebound and D's elbow or even his fist hit Gonzalez as they were both jumping for the rebound and Gonzalez'[s] jaw was fractured in exactly the same way . . . then you would have an issue.' The court ruled 'that as a matter of law, consent cannot be a defense to an assault.' It ruled that D could not claim consent because his conduct 'exceeded what is considered within the rules of that particular sport.' D was convicted and appealed.