concurring in part, dissenting in part.
The majority concludes on reconsideration in this post-conviction case that petitioner failed to establish that he had suffered prejudice as a result of the failure by his appellate attorney to assign error to the denial of his motion for a judgment of acquittal. It reasons that we would have affirmed the conviction on appeal if the denial of the motion had been assigned as error, so petitioner suffered no prejudice from counsel’s failure to assign that error on appeal. I respectfully disagree. I believe that we would have reversed the conviction on appeal if the denial of the motion had been assigned as error, so I would affirm the post-conviction court’s decision to grant relief to petitioner.
*540I agree with the majority’s decision to grant reconsideration and with most of its discussion of the substantive issues in this case. Where I part company with the majority is with its analysis of how we would have resolved an appeal in the criminal case that challenged the sufficiency of the evidence to support petitioner’s conviction for first-degree assault for having caused the victim, Boyum, to suffer serious and protracted disfigurement.
A person commits first-degree assault “if the person intentionally causes serious physical injury to another by means of a deadly or dangerous weapon.” ORS 163.185. “Serious physical injury” is defined in ORS 161.015(8) to mean
“physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”
After the close of the evidence in the criminal trial, the court convicted petitioner of first-degree assault, based on its finding that the injury that petitioner had inflicted had created a substantial risk of death and had caused serious and protracted disfigurement. As to the latter basis for the conviction, the court said on the record that Boyum had
“about a two-inch-long, half-inch-wide divot in his left forehead in the temporal region, which I can see easily at 40 feet, as he sits here and I look at him at this moment. This is something that is not hidden by any clothing. It’s in his head. This is serious and protracted disfigurement.”
The majority reasons that the court’s statement about the two-inch-long, half-inch-wide divot is supported by the demonstrative evidence that was submitted at trial when the prosecutor asked Boyum “to twist [his] chair a bit so that [he could] lean over close to the (j]udge so [that the judge could] get an opportunity to inspect the area” above Boyum’s left temple where he had been struck. Because it concludes that there is evidence to support the court’s finding about the injury, it then resolves whether a two-inch-long, half-inch-wide divot on Boyum’s forehead constitutes serious and protracted disfigurement. 187 Or App at 537-38. It concludes that it does, which leads it to conclude that we would have *541affirmed petitioner’s conviction for first-degree assault had the motion for judgment of acquittal been assigned as error on appeal.
The flaw in the majority’s reasoning is its treatment of the demonstrative evidence in the record. If the demonstrative evidence were the only evidence in the record, then the majority’s treatment of it would be correct. But it is not. At the same time that the prosecutor asked Boyum to turn toward the judge, the prosecutor asked Boyum a series of questions about the injury:
“Q. Now, with the Court’s permission, I would like you to briefly describe that so the record’s got — It’s about a one-inch scar to that region of your forehead; is that correct?
“A. Yes, sir.
“Q. Is that the area that you received four stitches to?
“A. Yes, sir.
“Q. Is there any belief on your part, that that scar is going to disappear?
“A. No, sir.”
The state also introduced as an exhibit a photograph of the scar, and defendant introduced medical records that described the injury as a two-centimeter cut that was treated and closed by four stitches. A two-centimeter'cut is a cut that is less than one inch in length. In sum, the evidence that could be reviewed on appeal, that is, the evidence other than the demonstrative evidence, indicates that the injury produced a one-inch scar, not a two-inch-long, half-inch-wide divot.1
Appellate courts have consistently emphasized the importance of creating a record that can permit meaningful *542appellate review of trial court rulings. That means that parties must take steps to ensure that demonstrative evidence is turned into tangible evidence that can be evaluated on appeal.2 The parties did that here. The prosecutor described the scar for the record as about a one-inch scar, and he introduced a photograph of it. Neither petitioner nor the court raised an issue about whether that evidence adequately conveyed the nature of the scar for purposes of appellate review. Because they did not, I believe that we are bound by that evidence in assessing whether petitioner would have prevailed on appeal in his challenge to his conviction for first-degree assault for causing Boyum to suffer serious and protracted disfigurement. We cannot treat the demonstrative evidence as support for a greater injury, because it would undo the very effort that the parties properly undertook to create a record that could be reviewed on appeal. Hence, I believe that the issue for us is whether a one-inch scar above Boyum’s left temple, rather than a two-inch-long, half-inch-wide divot, constitutes serious and protracted disfigurement.
I would conclude that it does not. While a one-inch scar above Boyum’s left temple is a visible disfigurement, it is not a disfigurement that a factfinder reasonably could find to be serious. Consequently, I believe that petitioner would have prevailed on appeal if appellate counsel had assigned error to the denial of the motion for judgment of acquittal, and that the post-conviction court properly granted relief to petitioner from his conviction. I respectfully dissent from the majority’s contrary conclusions.
Although the evidence other than the demonstrative evidence appears to be consistent in its characterization of the scar, the photograph that the state introduced at the criminal trial is not in the post-conviction record. Consequently, it is not possible to determine whether it contradicted or supported the other evidence about the scar that was subject to review on appeal. Presumably, if the photograph were helpful to defendant in the post-conviction proceeding, that is, if the photograph supported the existence of a two-inch-long, half-inch-wide divot in Boyum’s forehead, then defendant would have introduced it at the post-conviction trial.
See, e.g., Smith et ux v. Dressier et al, 212 Or 322, 323-24, 319 P2d 578(1957).