Offenses Against Persons
Assault in the fourth degree
Notes of Decisions
State is not required to elect between escape and assault charges prior to verdict. State v. Tron, 39 Or App 603, 592 P2d 1094 (1979)
Where only injury suffered by victim was torn shirt, there was no physical injury within meaning of this section. State v. Lindsey, 45 Or App 607, 609 P2d 386 (1980)
It was error for court to instruct jury that defendant could be found guilty of both fourth degree assault and careless driving for same motor vehicle accident. State v. Ritchey, 46 Or App 871, 613 P2d 501 (1980)
Where there was no evidence that victim suffered any impairment of his physical condition as result of defendant’s attack or that pain inflicted was anything more than fleeting sensation, no “physical injury” was shown and conviction under this section was improper. State v. Capwell, 52 Or App 43, 627 P2d 905 (1981)
One may not be convicted of both escape in first degree and assault when assault is part and parcel of escape. State v. Wigget, 75 Or App 474, 707 P2d 101 (1985)
Trial court did not err in denying motion for judgment of acquittal in prosecution under this section when evidence showed, inter alia, defendant was driving 40 miles an hour at time of rear-ending victims’ car at stop sign, defendant had consumed three ounces of vodka within hour before collision, defendant was driving without lights and defendant left scene of accident without contacting victims. State v. Van Walchren, 112 Or App 240, 828 P2d 1044 (1992), Sup Ct review denied
Child witnessing assault is not “victim” of assault. State v. Glaspey, 337 Or 558, 100 P3d 730 (2004)
Enumerated circumstances that make offense felony are alternative theories for obtaining single conviction for offense, not separate statutory provisions allowing multiple convictions. State v. Yong, 206 Or App 522, 138 P3d 37 (2006), Sup Ct review denied
Minor child who is “victim” of assault is not also “witness” of assault for purposes of elevating classification of offense. State v. Gatt, 210 Or App 117, 149 P3d 1220 (2006)
To be committed in “immediate presence” of child, offense must occur in same, physically unseparated space where child is located. State v. Cox, 212 Or App 637, 159 P3d 352 (2007)
Child directly perceives assault if child contemporaneously is aware through any of child’s senses that assault is occurring. State v. Rader, 348 Or 81, 228 P3d 552 (2010)
Where defendant is convicted of fourth-degree and second-degree assaults of same victim with no evidence of temporal pause between assaultive acts, guilty verdicts merge. State v. Glazier, 253 Or App 109, 288 P3d 1007 (2012), Sup Ct review denied
Person commits assault in fourth degree when person (1) engages in conduct, (2) is aware that conduct creates a substantial and unjustifiable risk of physically injuring another person, consciously disregards that risk and, by disregarding risk, grossly deviates from standard of care that reasonable person would have in that situation, and (3) conduct causes physical injury to another person. State v. Teitsworth, 257 Or App 309, 304 P3d 793 (2013), Sup Ct review denied
Defendant, who had previously been charged with and pleaded guilty to assault in fourth degree then entered deferred sentencing program, was previously convicted as required by this section. Where purpose of statute is to punish offender, not to protect defendant from deprivation of right or privilege, “convicted” includes finding of guilty and is not limited to formal judgment of conviction. State v. Turntine, 265 Or App 323, 336 P3d 513 (2014), Sup Ct review denied
For purposes of merger, fourth-degree assault and felony fourth-degree assault under this section are distinct criminal offenses, and specified circumstances that elevate fourth-degree assault to felony constitute alternative ways proving element of aggravation. State v. Cazarez-Lopez, 295 Or App 349, 434 P3d 468 (2018), Sup Ct review denied
Where no evidence establishes likely date of pregnancy termination, pregnancy prior to date of assault is not proof victim was pregnant on date of assault. State v. Olson, 296 Or App 687, 439 P3d 551 (2019)
Because proving elements of fourth-degree assault does not necessarily prove all elements of strangulation, charges for crimes do not merge. State v. Merrill, 303 Or App 107, 463 P3d 540 (2020), adhered to as modified on other grounds, 309 Or App 68, 481 P3d 441 (2021), Sup Ct review denied
Law Review Citations
82 OLR 1125 (2003)