Assault in the second degree
Source:
Section 163.175 — Assault in the second degree, https://www.oregonlegislature.gov/bills_laws/ors/ors163.html.
Notes of Decisions
Where indictment charged defendant with first degree assault for placing child in scalding hot water, indictment was deemed to also charge lesser included offense of second degree assault. State v. Jacobs, 34 Or App 755, 579 P2d 881 (1978), Sup Ct review denied
Evidence that after defendant’s wife became involved in argument with bartender defendant separated bartender from fracas and began hitting bartender on head and body was sufficient to support jury finding that defendant had not justifiably acted in defense of his wife. State v. Gibson, 36 Or App 111, 583 P2d 584 (1978), Sup Ct review denied
Whether instrument constitutes dangerous weapon is not established by resulting injury but rather by injury that could have resulted under circumstances, so whether can opener was dangerous weapon is jury question. State v. Gale, 36 Or App 275, 583 P2d 1169 (1978)
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)
It was error to convict under this section when indictment charged defendant with first degree robbery and neither statutory scheme nor indictment necessarily included the crime of this section. State v. Cartwright, 40 Or App 593, 595 P2d 1289 (1979)
Where victim incurred no physical injury within meaning of ORS 161.015, second degree assault conviction was modified to attempted second degree assault (ORS 161.405). State v. Rice, 48 Or App 115, 616 P2d 538 (1980), Sup Ct review denied
Because reference to extreme indifference to value of human life is not unconstitutionally vague, it does not violate due process or violate ex post facto principles. State v. Corpuz, 49 Or App 811, 621 P2d 604 (1980)
Where indictment alleged that defendant had intentionally caused physical injury, but it did not allege that defendant had attempted to place another in fear of imminent serious physical injury, menacing (ORS 163.190) was not lesser included offense of assault in second degree. State v. Moroney, 289 Or 597, 616 P2d 471 (1980)
Where as result of single act of recklessness defendant injured two persons, he was properly charged with and convicted of two assaults, but could be sentenced for only one assault. State v. Lopez, 56 Or App 179, 641 P2d 596 (1982), Sup Ct review denied
It was proper to separately sentence for assault and failure to perform duties of a driver involved in an accident ([former] ORS 483.602), since knowingly leaving accident scene was not part of reckless activity which resulted in assaults but was intended to accomplish separate result. State v. Lopez, 56 Or App 179, 641 P2d 596 (1982), Sup Ct review denied
Whether person who behaves with reckless culpable mental state also exhibits additional element of conduct manifesting “extreme indifference” to value of human life is determined by all circumstances surrounding conduct. State v. Boone, 294 Or 630, 661 P2d 917 (1983)
Assault in second degree is not lesser included offense of robbery in first or second degree. State v. Taylor, 97 Or App 261, 774 P2d 1121 (1989)
In order for jury to infer that tennis shoe was dangerous weapon, state was required to prove beyond reasonable doubt that ordinarily harmless footwear was used in way that could cause serious physical injury. State v. Werder, 112 Or App 179, 828 P2d 474 (1992)
Assault in second degree is not lesser included offense to assault in first degree. State v. Cook, 163 Or App 578, 989 P2d 474 (1999)
“Circumstances” manifesting extreme indifference to value of human life include all relevant circumstances, not just nature of injury inflicted. State v. Cook, 163 Or App 578, 989 P2d 474 (1999)
To prove that defendant acted “knowingly,” state must prove only that defendant was aware of assaultive nature of conduct, not that defendant was aware of likely result. State v. Barnes, 329 Or 327, 986 P2d 1160 (1999)
Third degree assault is not lesser included offense to second degree assault. State v. McNair, 179 Or App 308, 39 P3d 284 (2002); State v. Harris, 230 Or App 83, 213 P3d 859 (2009)
Where person causes serious physical injury to another with dangerous or deadly weapon, crime of assault in second degree does not merge with crime of unlawful use of weapon. State v. Alvarez, 240 Or App 167, 246 P3d 26 (2010), Sup Ct review denied
Crime is “crime of violence” for purposes of federal career offender sentencing guidelines. United States v. Crews, 621 F3d 849 (9th Cir. 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
Reversal of conviction for assault was required where use of jury instruction requiring jury to consider circumstances which reflect defendant’s lack of concern for social and legal responsibility allowed jury to conclude that recklessness alone was sufficient to prove “extreme indifference to the value of human life” as required under this section. State v. Downing, 276 Or App 68, 366 P3d 1171 (2016)
COMPLETED CITATIONS (for former ORS 163.250): State v. Wolberg, 5 Or App 295, 483 P2d 104 (1971), Sup Ct review denied, cert. denied, 404 US 1015 (1972)
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