ORS 163.160
Assault in the fourth degree


(1)

A person commits the crime of assault in the fourth degree if the person:

(a)

Intentionally, knowingly or recklessly causes physical injury to another;

(b)

With criminal negligence causes physical injury to another by means of a deadly weapon; or

(c)

With criminal negligence causes serious physical injury to another who is a vulnerable user of a public way, as defined in ORS 801.608 (“Vulnerable user of a public way.”), by means of a motor vehicle.

(2)

Assault in the fourth degree is a Class A misdemeanor.

(3)

Notwithstanding subsection (2) of this section, assault in the fourth degree under subsection (1)(a) or (b) of this section is a Class C felony if the person commits the crime of assault in the fourth degree and:

(a)

The assault is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or victim;

(b)

The person has been previously convicted of violating this section or ORS 163.165 (Assault in the third degree), 163.175 (Assault in the second degree), 163.185 (Assault in the first degree), 163.187 (Strangulation) or 163.190 (Menacing), or of committing an equivalent crime in another jurisdiction, and the victim in the previous conviction is the same person who is the victim of the current crime;

(c)

The person has at least three previous convictions for violating this section or ORS 163.165 (Assault in the third degree), 163.175 (Assault in the second degree), 163.185 (Assault in the first degree), 163.187 (Strangulation) or 163.190 (Menacing) or for committing an equivalent crime in another jurisdiction, in any combination; or

(d)

The person commits the assault knowing that the victim is pregnant.

(4)

If a person is convicted of misdemeanor assault in the fourth degree constituting domestic violence as an element of the crime as described ORS 132.586 (Pleading domestic violence in accusatory instrument), the court shall ensure that the judgment document reflects that the conviction constitutes domestic violence.

(5)

For purposes of subsection (3) of this section, an assault is witnessed if the assault is seen or directly perceived in any other manner by the child. [1977 c.297 §5; 1997 c.694 §1; 1999 c.1073 §1; 2009 c.785 §3; 2015 c.639 §2; 2017 c.337 §1; 2021 c.581 §1]

Source: Section 163.160 — Assault in the fourth degree, https://www.­oregonlegislature.­gov/bills_laws/ors/ors163.­html.

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)

163.005
Criminal homicide
163.095
“Aggravated murder” defined
163.105
Sentencing options for aggravated murder
163.107
Murder in the first degree
163.109
Alternative proof of certain victims of murder in the first degree
163.111
Pleading, proof and stipulation regarding previous conviction element in prosecution for murder in the first degree
163.115
Murder in the second degree
163.117
Causing or aiding suicide as defense to charge of murder
163.118
Manslaughter in the first degree
163.125
Manslaughter in the second degree
163.135
Extreme emotional disturbance as affirmative defense to murder in the second degree
163.145
Criminally negligent homicide
163.147
Crime category classification for manslaughter in the second degree and criminally negligent homicide
163.149
Aggravated vehicular homicide
163.150
Sentencing for aggravated murder
163.155
Sentencing for murder of pregnant victim
163.160
Assault in the fourth degree
163.165
Assault in the third degree
163.168
Crime category classification for assault in the third degree
163.175
Assault in the second degree
163.185
Assault in the first degree
163.187
Strangulation
163.190
Menacing
163.191
Intimidation by display of a noose
163.192
Endangering a person protected by a Family Abuse Prevention Act restraining order
163.193
Assisting another person to commit suicide
163.195
Recklessly endangering another person
163.196
Aggravated driving while suspended or revoked
163.197
Hazing
163.200
Criminal mistreatment in the second degree
163.205
Criminal mistreatment in the first degree
163.206
Exceptions to criminal mistreatment
163.207
Female genital mutilation
163.208
Assaulting a public safety officer
163.211
Definitions for ORS 163.211 to 163.213
163.212
Unlawful use of an electrical stun gun, tear gas or mace in the second degree
163.213
Unlawful use of an electrical stun gun, tear gas or mace in the first degree
163.215
Definitions for ORS 163.215 to 163.257
163.225
Kidnapping in the second degree
163.235
Kidnapping in the first degree
163.245
Custodial interference in the second degree
163.257
Custodial interference in the first degree
163.261
Definitions for ORS 163.263 and 163.264
163.263
Subjecting another person to involuntary servitude in the second degree
163.264
Subjecting another person to involuntary servitude in the first degree
163.266
Trafficking in persons
163.269
Victim assertion of defense of duress
163.275
Coercion
163.285
Defense to coercion
163.305
Definitions
163.315
Incapacity to consent
163.325
Ignorance or mistake as a defense
163.345
Age as a defense in certain cases
163.355
Rape in the third degree
163.365
Rape in the second degree
163.375
Rape in the first degree
163.385
Sodomy in the third degree
163.395
Sodomy in the second degree
163.405
Sodomy in the first degree
163.408
Unlawful sexual penetration in the second degree
163.411
Unlawful sexual penetration in the first degree
163.412
Exceptions to unlawful sexual penetration prohibition
163.413
Purchasing sex with a minor
163.415
Sexual abuse in the third degree
163.425
Sexual abuse in the second degree
163.426
Crime category classification for sexual abuse in the second degree
163.427
Sexual abuse in the first degree
163.431
Definitions for ORS 163.431 to 163.434
163.432
Online sexual corruption of a child in the second degree
163.433
Online sexual corruption of a child in the first degree
163.434
Provisions applicable to online sexual corruption of a child
163.435
Contributing to the sexual delinquency of a minor
163.445
Sexual misconduct
163.448
Definitions for ORS 163.452 and 163.454
163.452
Custodial sexual misconduct in the first degree
163.454
Custodial sexual misconduct in the second degree
163.465
Public indecency
163.466
Classification of felony public indecency
163.467
Private indecency
163.472
Unlawful dissemination of an intimate image
163.476
Unlawfully being in a location where children regularly congregate
163.479
Unlawful contact with a child
163.505
Definitions for certain provisions of ORS 163.505 to 163.575
163.515
Bigamy
163.525
Incest
163.535
Abandonment of a child
163.537
Buying or selling a person under 18 years of age
163.545
Child neglect in the second degree
163.547
Child neglect in the first degree
163.555
Criminal nonsupport
163.565
Evidence of parentage
163.575
Endangering the welfare of a minor
163.577
Failing to supervise a child
163.580
Display of sign concerning sale of smoking devices
163.665
Definitions
163.670
Using child in display of sexually explicit conduct
163.676
Exemption from prosecution under ORS 163.684
163.682
Exceptions to ORS 163.665 to 163.693
163.684
Encouraging child sexual abuse in the first degree
163.686
Encouraging child sexual abuse in the second degree
163.687
Encouraging child sexual abuse in the third degree
163.688
Possession of materials depicting sexually explicit conduct of a child in the first degree
163.689
Possession of materials depicting sexually explicit conduct of a child in the second degree
163.690
Lack of knowledge of age of child as affirmative defense
163.693
Failure to report child pornography
163.700
Invasion of personal privacy in the second degree
163.701
Invasion of personal privacy in the first degree
163.702
Exceptions to ORS 163.700 and 163.701
163.705
Polygraph examination of victims in certain criminal cases prohibited
163.707
Forfeiture of motor vehicle used in drive-by shooting
163.709
Unlawful directing of light from a laser pointer
163.715
Unlawful use of a global positioning system device
163.730
Definitions for ORS 30.866 and 163.730 to 163.750
163.732
Stalking
163.735
Citation
163.738
Effect of citation
163.741
Service of stalking protective order
163.744
Initiation of action seeking citation
163.750
Violating a court’s stalking protective order
163.753
Immunity of officer acting in good faith
163.755
Conduct for which stalking protective order may not be issued
163.760
Definitions for ORS 163.760 to 163.777
163.763
Petition to circuit court for relief
163.765
Restraining order
163.767
Hearing
163.770
Appearance by telephone or electronic communication device
163.773
Enforcement of restraining order
163.775
Renewal and modification of restraining order
163.777
Fees or undertaking may not be required
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