ORS 163.160¹
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) 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]

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

Law Review Cita­tions

82 OLR 1125 (2003)

Chapter 163

Law Review Cita­tions

51 OLR 427-637 (1972)

1 Legislative Counsel Committee, CHAPTER 163—Offenses Against Persons, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors163.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 163, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano163.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information