2015 ORS 163.175¹
Assault in the second degree

(1) A person commits the crime of assault in the second degree if the person:

(a) Intentionally or knowingly causes serious physical injury to another;

(b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon; or

(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.

(2) Assault in the second degree is a Class B felony. [1971 c.743 §93; 1975 c.626 §1; 1977 c.297 §2; 2005 c.22 §110]

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 defendants 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 (General definitions), sec­ond de­gree assault con­vic­­tion was modified to at­tempted sec­ond de­gree assault (ORS 161.405 (Attempt described)). 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 (Menacing)) 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 defendants 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)

Notes of Decisions

Where state relied on precisely same act to es­tab­lish use-physical-force ele­ment of robbery and cause-physical-injury ele­ment of assault, defendants assault con­vic­­tion merged into robbery con­vic­­tion. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

Law Review Cita­tions

51 OLR 429, 432, 482-486 (1972)

Chapter 163

Law Review Cita­tions

51 OLR 427-637 (1972)

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1 Legislative Counsel Committee, CHAPTER 163—Offenses Against Persons, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 163, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.