State v. Hollister

Court of Appeals of Oregon

State v. Hollister

20 P.3d 833, 172 Or. App. 759, 2001 Ore. App. LEXIS 267

CourtCourt of Appeals of Oregon

DecidedFebruary 28, 2001

Docket99-1269; CA A108197

StatusPublished

This text of 20 P.3d 833 (State v. Hollister) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hollister, 20 P.3d 833, 172 Or. App. 759, 2001 Ore. App. LEXIS 267 (Or. Ct. App. 2001).

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Opinion

PER CURIAM

The state appeals the trial court’s grant of defendant’s demurrer to count 1 of the indictment, which charged that he committed assault in the fourth degree by:

“unlawfully and recklessly caus[ing] physical injury to Crystal L. Williams by grabbing her neck and the defendant’s conduct was witnessed by [A.W.] the minor child of Crystal L. Williams.”

Under ORS 163.160(3)(b), the fact that a minor child of the victim witnessed such an assault makes the crime a Class C felony instead of a Class A misdemeanor. The trial court held that the indictment did not charge an offense because it alleged that the child witnessed “defendant’s conduct” rather than “the assault.” The court reasoned that the language of the indictment would permit conviction based on evidence that the child witnessed conduct other than the assault. We disagree.

In State v. Wright, 167 Or App 297, 999 P2d 1220, on recons 169 Or App 78, 7 P3d 738 (2000), rev den 331 Or 334 (2001), we held that a similar indictment survived a demurrer, although we did not focus on the issue that defendant raises in this case. This indictment is more specific than the one in Wright because it specifies the act that constitutes the alleged assault. In context, the reference to “defendant’s conduct” is to the immediately preceding description of the assault. The indictment therefore states a crime. Contrary to defendant’s argument on his cross-assignment of error, it is also sufficiently definite and certain.

Reversed and remanded.

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PER CURIAM

The state appeals the trial court’s grant of defendant’s demurrer to count 1 of the indictment, which charged that he committed assault in the fourth degree by:

“unlawfully and recklessly caus[ing] physical injury to Crystal L. Williams by grabbing her neck and the defendant’s conduct was witnessed by [A.W.] the minor child of Crystal L. Williams.”

Under ORS 163.160(3)(b), the fact that a minor child of the victim witnessed such an assault makes the crime a Class C felony instead of a Class A misdemeanor. The trial court held that the indictment did not charge an offense because it alleged that the child witnessed “defendant’s conduct” rather than “the assault.” The court reasoned that the language of the indictment would permit conviction based on evidence that the child witnessed conduct other than the assault. We disagree.

In State v. Wright, 167 Or App 297, 999 P2d 1220, on recons 169 Or App 78, 7 P3d 738 (2000), rev den 331 Or 334 (2001), we held that a similar indictment survived a demurrer, although we did not focus on the issue that defendant raises in this case. This indictment is more specific than the one in Wright because it specifies the act that constitutes the alleged assault. In context, the reference to “defendant’s conduct” is to the immediately preceding description of the assault. The indictment therefore states a crime. Contrary to defendant’s argument on his cross-assignment of error, it is also sufficiently definite and certain.

Reversed and remanded.

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Bluebook (online)

20 P.3d 833, 172 Or. App. 759, 2001 Ore. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hollister-orctapp-2001.

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