[106] RICHARDSON, P. J.
Defendant appeals his conviction for menacing. ORS 163.190. He assigns error to the court’s overruling of his demurrer, to its rejection of two requested jury instructions and to the denial of his motions to suppress statements that he made to the police. We affirm.
On January 3, 1990, defendant and his next-door neighbor, Keeney, got into an argument in front of their houses. Defendant brandished a flashlight at Keeney, went inside his house and returned with a gun. Keeney went inside his house and called to report to the police that defendant had threatened him with a gun. The police arrived and surrounded defendant’s house. A dispatcher called defendant and ordered that he and his three sons emerge from the house. They did, and Officer Grady handcuffed defendant and placed him in a patrol car. Grady asked him if there were more people in the house and where any guns were located. Defendant said that there were no people inside but that there were firearms. He consented to a search for people. The police found no one in the house hut found a padlocked room. They broke into it and discovered a revolver, a sawed-off shotgun and other weapons.1
Defendant was charged with menacing and pointing a firearm at another. ORS 163.190; ORS 166.190. He was acquitted of the firearm charge.
Defendant argues that the court should have granted his demurrer to the complaint, because it did not specify the act that constituted menacing. An objection that the accusatory instrument is not definite and certain may be raised by demurrer. ORS 135.610; ORS 135.630(6); ORS 135.640. However, defendant waived the objection, because he failed to object before pleading not guilty. State of Oregon v. Holland, 202 Or 656, 667, 277 P2d 386 (1954).
Defendant argues that the court should have given a jury instruction that specified the act that the state relied on [107] to support the menacing charge.2 He asserts that the jury could have found him guilty of menacing, even though only some jurors might have concluded that he had pointed a gun at another, while others might have concluded that he had brandished a .flashlight. He relies on State v. Boots, 308 Or 371, 780 P2d 725 (1989), and argues that, under the court’s instruction, the jury might not have found unanimously that he committed any particular act that constituted menacing.
Boots is inapplicable. There, the defendant was convicted of aggravated murder, which is a murder that requires proof beyond a reasonable doubt of at least one of 17 different acts. See ORS 163.095. Here, in contrast, no one act must be proven to support a conviction for menacing under ORS 163.190(1):
“A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.”
The statute requires only that defendant acted by “word or conduct” and intentionally attempted to place Keeney in fear of imminent serious physical injury. The gravamen of the crime is the intentional attempt to place another person in fear. Defendant could have done several different acts and, if he intended thereby to attempt to place Keeney in fear, would have committed menacing. The jury did not have to agree [108] unanimously that he did any specific act that would cause fear in order to find him guilty of menacing.
For similar reasons, defendant is incorrect in arguing that the court should have instructed the jury that it had to find that he acted with the requisite mental state at the precise moment when he allegedly menaced Keeney. The court instructed the jury:
“To establish the crime of menacing, the state must prove beyond a reasonable doubt each of the following elements: * * * that Robert Terrance White, Sr., the defendant, intentionally attempted to place Frank Keeney in fear of imminent physical injury. A person acts intentionally or with intent when that person acts with a conscious objective either to cause a particular result or to engage in particular conduct. ’ ’
The instruction adequately informed the jury that it had to find that defendant acted intentionally when he attempted to put Keeney in fear of imminent physical injury. See State v. Leppanen, 253 Or 51, 453 P2d 172 (1969); see also State v. Shaw, 68 Or App 693, 697, 684 P2d 7 (1984).
In his fourth assignment, defendant contends that the court erred by not suppressing all statements he made after his arrest. He argues:
“Defendant submits that his arrest was unlawful and that, as a result, all of his alleged statements should have been suppressed.
“In Payton v. New York, 4[4]5 US 573, 100 SCt 1371, 63 LEd2d 639 (1980), the Supreme Court held that the fourth amendment prohibits a warrantless, non-consensual entry into a person’s residence for the purpose of making a routine felony arrest. Accord State v. Olson, 287 Or 157, 164-65, 598 P2d 670 (1979); State v. Peller, 287 Or 255, 260-62, 598 P2d 684 (1979).
‘ ‘In the instant case, the fact that the officers did not cross the threshold of defendant’s home is not dispositive. The command by Officer Grady via the communications center to have the members of defendant’s household file out one at a time onto the porch and down to the sidewalk where they were taken into custody, [sic] All of the officers had their weapons drawn. Therefore, defendant’s exposure to -view was not consensual on his part.”
[109] In the trial court and here, the principal authorities that defendant cites are Payton v. New York, 445 US 573, 100 S Ct 1371, 63 L Ed 2d 639 (1980), and State v. Hansen, 295 Or 78, 664 P2d 1095 (1983).
Payton involved two cases consolidated for appeal. In both, the police had probable cause to make a felony arrest. Without a warrant, officers entered each defendant’s residence and made an arrest. The Court held that the Fourth Amendment prohibits police from making an entry into a suspect’s house in order to make a routine arrest, unless they have at least consent or an arrest warrant, or there are exigent circumstances.
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[106] RICHARDSON, P. J.
Defendant appeals his conviction for menacing. ORS 163.190. He assigns error to the court’s overruling of his demurrer, to its rejection of two requested jury instructions and to the denial of his motions to suppress statements that he made to the police. We affirm.
On January 3, 1990, defendant and his next-door neighbor, Keeney, got into an argument in front of their houses. Defendant brandished a flashlight at Keeney, went inside his house and returned with a gun. Keeney went inside his house and called to report to the police that defendant had threatened him with a gun. The police arrived and surrounded defendant’s house. A dispatcher called defendant and ordered that he and his three sons emerge from the house. They did, and Officer Grady handcuffed defendant and placed him in a patrol car. Grady asked him if there were more people in the house and where any guns were located. Defendant said that there were no people inside but that there were firearms. He consented to a search for people. The police found no one in the house hut found a padlocked room. They broke into it and discovered a revolver, a sawed-off shotgun and other weapons.1
Defendant was charged with menacing and pointing a firearm at another. ORS 163.190; ORS 166.190. He was acquitted of the firearm charge.
Defendant argues that the court should have granted his demurrer to the complaint, because it did not specify the act that constituted menacing. An objection that the accusatory instrument is not definite and certain may be raised by demurrer. ORS 135.610; ORS 135.630(6); ORS 135.640. However, defendant waived the objection, because he failed to object before pleading not guilty. State of Oregon v. Holland, 202 Or 656, 667, 277 P2d 386 (1954).
Defendant argues that the court should have given a jury instruction that specified the act that the state relied on [107] to support the menacing charge.2 He asserts that the jury could have found him guilty of menacing, even though only some jurors might have concluded that he had pointed a gun at another, while others might have concluded that he had brandished a .flashlight. He relies on State v. Boots, 308 Or 371, 780 P2d 725 (1989), and argues that, under the court’s instruction, the jury might not have found unanimously that he committed any particular act that constituted menacing.
Boots is inapplicable. There, the defendant was convicted of aggravated murder, which is a murder that requires proof beyond a reasonable doubt of at least one of 17 different acts. See ORS 163.095. Here, in contrast, no one act must be proven to support a conviction for menacing under ORS 163.190(1):
“A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.”
The statute requires only that defendant acted by “word or conduct” and intentionally attempted to place Keeney in fear of imminent serious physical injury. The gravamen of the crime is the intentional attempt to place another person in fear. Defendant could have done several different acts and, if he intended thereby to attempt to place Keeney in fear, would have committed menacing. The jury did not have to agree [108] unanimously that he did any specific act that would cause fear in order to find him guilty of menacing.
For similar reasons, defendant is incorrect in arguing that the court should have instructed the jury that it had to find that he acted with the requisite mental state at the precise moment when he allegedly menaced Keeney. The court instructed the jury:
“To establish the crime of menacing, the state must prove beyond a reasonable doubt each of the following elements: * * * that Robert Terrance White, Sr., the defendant, intentionally attempted to place Frank Keeney in fear of imminent physical injury. A person acts intentionally or with intent when that person acts with a conscious objective either to cause a particular result or to engage in particular conduct. ’ ’
The instruction adequately informed the jury that it had to find that defendant acted intentionally when he attempted to put Keeney in fear of imminent physical injury. See State v. Leppanen, 253 Or 51, 453 P2d 172 (1969); see also State v. Shaw, 68 Or App 693, 697, 684 P2d 7 (1984).
In his fourth assignment, defendant contends that the court erred by not suppressing all statements he made after his arrest. He argues:
“Defendant submits that his arrest was unlawful and that, as a result, all of his alleged statements should have been suppressed.
“In Payton v. New York, 4[4]5 US 573, 100 SCt 1371, 63 LEd2d 639 (1980), the Supreme Court held that the fourth amendment prohibits a warrantless, non-consensual entry into a person’s residence for the purpose of making a routine felony arrest. Accord State v. Olson, 287 Or 157, 164-65, 598 P2d 670 (1979); State v. Peller, 287 Or 255, 260-62, 598 P2d 684 (1979).
‘ ‘In the instant case, the fact that the officers did not cross the threshold of defendant’s home is not dispositive. The command by Officer Grady via the communications center to have the members of defendant’s household file out one at a time onto the porch and down to the sidewalk where they were taken into custody, [sic] All of the officers had their weapons drawn. Therefore, defendant’s exposure to -view was not consensual on his part.”
[109] In the trial court and here, the principal authorities that defendant cites are Payton v. New York, 445 US 573, 100 S Ct 1371, 63 L Ed 2d 639 (1980), and State v. Hansen, 295 Or 78, 664 P2d 1095 (1983).
Payton involved two cases consolidated for appeal. In both, the police had probable cause to make a felony arrest. Without a warrant, officers entered each defendant’s residence and made an arrest. The Court held that the Fourth Amendment prohibits police from making an entry into a suspect’s house in order to make a routine arrest, unless they have at least consent or an arrest warrant, or there are exigent circumstances.
In State v. Hansen, supra, the police unlawfully entered the defendant’s residence, saw some marijuana, then “secured” the residence while an officer went to obtain a search warrant. The court held that the unlawful entry and securing of the premises constituted a seizure, for Fourth Amendment purposes, of the persons in the house and the contraband that was in plain view. Seizure of the house occurred because the officers entered it and prevented anyone from leaving or removing, hiding or disposing of contraband.
Those cases, and others that defendant cites, do not involve a question of the authority to make an arrest without a warrant. They involve entry of premises without a warrant. The distinction is material and is highlighted by the United States Supreme Court in Payton and in United States v. Watson, 423 US 411, 96 S Ct 820, 46 L Ed 2d 598 (1976).
In Watson, which predates Payton, the defendant was arrested while eating in a restaurant. He moved to suppress the evidence seized after his arrest on the ground that his arrest was unlawful, because it was a seizure without a warrant, in violation of the Fourth Amendment. The court held that the Fourth Amendment was not violated by a warrantless arrest in a public place if the police had probable cause to make the arrest. The court also held that it was immaterial whether there were exigent circumstances.
In Payton, the Court distinguished the holding in Watson, principally on the basis that, in Watson, the defendant was arrested in a place where he had no expectation of privacy. The critical point is not whether a person is seized [110] but where the seizure takes place. As the Court noted in Payton, “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” 445 US at 585 (quoting United States v. United States District Court, 407 US 297, 313, 92 Sup Ct 2125, 32 L Ed 2d 752 (1972)). Even if we were to agree with defendant that he and his house were seized when the police surrounded it and that that seizure was an arrest, there still was no entry into an enclave of defendant’s privacy. Certainly, the telephone call ordering him to come out of his house was not an entry.
Defendant makes a leap from his conclusion that he was arrested when the police were deployed around his house to the conclusion that, because he was in his home, he was therefore arrested in his home and the police needed a warrant, consent or exigent circumstances in order to make the arrest. That is patently wrong. See Payton v. New York, supra. Defendant’s arrest was not invalid, and the court correctly denied his motion to suppress on the basis of that contention.
In his final assignment, defendant argues that the statements that he made after he was advised of his rights should have been suppressed, because they were “tainted” by an earlier interrogation and statements that he made before he was advised. After defendant was taken into custody, an officer asked if there were other people in the house. Defendant said “no” and then gave his consent for the police to check for anyone else. The officer also asked defendant if there were guns in the house, and he responded affirmatively. Defendant seems to argue that a “warned” statement that follows an “unwarned” one is tainted as amatter of law. He is wrong. Oregon v. Elstad, 470 US 298, 105 S Ct 1285, 84 L Ed 2d 222 (1985).3 The trial court found that his statements made before the warnings were voluntary and not coerced. Defendant does not claim otherwise. The court did not err.
Affirmed.