STATE v. HOLLISTER (2001)

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 P.2d 1220, on recons. 169 Or.App. 78, 7 P.3d 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.

 PER CURIAM.