ORS 163.175
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]

Source: Section 163.175 — Assault in the second degree, https://www.­oregonlegislature.­gov/bills_laws/ors/ors163.­html.

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 defendant’s 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, second degree assault conviction was modified to attempted second degree assault (ORS 161.405). 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) 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 defendant’s 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)

163.005
Criminal homicide
163.095
“Aggravated murder” defined
163.105
Sentencing options for aggravated murder
163.107
Murder in the first degree
163.109
Alternative proof of certain victims of murder in the first degree
163.111
Pleading, proof and stipulation regarding previous conviction element in prosecution for murder in the first degree
163.115
Murder in the second degree
163.117
Causing or aiding suicide as defense to charge of murder
163.118
Manslaughter in the first degree
163.125
Manslaughter in the second degree
163.135
Extreme emotional disturbance as affirmative defense to murder in the second degree
163.145
Criminally negligent homicide
163.147
Crime category classification for manslaughter in the second degree and criminally negligent homicide
163.149
Aggravated vehicular homicide
163.150
Sentencing for aggravated murder
163.155
Sentencing for murder of pregnant victim
163.160
Assault in the fourth degree
163.165
Assault in the third degree
163.168
Crime category classification for assault in the third degree
163.175
Assault in the second degree
163.185
Assault in the first degree
163.187
Strangulation
163.190
Menacing
163.191
Intimidation by display of a noose
163.192
Endangering a person protected by a Family Abuse Prevention Act restraining order
163.193
Assisting another person to commit suicide
163.195
Recklessly endangering another person
163.196
Aggravated driving while suspended or revoked
163.197
Hazing
163.200
Criminal mistreatment in the second degree
163.205
Criminal mistreatment in the first degree
163.206
Exceptions to criminal mistreatment
163.207
Female genital mutilation
163.208
Assaulting a public safety officer
163.211
Definitions for ORS 163.211 to 163.213
163.212
Unlawful use of an electrical stun gun, tear gas or mace in the second degree
163.213
Unlawful use of an electrical stun gun, tear gas or mace in the first degree
163.215
Definitions for ORS 163.215 to 163.257
163.225
Kidnapping in the second degree
163.235
Kidnapping in the first degree
163.245
Custodial interference in the second degree
163.257
Custodial interference in the first degree
163.261
Definitions for ORS 163.263 and 163.264
163.263
Subjecting another person to involuntary servitude in the second degree
163.264
Subjecting another person to involuntary servitude in the first degree
163.266
Trafficking in persons
163.269
Victim assertion of defense of duress
163.275
Coercion
163.285
Defense to coercion
163.305
Definitions
163.315
Incapacity to consent
163.325
Ignorance or mistake as a defense
163.345
Age as a defense in certain cases
163.355
Rape in the third degree
163.365
Rape in the second degree
163.375
Rape in the first degree
163.385
Sodomy in the third degree
163.395
Sodomy in the second degree
163.405
Sodomy in the first degree
163.408
Unlawful sexual penetration in the second degree
163.411
Unlawful sexual penetration in the first degree
163.412
Exceptions to unlawful sexual penetration prohibition
163.413
Purchasing sex with a minor
163.415
Sexual abuse in the third degree
163.425
Sexual abuse in the second degree
163.426
Crime category classification for sexual abuse in the second degree
163.427
Sexual abuse in the first degree
163.431
Definitions for ORS 163.431 to 163.434
163.432
Online sexual corruption of a child in the second degree
163.433
Online sexual corruption of a child in the first degree
163.434
Provisions applicable to online sexual corruption of a child
163.435
Contributing to the sexual delinquency of a minor
163.445
Sexual misconduct
163.448
Definitions for ORS 163.452 and 163.454
163.452
Custodial sexual misconduct in the first degree
163.454
Custodial sexual misconduct in the second degree
163.465
Public indecency
163.466
Classification of felony public indecency
163.467
Private indecency
163.472
Unlawful dissemination of an intimate image
163.476
Unlawfully being in a location where children regularly congregate
163.479
Unlawful contact with a child
163.505
Definitions for certain provisions of ORS 163.505 to 163.575
163.515
Bigamy
163.525
Incest
163.535
Abandonment of a child
163.537
Buying or selling a person under 18 years of age
163.545
Child neglect in the second degree
163.547
Child neglect in the first degree
163.555
Criminal nonsupport
163.565
Evidence of parentage
163.575
Endangering the welfare of a minor
163.577
Failing to supervise a child
163.580
Display of sign concerning sale of smoking devices
163.665
Definitions
163.670
Using child in display of sexually explicit conduct
163.676
Exemption from prosecution under ORS 163.684
163.682
Exceptions to ORS 163.665 to 163.693
163.684
Encouraging child sexual abuse in the first degree
163.686
Encouraging child sexual abuse in the second degree
163.687
Encouraging child sexual abuse in the third degree
163.688
Possession of materials depicting sexually explicit conduct of a child in the first degree
163.689
Possession of materials depicting sexually explicit conduct of a child in the second degree
163.690
Lack of knowledge of age of child as affirmative defense
163.693
Failure to report child pornography
163.700
Invasion of personal privacy in the second degree
163.701
Invasion of personal privacy in the first degree
163.702
Exceptions to ORS 163.700 and 163.701
163.705
Polygraph examination of victims in certain criminal cases prohibited
163.707
Forfeiture of motor vehicle used in drive-by shooting
163.709
Unlawful directing of light from a laser pointer
163.715
Unlawful use of a global positioning system device
163.730
Definitions for ORS 30.866 and 163.730 to 163.750
163.732
Stalking
163.735
Citation
163.738
Effect of citation
163.741
Service of stalking protective order
163.744
Initiation of action seeking citation
163.750
Violating a court’s stalking protective order
163.753
Immunity of officer acting in good faith
163.755
Conduct for which stalking protective order may not be issued
163.760
Definitions for ORS 163.760 to 163.777
163.763
Petition to circuit court for relief
163.765
Restraining order
163.767
Hearing
163.770
Appearance by telephone or electronic communication device
163.773
Enforcement of restraining order
163.775
Renewal and modification of restraining order
163.777
Fees or undertaking may not be required
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