Defendant and victim lived together. The victim also has got the victim’s two minor children, aged 11 and three, in a two-bedroom apartment. Defendant accused victim of sexual relationship with former boyfriend, who was the father of the victim’s younger daughter. On this ground the quarrel began. Defendant assaulted the victim in immediate presence of the child who directly become aware of the assaultive conduct.
The Oregon The State petitioned for review of decision of the Court of Appeals who reversed defendant’s conviction for felony fourth-degree assault, and remanded for a conviction of misdemeanor fourth-degree assault.
A person commits a fourth-degree assault if he/she intentionally, knowingly, or recklessly causes physical injury to a victim. It must be regarded as a Class C felony if, inter alia, “the assault is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or victim.”
(a) Whether the court of appeals did correctly interpret the term “witness”; and (b) if its interpretation of that term were correct, did the appellate court still err in finding that there was insufficient evidence to submit the charge of felony fourth-degree assault to the trier of fact?
Direct perception of an assault must be evident if the child contemporaneously becomes aware through any of the minor’s senses that one person was causing injury to another. “Very loud” sound of hitting victim’s head which was audible in the child’s bedroom are sufficient ground to conclude that the child either saw and perceived the assault. “The child need not be aware of the details or the specifics of the assault. The nature and types of evidence on this point are far too varied to attempt to catalog them, but it is important to emphasize that the evidence must be sufficient for the trier of fact to draw a reasonable inference not only that the child could have heard the sounds arising from the assault but that the child also was aware of those sounds and that they arose from assaultive conduct.”