FILED: February 28, 2001

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Appellant,

v.

CLINTON L. HOLLISTER,

Respondent.

(99-1269; CA A108197)

Appeal from Circuit Court, Clatsop County.

Philip Nelson, Judge.

Argued and submitted February 2, 2001.

Thomas C. Patton, Assistant Attorney General, argued the cause for appellant. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Elizabeth Baldwin argued the cause and filed the brief for respondent.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

PER CURIAM

Reversed and remanded.

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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