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State v. Perks
Citations: 1993 Ore. App. LEXIS 200; 118 Or. App. 336; 847 P.2d 866Docket: C90-11-36716; CA A71483
Court: Court of Appeals of Oregon; February 23, 1993; Oregon; State Appellate Court
The court reversed a pretrial order that dismissed a prosecution for fourth-degree assault on former jeopardy grounds. The defendant had been charged with second-degree assault but was acquitted of that charge, with the jury failing to reach a verdict on the lesser included offense of fourth-degree assault. The defendant contended that the indictment was null due to his acquittal and that the state could not retry him for the lesser offense since it was not explicitly charged. However, the court clarified that a jury's verdict of not guilty on the primary charge does not preclude retrial for a lesser included offense, which can be implied within the original indictment. The court referenced Oregon statutes, indicating that lesser included offenses do not need to be explicitly stated in the indictment, and that the jury's inability to reach a verdict allows for retrial under ORS 131.525. The dissent's argument regarding the need for an amendment to the indictment was rejected, as the court reaffirmed that the request for a lesser included instruction effectively allows for simultaneous prosecution of both the primary and lesser offenses. The case was reversed and remanded for retrial on the lesser charge. ORS 163.175 defines second-degree assault as the intentional or knowing infliction of serious physical injury to another, or the intentional or knowing infliction of physical injury using a deadly or dangerous weapon, or the reckless infliction of serious physical injury with such a weapon in circumstances showing extreme indifference to human life. This offense is classified as a Class B felony. ORS 163.160 outlines fourth-degree assault, which occurs when a person intentionally, knowingly, or recklessly causes physical injury to another, or causes such injury with criminal negligence using a deadly weapon. Fourth-degree assault is classified as a Class A misdemeanor. ORS 136.460 allows a jury to acquit a defendant of the charged degree of crime while convicting them of any inferior degree or an attempt of such crime. ORS 136.465 permits a conviction for any crime that is necessarily included in the charged offense or for an attempt to commit that crime.