الخطوات الجادة لاعادة محاكمة مغتصب محمد !!

Quote: ORS 163.160(3)(c) provides that the offense of assault in the fourth degree is a Class C felony if the assault is "witnessed by," among others, the defendant's minor child. In this case, defendant assaulted his own minor child. The issue is whether the minor who is the victim of an assault may also be said to "witness" that assault, elevating the crime to a felony. The trial court held that the same person could be both the victim and the witness of an assault under ORS 163.160(3)(c). Defendant appeals, arguing that, under the specific wording of the statute and the Supreme Court's construction of it in State v. Glaspey, 337 Or 558, 100 P3d 730 (2004), a minor victim of an assault is not a "witness" to the assault. We agree with defendant and reverse and remand for entry of judgment of conviction for misdemeanor assault in the fourth degree and for resentencing. The relevant facts are not in dispute. Defendant physically assaulted his 14-year-old son, A, striking him in the face, throwing him to the ground, and repeatedly "throwing him around." A suffered a bloody nose, bruises, and scratches as a result. Defendant was charged by indictment with felony fourth-degree assault. ORS 163.160. Although fourth-degree assault generally is punishable as a Class A misdemeanor, ORS 163.160(2), it is elevated to a Class C felony under certain circumstances, including when the assault is "committed in the immediate presence of, or is witnessed by, the person's or the victim's minor child." ORS 163.160(3)(c). The statute further provides that an assault is witnessed "if the assault is seen or directly perceived in any other manner by the child." ORS 163.160(4). The indictment against defendant charged that he had "unlawfully and recklessly cause[d] physical injury to [A]" and that the assault "was witnessed by [A], defendant's minor child." Defendant demurred to the indictment, arguing that the same person cannot be both the "victim" and a "witness" of an assault for purposes of ORS 163.160(3). The trial court overruled the demurrer, and defendant's case was tried to a jury. At the close of the state's case, defendant moved for a judgment of acquittal, arguing again that the same person cannot be both an assault's victim and its witness for purposes of ORS 163.160(3), and that such a reading of the statute "[d]efies English language comprehension." The court denied that motion, and the jury found defendant guilty. On appeal, defendant assigns error to the overruling of his demurrer and to the denial of his motion for a judgment of acquittal. He argues that both assignments are controlled by the Oregon Supreme Court's decision in Glaspey. According to defendant, Glaspey stands for the proposition that ORS 163.160(3)(c) applies only when a child witnesses an assault that "transpires between others" and that the victim of the assault and the minor child who witnesses it must be different persons. The state responds that defendant is misreading Glaspey. According to the state, the issue in Glaspey was whether a child who witnesses an assault is also thereby a victim of the crime for purposes of ORS 163.160, whereas the issue here is the converse--that is, whether a child who is the victim of an assault is also thereby a witness of that assault. The state argues that the court's conclusion in Glaspey--that a witness is not thereby a "victim"--simply has no bearing on the question whether an assault victim is a "witness" of the assault.