State v. Blan

Under ORS 163.165, direct physical contact with the dangerous weapon is not required to satisfy the “by means of” prong of third-degree assault.

Defendant appeals a judgment of conviction for one count of third degree assault. Defendant made a fast left turn off of a highway without stopping. In order to avoid colliding with Defendant, the victim was forced to “dump” his motorcycle and suffered serious injuries. Defendant assigns error to the trial court’s denial of his motion for judgment of acquittal and argues that the State must prove direct physical contact between the dangerous weapon and the victim. The State contends that Defendant caused the victim’s injuries by means of a dangerous weapon because Defendant’s maneuver in his car caused the victim to crash his motorcycle. First, a car is a dangerous weapon when it is used in a manner capable of causing death or serious bodily injury and Defendant concedes that he used his car in such a manner. In State v. Hill, the Supreme Court concluded that passengers injured as a result of a reckless driver were injured “by means of” the vehicle they were in. Defendant conceded on appeal that his car was a dangerous weapon and the victim’s injuries resulted from Defendant’s reckless operation of the car. The State is not required to prove any more than that; direct physical contact is not required to satisfy the “by means of” prong of third-degree assault. Affirmed.