State v. Olson

Fourth-degree assault is a felony, rather than a misdemeanor, if “[t]he person commits the assault knowing that the victim is pregnant.” ORS 163.160(3)(d).

Defendant appealed a conviction of three counts of felony assault in the fourth-degree. Defendant assigned error to the trial court’s denial of his motion for judgment of acquittal. On appeal, Defendant argued that the evidence was insufficient to prove that his girlfriend was pregnant when the assaults occurred, and therefore, the state could not establish that he knew she was actually pregnant to enhance the assaults from a Class A misdemeanor to a Class C felony under ORS 163.160(3)(d). In response, the state argued that because the pregnancy was confirmed by ultrasound prior to the assaults, a factfinder could reasonably infer “that she continued being pregnant until it was known otherwise.” Fourth-degree assault is a felony, rather than a misdemeanor, if “[t]he person commits the assault knowing that the victim is pregnant.” ORS 163.160(3)(d). The Court found that the state failed to prove that Defendant’s girlfriend was actually pregnant when each assault occurred, and therefore the Defendant could not have known whether his girlfriend was or was not pregnant. Thus, the Court held that there was simply no way for the factfinder to apply logic to make a reasonable inference, rather than speculation, as to whether Defendant’s girlfriend was or was not pregnant during each assault. Reversed and remanded for entry of misdemeanor convictions; otherwise affirmed.