State v. Stewart

In State v. Keller, 40 Or App 143, 145 (1979), the court clarified that "striking, slapping, etc. and comparable acts are not, as a matter of law, offensive physical contact within the meaning of ORS 166.065(1)(a)--instead, it remains a question for the fact-finder in each individual case whether under the specific circumstances the defendant subjected another to offensive physical contact."

Defendant appealed a conviction for assault in the fourth degree which constituted domestic violence under ORS 161.405(2). Defendant asserted that the trial court erred in instructing the jury that a slap constituted "offensive physical contact" under the harassment statute. The State argued that slapping is an example of “offensive physical contact” and that definition is in line with the interpretations of case law. In State v. Keller, 40 Or App 143, 145 (1979), the court clarified that "striking, slapping, etc. and comparable acts are not, as a matter of law, offensive physical contact within the meaning of ORS 166.065(1)(a)--instead, it remains a question for the fact-finder in each individual case whether under the specific circumstances the defendant subjected another to offensive physical contact." The Court held that because the jury found Defendant had “intentionally engaged in conduct [that constituted] a substantial step towards commission of a crime,” the flawed jury instruction was harmless. Portion of judgment imposing court-appointed attorney fees reversed; otherwise affirmed.