S056821, Opinion — State v. Rader

81
Argued and submitted September 17, 2009, decision of Court of Appeals reversed;
judgment of circuit court affirmed March 25, 2010
STATE OF OREGON,
Petitioner on Review,
v.
MATTHEW ABRAM RADER,
Respondent on Review.
(CC 05C48687; CA A132153; SC 8056821)
228 P3d 552

82 	State v. Rader
En Banc
On review from the Court of Appeals.*
Jamie K. Contreras, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.
Zachary Lovett Mazer, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
KISTLER,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.
"' Appeal from Marion County Circuit Court, John B. Wilson, Judge. 223 Or
App 169. 195 P3d 438 (2008).

Cite as 348 Or 81 (2010) 	83
KISTLER,J.
Ordinarily, fourth-degree assault is a misdemeanor.
ORS 163.160(2). It becomes a Class C felony, however, when
the victim's minor child "see[s]" or "directly perceive[s]" the
assault. ORS 163.160(3)(c); ORS 163.160(4). 1 Those statutes
give rise to two questions in this case. The first is what the
phrase "directly perceive[s]" means. The second is whether
the evidence was sufficient to permit a reasonable trier of fact
to find that a child who was in her bedroom "perceived" an
assault on her mother that occurred outside the child's closed
bedroom door. In resolving those questions, the Court of
Appeals held that a child perceives the assault when the
child is conscious of and recognizes the assault; it then ruled
that the evidence was insufficient to meet that standard.
State u. Rader, 223 Or App 169, 173, 175-76, 195 P3d 438
(2008). We allowed the state's petition for review and now
reverse the Court of Appeals decision.
Because this appeal arises from a motion for a judg-
ment of acquittal, we state the facts in the light most favora-
ble to the state. State u. Fries, 344 Or 541, 543, 185 P3d 453
(2008). Defendant lived with the victim and the victim's two
minor children, aged 11 and three, in a two-bedroom apart-
ment. Defendant and the victim had a brief but unstable rela-
tionship, marked primarily by defendant's controlling behav-
ior and assaultive conduct. On July 25, 2005, defendant
began berating the victim about her relationship with her
former boyfriend, who was the father of the victim's younger
daughter. Defendant believed that the victim spent too much
time picking up her daughter at her former boyfriend's
house, and he suspected that the victim had been engaging in
sexual relations with her former boyfriend.
Defendant began by screaming and yelling at the
victim. He called her a "lying fucking whore" and asserted, in
more graphic terms, that she was probably engaging in oral
sex with her former boyfriend when she went over to pick up
their daughter. He continued by yelling that he knew that
the victim wanted someone else on the side and asserted,
1 Other circumstances also will elevate fourth-degree assault from a misde-
meanor to a felony. In describing the statute, we focus only on the circumstances at
issue in this case.

84 	State v. Rader
again in more graphic terms, that she probably was engaged
in other kinds of sexual relations with her former boyfriend
and that, if she were not, she wanted to do so.
Defendant's anger turned physical. The victim testi-
fied that defendant "became very agitated, to the point where
he was using his body to-using his weight to force me
around with just his chest and his shoulders." Defendant
pushed the victim out of their bedroom where the argument
had begun, into the hallway, and around the hallway until he
backed her into the open doorway of her younger daughter's
room, where the daughter was watching television. 2
As defendant pushed the victim into the doorway of
her daughter's room, he continued to scream at her. The vic-
tim took a step into her daughter's room to turn up the tele-
vision "so she would be distracted by [sic] all of the yelling
and screaming." Defendant then reached behind the victim
and closed the bedroom door. He grabbed the victim's head
with both hands and headbutted her, striking the victim's
head with his head. The victim testified that the sound of
that blow was "very loud." She explained: "From the sound, to
me, I thought that my head was cracked open." The force of
the blow made the victim's head recoil, causing her head to
hit her daughter's bedroom door "very loudly." The victim fell
to the floor, let out a cry of pain, and got back to her own bed-
room where she sat on the floor between her bed and the wall.
The victim's head began to swell where defendant had hit
her. Defendant got ice and made the victim put it on her head
"to make it go away so nobody could see it," and he told the
victim not to go to work "unless [she] wanted everybody to
know our business, unless [she] wanted everybody to know
what he had done."
At trial, the prosecutor asked the victim whether her
daughter could have heard the sounds arising from the
assault through the closed bedroom door. Specifically, on
direct examination, the prosecutor asked her, "[A]t the times
when these arguments, these assaultive incidents were hap-
pening, there was yelling and screaming, would someone
who was in either of the bedrooms, even with the door shut,
2 The victim's older daughter was not home at the time of this incident.

Cite as 348 Or 81 (2010) 	85
be able [to] hear what's going on?" The victim answered
"yes." 3
The victim did not contact the police after the
July 25 incident. A few days later, defendant assaulted the
victim again. After the second assault, the victim petitioned
for a restraining order and also contacted the police. As a
result of defendant's acts, the state charged him with, among
other things, felony fourth-degree assault arising out of the
July 25 incident. 4
At the close of the state's evidence, defendant moved
for a judgment of acquittal. Regarding the July 25 incident,
defendant argued that no reasonable trier of fact could find
that the child perceived the assault and thus witnessed it.
Defendant did not contend that there was insufficient evi-
dence to convict him of misdemeanor fourth-degree assault.
Rather, his challenge was limited to the element that ele-
vated the misdemeanor to a felony. The trial court denied
defendant's motion. Later, the trial court, sitting as the trier
of fact, found that the child had witnessed defendant's
assault on her mother and convicted him of, among other
things, felony fourth-degree assault for the July 25 assault.
Defendant appealed that conviction, arguing that the trial
court had erred in denying his motion for judgment of acquit-
tal. The Court of Appeals agreed with defendant, reversed his
conviction for felony fourth-degree assault, and remanded for
entry of a conviction of misdemeanor fourth-degree assault.
Rader, 223 Or App at 176.
On review, 	the 	state argues 	that the 	Court of
Appeals erred in interpreting the term "witness" in ORS
163.160(3)(c), and that, alternatively, even if the Court of
3 On cross-examination, defense counsel asked the victim: "In your opinion,
was there anything with regards to the headbutting incident from which your
daughter would have been able to determine that you had been headbutted?" After
defense counsel rephrased the question a couple of times, the victim responded: "At
the time it happened? Not unless she actually saw it." Because we view the facts in
the light most favorable to the state, we do not consider whether the victim's
answer on cross-examination would have permitted the trier of fact to find that the
child could not have heard the sounds arising from the assault.
4 Those two incidents resulted in multiple charges and convictions. On appeal,
defendant challenged only the felony assault conviction arising out of the July 25
incident. Because he has not challenged the other convictions arising out of the two
incidents, we have limited our discussion of the facts to the July 25 incident.

86 	State v. Rader
Appeals' interpretation of that term were correct, the Court
of Appeals still erred in finding that there was insufficient
evidence to submit the charge offelony fourth-degree assault
to the trier of fact. We begin with the statutory interpretation
question that the state raises and first set out the text of the
relevant statutes.
ORS 163.160(1) provides, in part, that a person
commits the crime of fourth-degree assault if the person
"[i]ntentionally, knowingly, or recklessly causes physical
injury to another." Ordinarily, fourth-degree assault is a mis-
demeanor. ORS 161.160(2). However, it will become a Class
C felony if, among other things:
"The assault is committed in the immediate presence of, or
is witnessed by, the person's or the victim's minor child or
stepchild or a minor child residing within the household of
the person or victim."
ORS 163.160(3)(c). ORS 163.160(4) defines the term "wit-
nessed." It provides that "an assault is witnessed if the
assault is seen or directly perceived in any other manner by
the child."
The interpretative issue in this case is narrow. The
state does not contend that the assault occurred in the child's
immediate presence or that the child saw the assault. It
argues only that the child heard and thus "directly perceived"
the assault on her mother. On that point, the state and defen-
dant agree that the use of the word "directly" requires that
the child's perception be contemporaneous. And neither side
disputes that "perceives" means:
"to become aware of through the senses: NOTE, OBSERVE
<-roughness and smoothness-R.S. Woodworth>* * *esp: to
look at <people have become so used to the sight of ruins
that they hardly- them any more-Norbert Mhlen>."
Webster's Third New Int'l Dictionary 1675 (unabridged ed
2002).
Where the parties differ is in defining precisely what
the child must perceive or, in the dictionary's terms, "become
aware of' in order for the child to perceive the assault. The
state argues that, to perceive an assault aurally, a child need
only be aware of the sounds emanating from the assault; the

Cite as 348 Or 81 	87
child need not be aware that those sounds emanate from
assaultive conduct. Defendant, for his part, argues that per-
ceiving an assault requires not only awareness of the sounds
created by the assaultive conduct but also some minimal
level of awareness that those sounds emanate from assaul-
tive conduct.
The state's interpretation of ORS 163.160(4) is diffi-
cult to square with the text of that statute. As noted, ORS
163.160(4) provides that "an assault is witnessed if the
assault is seen or directly perceived in any other manner by
the child." Under the plain text of the statute, what a child
must perceive or, in the dictionary's terms, "become aware of'
is "the assault," not merely the sounds (or other sensory data)
emanating from the assault. The text of the statute implies
that the child must be aware that the sounds that he or she
hears arise from assaultive conduct.
The context sheds some light on the issue. Under
ORS 163.160(4), "seen" is an alternative to "directly per-
ceived." A child will "witness" an assault if the child sees or
directly perceives the assault. A child who sees an assault
will be aware that someone is hitting or striking another (or
engaging in other assaultive conduct). To be sure, an infant
who sees an assault may have only an imperfect understand-
ing of what he or she is observing. But we infer from the leg-
islature's decision to juxtapose "seen" and "directly per-
ceived" and to require that the child either see or perceive
"the assault" that the legislature intended to require a mini-
mal level of awareness that the images or sounds that a child
perceives arise from assaultive conduct. See Behnke-Walker
v. Multnomah County, 173 Or 510, 518, 146 P2d 614 (1944)
(" '[T]he coupling of words together shows that they are to be
understood in the same sense.'" (quoting Neal v. Clark, 95
US 704, 708, 24 L Ed 586 (1877))).
The legislative history provides additional insight,
but it does not all point in the same direction. See State v.
Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) ("Legislative
history may be used to confirm seemingly plain meaning and
even to illuminate it* * *."). Before 1999, ORS 163.160(3)(b)
(1997) elevated fourth-degree assault to a felony if "[t]he
assault is witnessed by the person's or the victim's minor

88 	State v. Rader
child," but the statute did not define "witnessed" or include
"immediate presence" as an alternative basis for elevating
fourth-degree assault to a felony. The legislature amended
the statute in 1999 by adding "immediate presence" and
defining "witnessed" as "seen or directly perceived." Or Laws
1999, ch 1073, § 1.
Initially, House Bill (HB) 3129 (1999) 5 proposed add-
ing the phrase "committed in the immediate presence of' and
defined "witnessed" for purposes of the statute as being "seen
or perceived in any other manner by the child." At the first
work session, Steve Dingle, representing the Oregon District
Attorneys Association, 	spoke 	on behalf of the bill 	and
described what he considered to be the reason for the bill:
"There are judges that are interpreting [ORS 163.160(3)(b)
(1997)] literally, which would require that the child actu-
ally visually see the assault. Other judges are interpreting
the statute to include minor children who perhaps are on
the other side of a wall, excuse me, in a bedroom that actu-
ally hear the yelling the screaming the cursing the assault-
ing. So this just is intended to make crystal clear that that
second situation is captured by the statute."
Testimony, House Committee on Judiciary - Criminal Law,
HB 3129, Apr 13, 1999, Tape 134, Side A. Dingle testified
that children who hear domestic abuse are ''just as trauma-
tized as [a] child who actually sees the assault occurring,"
and responded to questions about vagueness by saying that
the sponsors wanted to make clear with the amendments
that "witnessed means more than visually observing." Id.
Dingle then addressed "immediate presence" and
suggested that that phrase would apply to a child who was in
another room but heard the sounds arising from the assault.
Id. 	In 	response 	to 	Dingle's 	comments, 	Representative
Mannix, the chair of the committee, offered a different view
Two bills were before the House. HB 3129, as first introduced, elevated
fourth-degree assault to a felony if the defendant had at least two prior domestic
assault convictions. HB 3394 elevated fourth-degree assault to a felony if the defen-
dant committed the assault in the immediate presence of the child and defined the
witness to mean see or directly perceive. The legislature considered the two bills
together and later incorporated HB 3394 into HB 3129. For convenience, we refer
only to HB 3129.

Cite as 348 Or 81 	89
of the terms, "immediate presence" and "witnessed." Repre-
sentative Mannix observed: "Being in the other room [during
an assault] may not be immediate presence. However, being
in the other room and hearing the altercation means that you
have witnessed because you have seen or perceived." Id.
Representative Mannix then 	distinguished "wit-
nessed" from "immediate presence." He noted that, under the
definition of "witnessed," the question was:
"Whether you heard it. Whether you saw it. [W]hat we're
talking about is perception and the fact of being aware,
which is what we're trying to get at, is the child being aware
of this happening. And otherwise, whether you can say that
they witnessed it by being aware of it happening-they
were there. That's the immediate presence point."
Id. Dingle agreed with Representative Mannix's distinction
between "witnessed" and "immediate presence." Id.
Later, in response to a proposal to substitute "see or
heard" 	for 	"seen 	or 	directly 	perceived," 	Representative
Mannix cautioned against doing so:
Representative Mannix: 	"If you said even 'heard,' then
some lawyers are going to get at parsing down what 'heard'
meant. Does that mean that you discerned what that thud
sound was, and we're trying to cover, the whole point being
that the traumatic impact on the child rather than some
lawyer trying to parse words."
Dingle: 	"Chairman Mannix, that's an excellent point. I'd
be very concerned that if you have the word 'heard,' that
there's an element of comprehension on the part of the
ch[ild]-we're going to get into that whole argument as to-"
Representative Mannix: 	"Did you understand what it
meant when you heard that thud sound, as this man hit
mommy? I'm just imagining already the parsing that might
occur.***"
Dingle: 	"One of the things we'd like to do, too, is avoid,
wherever possible, even bringing the child into court, and if
we get into a subjective element and aspect as to whether or
not the child comprehends it, then the child necessarily
becomes a witness. Right now, if we have a cooperative vic-
tim, we don't even need that."

90 	State v. Rader
Id. After hearing more concerns about the possible ambiguity
of the word "perceive," the committee considered using the
words "seeing, heard, or felt." Id. However, the committee
opted instead to change "perceived" to "directly perceived."
Representative Mannix explained that "the point is that the
child is aware of what's going on at the time it's going on."
Testimony, House Committee on Judiciary - Criminal Law,
HB 3129, Apr 27, 1999, Tape 162, Side A
We draw three conclusions from the legislative his-
tory. First, the primary purpose of the bill, as explained to the
committee, was to make clear that "witnessed" included hear-
ing an assault as well as seeing it. Second, Representative
Mannix explained that, in using the term "perceived," "what
we're trying to get at is the child being aware of this happen-
ing." Considering his remarks in light of the proposed amend-
ment before the committee, we conclude that "this" refers to
the assault; that is, what the legislature was "trying to get at
is the child being aware of [the assault] happening." Third,
the colloquy between Representative Mannix and Dingle
points potentially in a different direction. Their colloquy
expresses a concern that children not be called as witnesses
so that lawyers can parse how much the child discerned or
knew.
Although 	the 	colloquy 	between 	Representative
Mannix and Dingle can be read to support the state's inter-
pretation of ORS 163.160(4), that part of the legislative his-
tory is difficult to square with the text and context of the stat-
ute, which require that the child see or perceive "the assault."
See Gaines, 346 Or at 178 (explaining that we give text and
context primacy in interpreting the legislature's intent). That
colloquy is also difficult to square with the remainder of the
legislative 	history, 	which 	contemplates 	that 	perception
requires some minimal awareness that the sounds arise from
assaultive conduct.
Considering the text, context, and legislative history
of ORS 163.160(3)(c) and (4), we conclude that a child
"directly perceives" an assault if the child contemporaneously
is aware through any of the child's senses that an assault is
occurring-i.e., that one person is causing injury to another.
See ORS 163.160(1)(a) (providing that a person commits

Cite as 348 Or 81 	91
fourth-degree assault if, with the requisite mental state, the
person "causes physical injury to another"). When the state
contends that a child heard and thus directly perceived an
assault, it is sufficient to show that the child was aware that
the sounds arose from assaultive conduct. The child need not
be aware of the details or the specifics of the assault.
With that standard in mind, we turn to whether the
trial court correctly denied defendant's motion for a judg-
ment of acquittal. We note, at the outset, that, in deciding
whether the trial court's ruling was correct, the question is
whether there was sufficient evidence in the record from
which a reasonable trier of fact could find the elements of the
crime beyond a reasonable doubt. In making that determi-
nation, a court must resolve all conflicts of evidence in favor
of the state and give the state the benefit of all reasonable
inferences. State v. Cervantes, 319 Or 121, 125, 873 P2d 316
(1994). 6
In this case, defendant argues that the trial court
should have granted his motion for a judgment of acquittal
for two reasons. First, he argues that no reasonable trier of
fact could find that the sounds arising from the assault were
audible through the closed bedroom door. Second, he con-
tends that, even if a reasonable trier of fact could find that
the sounds were audible, the evidence was not sufficient to
find that the child was aware that the sounds arose from
assaultive conduct.
We begin with the question whether a reasonable
trier of fact could find that the sound of defendant's head
6 In stating the standard ofreview for a motion for a judgment of acquittal, the
Court of Appeals set out the standard that an instruction on an inference must
meet. See Rader, 223 Or App at 173 (paraphrasing State v. Rainey, 298 Or 459, 466,
693 P2d 635 (1985)). In doing so, the Court of Appeals incorrectly conflated two
related but separate issues. When a trial court instructs the jury that it may infer
one fact from another, the federal constitution requires there be some "rational
way the trier [offact] could make the connection permitted by the inference." U1ster
County Court v. Allen, 442 US 140, 157, 99 S Ct 2213, 60 L Ed 2d 777 (1979); see
Rainey, 298 Or at 466 (citing and following Ulster). That issue is not present when
a court decides a motion for judgment of acquittal. In that instance, no instruction
tells the jury that it may infer one fact from another, and the standard stated in
Rainey is inapposite. The applicable standard of review is instead the more famil-
iar one-whether a reasonable trier of fact could find the elements of the crime
beyond a reasonable doubt.

92 	State v. Rader
hitting the victim's and the sound of the victim's head hitting
the child's door were audible in the child's bedroom. On that
point, the victim's apartment was a 	small two-bedroom
apartment, between approximately 800 and 900 square feet.
The verbal and physical confrontation between defendant
and the victim began in their bedroom, went out into the hall,
and ended in the open doorway of the child's bedroom. When
defendant headbutted the victim, they were standing next to
the child's bedroom door. At that point, the door was closed
and the television on inside the room. The victim testified
that the sound of the headbutt was "very loud" and that the
sound made her think that her "head was cracked open." The
victim also testified that, when defendant headbutted her,
her head recoiled and hit her daughter's bedroom door very
loudly. Finally, when asked whether "when these arguments,
these assaultive incidents were happening, there was yelling
and screaming, would someone who was in either of the bed-
rooms, even with the door shut, be able [to] hear what's going
on," the victim said "yes."
We need not decide whether the last answer alone
would be sufficient to permit a reasonable trier of fact to find
that the sounds arising from defendant's assaultive conduct
were audible through the closed bedroom door. Even without
the victim's opinion, a reasonable trier of fact could infer that
the "very loud" sound of defendant's head hitting the victim's
and the sound of the victim's head hitting the child's door
"very loudly" were audible in the child's bedroom. Indeed,
a trier of fact reasonably could infer that the noise produced
by the victim's head hitting the child's bedroom door very
loudly 	would 	reverberate 	through 	the 	child's 	bedroom,
even with the television turned up, in the same way that a
very loud knock on an outside door reverberates through a
home. 7
7 The Court of Appeals questioned whether the evidence was sufficient to per-
mit a reasonable trier of fact to find that the child heard the noises outside the door
because "the victim [had] turned up the volume of the television in order to drown
out the sound of the argument." Rader, 223 Or App at 176. We note, however, that
the victim testified that she turned up the volume on the television "so [that her
daughter] would be distracted by [sic] all of the yelling and screaming." Turning up
the television so that it distracted her daughter differs from turning it up so that it
drowned out the sounds of the argument, or so a reasonable trier offact could find.

Cite as 348 Or 81
The remaining issue is whether a reasonable trier of
fact could find that the child was aware, from hearing the
sounds arising from the assault, that defendant was causing
physical injury to her mother. On that issue, the sound of
defendant's head hitting the victim's and the sound of the vic-
tim's head hitting the door did not occur in a vacuum. Those
sounds were preceded by an intense verbal and physical con-
frontation. Immediately before defendant headbutted the
victim, defendant was screaming at the victim in the thresh-
old of the child's open bedroom door. The victim reached in
and turned up the television to distract her daughter. Given
those facts, a reasonable trier of fact could find that the child
was aware of the physical confrontation between defendant
and her mother. Indeed, the confrontation had spilled over
into the child's bedroom, and the victim sought to distract her
daughter's attention from it by turning up the television.
Additionally, a reasonable trier of fact could find
that the child was aware that defendant was the aggressor
and her mother the object of his aggression. 8 And, given the
sounds of the headbutt and of the victim's head hitting the
door, followed immediately by a cry of pain from the child's
mother, a reasonable trier of fact could find that the child was
aware that defendant had hurt her mother-i.e., that defen-
dant had caused physical injury to her mother and thus had
assaulted her. The child need not have perceived the specifics
of the assault or comprehended the consequence of defen-
dant's actions to come within the legislature's concern to pro-
tect children from exposure to domestic assault.
As this case demonstrates, when the state seeks to
prove that a child heard and thus directly perceived an
assault, the child need not testify. The state may rely, as it
did in this case, on the close spatial and temporal connection
among the child, the verbal confrontation, and the assault
that immediately followed to prove that the child was aware
of defendant's assault on her mother. Alternatively, the state
may introduce evidence of the child's reaction after the
We do not mean to suggest that this inference is necessary to the state's proof,
only that it is an additional circumstance in this case that bears on the question
whether a reasonable trier of fact could find that the child was aware of the assaul-
tive conduct.

94 	State v. Rader
assault occurs to prove that the child was aware of the
assault. The nature and types of evidence on this point are
far too varied to attempt to catalog them, but it is important
to emphasize that the evidence must be sufficient for the trier
of fact to draw a reasonable inference not only that the child
could have heard the sounds arising from the assault but that
the child also was aware of those sounds and that they arose
from assaultive conduct. The evidence in this case met that
standard, and the trial court correctly denied defendant's
motion for a judgment of acquittal.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.