[DV_listserv] Caselaw reminder: State v Rader

[Domestic Violence issues]

Greetings:
 
Many of you may have seen this case when it originally came down from
the Supreme Court last year. 
 
However, I thought it was worth sending out again. It serves as a good
reminder to prosecutors for purposes of charging, officers for purposes
of investigating and gathering specific information, and for other
allied professionals to understand the particularities of "DV" law that
we often face.
 
State v. Rader, 348 Or 81, 228 p3d 552 (2010)
 
 
Facts: 
 
Defendant and the victim had a loud argument in their small two-bedroom
apartment while the victim's three-year old daughter was in her bedroom,
door ajar, watching television. The victim went into the child's
bedroom, turned up the TV to distract the child, and the the D closed
the child's door after she came out.
 
D then headbutted the V, making a "very loud" sound, and the V's head
struck the door "very loudly." The V cried out and fell to the floor.
The State charged the D with felony fourth-degree assault, on the ground
that the assault was "witnessed" by the child. 
 
At trial, D moved for a JOA, arguing that the state failed to prove that
the child witnessed the assault. Trial court rejected the argument.
(Good Job, Trial Court!)
 
On appeal, Court of Appeals reversed. (Sigh)
 
The Supreme Court allowed review. 
 
HELD: 1) A child "directly perceives," and thereby witnesses, 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." 
 
2) Where the state alleges that a child perceived an assault by hearing
it, proof that the child was aware that the sound arose from assaultive
conduct suffices; the state need not prove that the child was aware of
the details or specifics of the assault. 
 
3) Here, a rational trier of fact could infer that the "very loud"
sounds of the assault were audible in the child's bedroom, and that the
child was aware that the sounds arose from an assault. The child need
not testify that she perceived the assault, but instead the state can
rely on the "close spatial and temporal connection among the child, the
verbal confrontation, and the assault that immediately followed," or
introduce "evidence of the child's reaction after the assault occurs to
prove that the child was aware of the assault." 
 
 
Just a thought: It seems like the court's rationale vis-a-vis how to
prove that a child "perceived" an assault (that is, by circumstantial
evidence), could also be applied in proving injury where we don't have
great statements (or no statements at all..). However, clearly it's
always important to obtain all direct evidence we can to support the
elements of the crime(s) we hope to charge.
 

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