328 P.3d 782
Or. Ct. App.2014Background
- Defendant left her two young children (J, age 3; N, age 2) in the care of her boyfriend, Ros, on multiple out-of-town trips despite knowing Ros had previously assaulted J and had a criminal conviction with a no-contact order.
- In March 2007 Ros assaulted J; defendant observed J's injuries, knew Ros’s explanation, and knew of Ros’s conviction but did not contact police then. Ros later moved back in with defendant.
- In early February 2008 Ros again assaulted J; J presented with vomiting, fever, bruising, and liver injury; defendant photographed injuries, took J to the ER, but did not report that Ros had been caring for J.
- Mid-February 2008, after leaving J with Ros, defendant returned to find J with severe bruising and later-discovered fractures (humerus, clavicle, scapula); she photographed but did not seek medical care then.
- In early March 2008 defendant again left the children with Ros; while she was away Ros assaulted N, resulting in N’s death.
- Defendant was convicted by the court (bench trial) of three counts of first-degree criminal mistreatment under ORS 163.205: one count for withholding medical attention (J) and two counts for withholding necessary and adequate physical care (J and N). She appealed denial of judgment of acquittal on the two physical-care counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether leaving children with a known abuser constitutes "withholding necessary and adequate physical care" under ORS 163.205 | Leaving children with Ros after prior assaults and conviction deprived them of essential protective care and exposed them to a high likelihood of serious harm | Baker-Krofft limits "withholding physical care" to keeping back specific services; leaving children with Ros merely created risk of future harm and so is insufficient | Court held state presented legally sufficient evidence that defendant withheld essential physical care by exposing dependent children to a known, imminent, and likely threat of serious injury or death; affirmed convictions |
Key Cases Cited
- State v. Baker-Krofft, 239 P.3d 226 (Or. 2010) (defines "withholds necessary and adequate physical care" as keeping back physical services/attention necessary for bodily needs and rejects broad "create risk" reading)
- State v. Hall, 966 P.2d 208 (Or. 1998) (bench-review standard for judgment of acquittal: view evidence in favor of state; can conviction stand if a rational factfinder could find elements beyond reasonable doubt)
- State v. Drown, 263 P.3d 1057 (Or. Ct. App. 2011) (withholding physical care includes failure to provide for dependent’s basic needs such as safety and survival)