343 P.3d 1286
Or. Ct. App.2015Background
- Defendant lived in a motor home with her boyfriend, her 10-year-old daughter (V), the boyfriend’s dog, and intermittently the boyfriend’s 3-year-old son (E).
- During summer 2011 the dog bit E on the face (12 stitches), bit V on the arm (after V stepped on the tail), then bit V on the neck while she petted the sleeping dog (two punctures, bleeding, scar), and later bit V on the face in a car (split lip, three stitches).
- Defendant knew of the dog’s prior bites and believed V should not have unsupervised contact with the dog, but allowed V to be near the dog; defendant also instructed V to lie about how the facial injury occurred.
- Defendant was tried and convicted by the court on two counts of first-degree criminal mistreatment under ORS 163.205(1)(b)(A) (charges alleged she “unlawfully and knowingly cause[d] physical injury” while having assumed responsibility for V).
- Defendant moved for judgment of acquittal arguing the evidence did not show she ‘‘knowingly’’ caused physical injury; the trial court denied the motion and convicted; on appeal the court reviews whether the evidence sufficed to prove the required mental state.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 163.205(1)(b)(A)’s mental state “knowingly” requires awareness of assaultive conduct (not merely awareness of risk). | The statute’s conduct can be an omission; knowing failure to remove a dangerous dog can be treated as knowingly causing injury. | “Knowingly” requires awareness that one’s conduct is assaultive; at most the evidence shows reckless disregard of risk. | The statute’s placement of “knowingly” modifies the element “cause physical injury”; proof must show the defendant knowingly engaged in assaultive conduct. |
| Whether the evidence supported that defendant ‘‘knowingly’’ caused V’s injuries by allowing V near the dog. | The dog’s history of biting children permitted an inference defendant knew the dog had a propensity to bite and thus knowingly caused injury by inaction. | Prior bites show at most awareness of risk—recklessness—not an intent or awareness of assaultive conduct. | Evidence was insufficient: prior bites support, at best, a reckless mental state; no proof defendant knowingly used the dog to assault V. |
| Whether defendant’s instruction to lie supports an inference of prior knowledge that her omission was assaultive. | Concealment indicates consciousness of guilt and supports knowing culpability. | Lying can reflect fear of consequences regardless of mens rea; it is not proof of prior awareness of assaultive conduct. | Lying did not supply the missing proof of knowing assaultive conduct; it could reflect post-injury fear, not preexisting scienter. |
| Whether conviction should be modified to lesser included offense. | (State did not request modification.) | Defendant sought reversal/remand. | Court reversed conviction for insufficiency of proof of knowing mental state; did not modify to lesser included offense. |
Key Cases Cited
- State v. Barnes, 329 Or. 327 (defines “knowingly” as awareness of the nature of one’s conduct and holds proof of knowing causation requires awareness of assaultive nature)
- State v. Jantzi, 56 Or. App. 57 (distinguishes ‘‘reckless’’ from ‘‘knowing’’ where defendant was aware of risk but not that conduct was assaultive)
- State v. Martin, 240 Or. App. 357 (evidence that defendant commanded his dog to attack supported inference defendant knowingly used dog to assault)
- State v. Schodrow, 187 Or. App. 224 (grammatical placement of culpable adverb shows it modifies the immediately following statutory element)