Defendants Timothy McCants and Cynthia Walker, who were jointly tried, appeal, challenging their convictions on three counts each of first-degree criminal mistreatment, ORS 163.205(l)(a), which were based solely on conditions in defendants’ home. Each defendant contends on appeal that the state’s proof was legally insufficient to establish that he or she “intentionally or knowingly with[held] necessary and adequate * * * physical care,” ORS 163.205(l)(a), from any of defendants’ children. As explained below, we conclude that, viewing the evidence and reasоnable attendant inferences in the light most favorable to the state as the prevailing party,
see State v. Hall,
We recount the material facts, as established by the evidence at trial, consistently with our standard of review: Defendants lived with their three children, I (three years old), T (two years old), and C (five and one-half months old). On the afternoon of April 12, 2006, Salem Police Officers Moffitt and McCarley came to defendants’ home to investigate a complaint of suspected drug activity.
When the officers approached the house, they observed a large stack of garbage near the garage, and stacks of boxes, sacks, and other items on the enclosed porch. Outside the front door, there was a “strong unpleasant odor of * * * garbage and dirty laundry” with “a little bit of urine or feces mixed in.” Through the front window of the house, the officers saw into defendants’ living room. They could see a couch covered with laundry and that the living room floor was “filthy,” strewn with garbage, old food debris, and several soilеd diapers.
The officers spoke with McCants at the front door. Moffitt explained to McCants that they were there to investigate suspected drug activity and that “the easiest way” to resolve the complaint would be to “take just a minute and walk us through the residence.” McCants responded that he *573 understood, but that he did not want the officers to enter. Moffitt
“then explained to [McCants] — while I was talking to him, I could see his daughter, [I], running around the living room behind him, so I knew that there were children present. I told him I was concerned — based on what I could seе of the conditions of the house, I was concerned for the welfare of the kids, and I couldn’t just walk away.”
McCants acknowledged the house was messy, but maintained that the children were “okay.” Even though the children appeared healthy and well fed, the officers placed defendants under arrest for criminal mistreatment in the first degree based on the condition of their home.
The officers then requested and received consent from the defendants to search their house. While Moffitt stayed with defendants in the living room, McCarley inspeсted the house, taking photographs. The house was littered throughout with food debris, laundry, garbage, and toys. Moffitt saw “several choking hazards” on the living room floor, which was cluttered with “several” pieces of plastic, plastic bags, and toys. According to Moffitt, “[i]t appeared to be very unsafe, * * * just [from] what I could see in the living room without looking at the rest of the house.” At one point, McCarley saw T, the two-year-old, who had been sleeping in defendants’ bedroom unattended, “holding a really small toy[ ] and * * * trying to put it in his mouth.” McCarley was concеrned that the small toy presented a “choking hazard.”
The doorway to T and I’s shared bedroom was partially blocked by a cabinet, and the floor was cluttered with toys, food containers, and garbage. McCarley believed those conditions created a fire hazard.
In the kitchen, the counters were “covered with old food containers, garbage, dirty dishes, [and] tools,” the garbage was overflowing, and there was evidence of an ant problem. The refrigerator was clean and full of food. In the dining area, there were two рlates with old food and a partially eaten apple. The bathroom was relatively clean except for a dirty diaper on the floor.
*574 The garage, which was “packed full” of boxes and other items, was separated from the house by a locking door — and defendants claimed that they kept that door locked to keep the children out of the garage. However, when McCarley and McCants went into the garage, the two oldest children, I and T, followed them “without being corrected.”
In the laundry area, which was accessible through the garage, there was a “[r]eally strong odor of mildew and mold,” and laundry detergent and open bleach containers were strewn about. Walker told McCarley that there was a “huge” rat that had been living in the roof above the garage for “about a month” and that the rat would go into the laundry room. Defendants had set traps for the rat and had reported the problem to their landlord.
With respect to the duration and degree of the conditions in the home, McCants told Moffitt that the house had been “much worse * * * a couple of days before,” and “even worse before that,” but that it had only been messy for a total of “less than two weeks.” According to McCarley, McCants admitted that the house was “now * * * spotless” compared to how it looked “a few months” before. Walker told McCarley that the house had been in this condition for a “few weeks” but that it had “mostly * * * gotten * * * bad in the past few days.”
McCants admitted that the condition of the home was “unacceptable” for children and that the pieces of plastic presented a “choking hazard.” Walkеr admitted that the home was “not acceptable for her three kids.” At trial, she also acknowledged that the presence of small toys (e.g., Barbie doll accessories) belonging to her oldest child, I, located in the bedroom I shared with T, were “choking hazards” to the younger children, T and C, but claimed that I had scattered the toys just before McCarley inspected defendants’ home. Usually, Walker claimed, the toys were kept in a locked closet and brought out only when the two younger children were not around.
McCarley believed thаt defendants’ house was not a safe environment for the children based on the combination of “the odor, the garbage, * * * the clutter, [and] the choking *575 hazards” present. Moffitt believed that the house was not safe for similar reasons. At some point, the officers called for a City of Salem code enforcement officer, who described the house as “very messy” and posted a sign designating defendants’ house as a public nuisance. When the code enforcement officer returned to the house approximately two weеks later, the conditions had been rectified.
Defendants were each charged with three counts of criminal mistreatment in the first degree for “knowingly withholding] necessary and adequate * * * physical care,” ORS 163.205(l)(a), from each of their three children. Defendants waived a jury trial and were tried jointly to the court.
At the close of evidence, neither defendant moved for a judgment of acquittal (MJOA). However, in closing argument, Walker’s counsel did argue that there was insufficient evidence for the trial court to find that defendants’ conduct constituted “withholding] necessary and adequate * * * physical care.” ORS 163.205(l)(a). In advancing that contention, Walker’s counsel did not distinguish between or among the three counts against her client; rather, the assertion of evidentiary insufficiency pertained generically to the three counts as an undifferentiated whole — i.e., the conditions in the home were not of such a nature and degree that they presented a culpable risk to any child. McCants’s counsel, whose closing argument followed, similarly, generically disputed the legal sufficiency of the state’s proоf, again without differentiating among individual counts.
The trial court convicted defendants on all counts, finding that “[t]his is just not a dirty house, and it’s not a house that got this dirty over two days of [Walker] being sick. This house is absolutely filthy, and I consider it a danger to those children.”
On appeal, each defendant raises three assignments of error, asserting that the state’s proof as to each count on which he or she was convicted (relating to each of the three children) was legally insufficient. Defendants advance one common argument as to all six assignmеnts of error — that is, they make no effort to distinguish between themselves as to their respective mental states or to distinguish among the *576 circumstances of the three children and nature or degree of any risk presented to them, individually, by various conditions in the home.
Rather, as before the trial court, the overarching gravamen of defendants’ position is that there is insufficient evidence to support any of their convictions for criminal mistreatment in the first degree. Specifically, defendants contend that the extant conditions in their home, and аny failure to address those conditions, did not constitute “withholding] necessary and adequate * * * physical care” within the meaning of ORS 163.205(l)(a) because those conditions did not present a “significant likelihood of serious harm” to any of their children. Defendants further argue that, even if conditions in their home were likely to cause their children serious harm, there is no evidence that they had knowledge of that fact.
The state responds that ORS 163.205(l)(a) does not require the state to prove that defendants’ conduct was likely to cause their children serious harm or that they knew that it was likely to cause serious harm.
We begin, as we must,
see State v. Wyatt,
Here, the question of preservation is close — as it is almost invariably when defendants, rather than separately *577 moving for a judgment of acquittal, conflate MJOA-like contentions into closing argument in a court trial. 1 Nevertheless, each defendant, through his or her closing argument, not only disputed the relative weight and persuasiveness of the parties’ evidеnce, but also sufficiently alerted the trial court that he or she was contending that the state’s proof regarding conditions in the house, individually or collectively, was legally insufficient to support a conviction under ORS 163.205(l)(a).
That does not, however, end our preservation inquiry. The question remains: Exactly what was preserved? That is, what were the contours of defendants’ contentions pertaining to the insufficiency of the state’s proof? As noted, both defendants’ arguments in that regard were general, without differentiating among the individual counts (which, in turn, corrеsponded to each of the three children). Closing argument for Walker, albeit perhaps the more cogent, is exemplary:
“This was a messy house, but it was not a house where the level of mess had risen to the level of being consistently dangerous for these three children. I don’t think the Court can find beyond a reasonable doubt that Ms. Walker or Mr. McCants knowingly withheld * * * necessary and adequate physical care from their children.”
Thus, as framed before the trial court — and, concomitantly, preserved for our review — defendants’ position was “all or nothing.” That is, the state’s proof was legally insufficient to support a conviction on
any
count because the conditions in the home were not of such a nature and degree that they presented a culpable risk to
any
child. The practical and prudential consequence of that indiscriminate tactical approach is that, if we reject that proposition, the evidence is, necessarily, sufficient as to all counts against each defendant. It is not for us to invent arguments for the
parties
— e.g., to distinguish among the individual counts with resрect to
*578
the particular circumstances of the child identified as the victim in that count — that they did not, and do not, advance for themselves.
Cf. Beall Transport Equipment Co. v. Southern Pacific,
Before addressing the legal sufficiency of the evidence as to the parallel counts on which defendants were convicted, we believe that it is important and appropriate, given the circumstances of this case, to make two overarching observations.
First,
this is merely the latest of a series of cases in recent months in which this court has been called upon to review the sufficiency of evidence to support convictions of parents who have been charged with criminal mistreatment of their children based solely on conditions existing in the family’s home.
See, e.g., State v. Dowty,
Second
— and in marked contrast to our review of an imposition of juvenile dependency jurisdiction based on conditions in a family’s home, in which we may elect to review the underlying evidence
de novo,
ORS 19.415(3)(b) — our review in this criminal case is narrowly confined to determining whether the evidence, when viewed most favorably to the state, is legally sufficient to support a conviction.
See, e.g., Hall,
We turn, then, to the legal sufficiency of the state’s proof to establish a violation of ORS 163.205(1)(a). That statute provides, in part:
“A person commits the crime of criminal mistreatment in the first degree if:
“(a) The person, in violation of a legal duty to provide care for another person, * * * intentionally or knowingly withholds necessary and adequate * * * physical care * * * from that other person[.]”
ORS 161.085(8), in turn, provides:
“ ‘Knowingly’ or ‘with knowledge,’ when used with respect to conduct or to a circumstance described by a statute dеfining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.”
As noted above, the scope of the pivotal statutory term “withholds necessary and adequate * * * physical care” from the dependent person is imprecise — especially with
*580
respect to culpable “[in]attention to dangers in the body’s environment
.” Damofie/Quintana,
In
Baker-Krofft,
we held that there was sufficient evidence to support the defendant’s conviction for criminal mistreatment in the second degree, ORS 163.200.
3
In contrast, in
Dowty,
we reversed the defendants’ convictions for first-degree criminal mistreatment.
First, the state had presented evidence of “fire hazards” — specifically, plastic containers and cardboard on a stovetop, two space heaters operating near flammable material, and sufficient household clutter to block timely escape in the event of a fire. Id. at 610. However, we concluded that that evidence failed to establish any “present risk of fire” *581 because the stovetop was turned off and because the space heaters had sensors that would automatically shut off the heater if the surrounding items got too hot. Id. (emphasis in original). We further determined that, in the absence of a present risk of fire, or of evidence that “the clutter affected the children’s bodily safety and well-being in some other way,” failure to rectify “clutter on its own” would be insufficient to support a conviction for criminal mistreatment. Id.
Second, the state had presented evidence that there were prescription pill bottles within the physical reach of the defendants’ children, ages five and two. Id. However, that evidence was insufficient to establish culpability under ORS 163.205(l)(a) because it was undisputed that the bottles were secured with childproof caps and there was no evidence that the children had access to the pills inside. Id.
Finally, in Dowty, we concluded that evidence that there were two knives and a hammer lying on thе kitchen counter was similarly legally insufficient. We acknowledged that the knives and hammer were “capable of inflicting serious bodily harm” but concluded that
“the same is true of a number of items in every home, which inevitably includes some inherent dangers. We cannot say that, in enacting ORS 163.205, the legislature likely intended to criminalize physical care * * * simply because it does not safeguard against every possible danger.”
Id. at 611. In so concluding, we noted, parenthetically, that, although the defendants claimed that they “always” used a baby gate to blоck the entrance to the kitchen to protect against hazards like the knives and hammer, there was no baby gate in place on the night of their arrest. Id. at 606-07, 610.
Thus,
Baker-Krofft
and
Dowty.
Implicit in our analysis and disposition of those cases are several factors bearing on the assessment of the legal sufficiency of asserted “dangers in the body’s environment,”
Damofle
/
Quintana,
*582 (1) The nature of the harm that the condition presents to the dependеnt person. For example, a hazard may be lethal (e.g., a loaded firearm within easy reach of a toddler) or merely potentially injurious (e.g., broken glass on a floor on which a teenager might cut his or her foot). In Baker-Krofft, especially given the lack of smoke alarms and obstacles to escape, fire was a lethal hazard.
(2)
The temporal immediacy of the harm.
All other considerations being equal, the failure to address a condition that can, or will, cause harm immediately
(e.g.,
the
“present
risk of fire” in
Baker-Krofft,
(3)
The likelihood of the potential harm to the dependent person actually being realized.
Again, all other considerations being equal, the greater the likelihood that the harm will
occur
— i.e., ranging from speculative possibility to virtual certainty — the more serious, and potentially culpable, is the failure to address the potentially hazardous condition. Thus, in
Dowty,
there was
some
possibility, however remote, that one of the young children
might
grab the hammer or knife on the kitchen counter and do some harm to herself or her sibling, but, apparently, there wаs no proof that either had ever done such a thing or was, in fact, somehow likely to do so.
See Dowty,
(4) The duration of the dependent person’s exposure to the risk of harm. This consideration is not directly implicated in Baker-Krofft or Dowty — and may be a component of the likelihood of harm being realized. As an actuarial matter, in many, albeit not all, circumstances, prolonged exposure to risk enhances the likelihood of harm. Consider, for example, the differences between a toddler having ready access to a loaded firearm for five seconds, five minutes, and five hours.
(5)
The nature and extent of remedial/supervisory measures to mitigate the potential harm.
In
Baker-Krofft,
we emphasized the absence of working smoke alarms, 230 Or
*583
App at 524; conversely, in
Dowty,
we emphasized, variously, the existence of automatic shut-off sensors on the space heaters, the childproof caps on the prescription pill bottles, and, parenthetically, the parties’ dispute regarding the use (or nonuse) of a baby gate to limit access to the knives and hammer and other common, but potentially dangerous, objects in the kitchen,
With those considerations in mind, we return to the state’s evidence in this case. As noted, given the holistic, all- or-nothing character of defendants’ challenge to the sufficiency of the state’s proof, if we reject that challenge, the evidence is necessarily sufficient as to all counts against that defendant. 5 For the reasons that follow, we conclude that the state presented legally sufficient proof — specifically with respеct to each defendant’s failure to rectify choking hazards in the home — to establish that each defendant violated ORS 163.205(l)(a). 6
With respect to choking hazards, the state presented evidence that the officers observed “several choking hazards” on the living room floor, including “several” pieces of plastic and plastic bags. Further, one of the officers saw T, the two-year-old, trying to put a small toy — which the officer described as a “choking hazard” — into his mouth. Viewed most favorably to the state, the evidence, including McCants’s аdmissions to the officers regarding the duration of the conditions in the house, supported a reasonable inference that the presence of readily accessible choking hazards was persistent, continuing over a period of days or even weeks, and not merely momentary or incidental. Finally, McCants acknowledged that the pieces of plastic presented a choking hazard, and Walker acknowledged that, at least, *584 some of the oldest child’s small toys and accessories presented a choking hazard to the two younger children.
We are mindful that the term “choking hazard” is amorphous and that it is inevitable, in millions of American homes, that small children will sometimes be exposed to such hazards. Parents, despite their best, most vigilant efforts, are not perfect — and the law does not demand omnipresence or omniscience. Thus, echoing
Dowty,
we do not believe that the legislature, in enacting the criminal mistreatment statutes, “intended to criminalize” incidental exposure to choking hazards.
Dowty,
Nevertheless — and with fidelity to our standard of review — the evidence here showed more than mere incidental or isolated exposure. Harkening to the considerations we have previously posited,
see
The totality of that evidence was sufficient to establish that defendants knowingly withheld necessary and adequate physical care from their children in violation of ORS 163.205(l)(a).
Affirmed.
Notes
Trial lawyers who forgo MJOAs and raise “legal insufficiency” contentions solely in closing argument are, inexplicably, courting nonpreservation — and consequent inadequate assistance and malpractice claims.
Convictions in other cases have been affirmed without opinion.
ORS 163.200 differs from ORS 163.205 with respect to the culpable mental states — viz., “with criminal negligence” for the former as opposed to “intentionally or knowingly” for the latter. The operative “withhold[ing] necessary and adequate * ** * physical care” language is common to both statutes.
We appreciate the jurisprudential pitfalls of explicitly identifying such considerations — which, all too often, spawns multifactoral, “mix-and-match” *582 prescriptive methodologies. Nevertheless, in this context, greater definition informing the application of the statute is useful — and, perhaps, imperative.
Again, defendants do not attempt to argue that, because of differences in the age and other circumstances of the three children, even if evidence was sufficient as to one count pertaining to one child, it was not sufficient with respect to another count pertaining to another child.
Given that conclusion, we do not address, and imply no view, whether the state’s proof of other conditions in defendants’ home was legally sufficient for purposes of OES 163.205(1)(a).