Submitted: December 20, 2013.
Deschutes County Circuit Court MI111726. Barbara Haslinger, Judge.
Peter Gartlan, Chief Defender, and Meredith Allen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and De Muniz, Senior Judge.
[261 Or.App. 632] DEVORE, J.
Defendant appeals a judgment of conviction for second-degree child neglect, ORS 163.545. Defendant assigns error to the trial court's denial of his motion for a judgment of acquittal. Defendant argues that the state failed to establish that defendant's actions constituted a gross deviation from the standard of care that a reasonable parent would observe. See State v. Paragon, 195 Or.App. 265, 270, 97 P.3d 691 (2004). We review to determine whether a rational factfinder could find that the essential elements of the crime were proved beyond a reasonable doubt, viewing the evidence in the light most favorable to the state. Id. at 267; State v. Savage, 214 Or.App. 343, 345, 164 P.3d 1202 (2007). " Our decision is not whether we believe defendant is guilty beyond a reasonable doubt, but whether the evidence is sufficient for a jury to so find." State v. Goff, 297 Ore. 635, 640, 686 P.2d 1023 (1984). We reverse.
The essential facts are not disputed. June 1, 2011, was a particularly chilly day in Redmond. Around 12:15 p.m., two witnesses saw a three-year-old boy, clad only in underwear and rain boots, running down the street alone. One of the witnesses dialed 9-1-1 and coaxed the child inside her home. Police officers responded, and the child managed to lead them to his home, two and a half blocks away. Defendant, the child's father, had been asleep and had not realized that his son had been gone for at least 45 minutes. The officers cited defendant for second-degree child neglect. Thereafter, defendant cooperated with DHS to implement a child-safety plan. He installed chain locks on the front and back doors of the house to prevent his son from wandering away again.
Nevertheless, in midmorning of June 17, 2011, defendant's son left the house through the door to the [261 Or.App. 633] garage. The child was barefoot and pantless and accompanied by the family dog. He wandered three and a half blocks before a witness noticed the child pushing a toy dump truck. The same officers were dispatched, and they recognized the child from the June 1 call. One officer carried the child home. Defendant's garage door was rolled open when the officers arrived. They knocked at the front door. After several minutes, defendant appeared looking as though he had been sleeping. The officers cited defendant again with second-degree child neglect.
The parties agree, based on testimony and records, that the child had been gone for at least 25 or 30 minutes before the officers brought him home. The child's parents did not believe that their son could open the motorized garage door. They also thought that opening the door leading from the house to the garage required more force than their son could exert.
At trial, defendant moved for a judgment of acquittal, arguing that the state failed to prove that he acted with criminal negligence. Defendant contended that his conduct was not a gross deviation from the standard of care. The trial court denied defendant's motion. The jury found defendant guilty of second-degree child neglect but only for the June 17 incident.
The parties do not dispute that the three-year-old's unsupervised excursion " may be likely to endanger the health or welfare of such child." Criminal liability, however, does not follow unless a defendant acts with " criminal negligence." ORS 163.545. Criminal negligence
" means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and [261 Or.App. 634] degree that the failure to be aware of it constitutes a gross deviation from the standard of ...