Argued and Submitted September 27, 2013
Linn County Circuit Court. 11010010. Thomas McHill, Judge.
David L. Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael J. Slauson, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[262 Or.App. 221] EGAN, J.
Defendant appeals a judgment of conviction for one count of criminal mistreatment in the second degree, ORS 163.200. The basis for the charge was defendant's failure to seek medical attention for her infant daughter after discovering that her husband had bruised the child. Defendant assigns error to the trial court's denial of her motion for a judgment of acquittal (MJOA), which was based on the insufficiency of the state's evidence. She also assigns error to the trial court's determination of guilt, contending that the trial court applied an incorrect legal standard in making that determination. We do not address defendant's second assignment of error because we conclude that the trial court erred in denying the MJOA and, accordingly, we reverse.
In reviewing the denial of an MJOA, our task is to determine whether there was sufficient evidence--when viewed in the light most favorable to the state--from which a rational factfinder could find that the state proved each element of the crime beyond a reasonable doubt. E.g., State v. Wright, 253 Or.App. 401, 403, 290 P.3d 824 (2012). We recite the following facts in accordance with that standard.
Defendant worked the night shift at Salem Hospital as a certified nursing assistant. After her shift ended, defendant went to do some shopping nearby. While she was shopping, she spoke with her husband, Kent, by telephone. Kent was at their Albany home. Defendant testified that Kent initially told her during that call that he had rolled over on their seven-month-old child, M, and that this had left " a bruise" on M. Later in the conversation, Kent admitted that he had gotten frustrated with the child for keeping him up all night and grabbed her. Defendant stated that her husband sounded " angry and frustrated" during the call. Kent asked defendant
to come home, and defendant stated that she would do so. The trial court found that this call took place no later than approximately 9:30 a.m.
At 10:18 a.m., defendant called her mother to speak about the incident; that conversation lasted 43 minutes. Defendant's mother testified, " We kind of both decided it would be best if she would just get home and check on the baby because it just sounded funny, fishy."
[262 Or.App. 222] Defendant arrived home at approximately 11:30 a.m. Defendant stated that she went upstairs and found Kent and M in bed together. While Kent went outside, defendant took M and examined her. A police officer, Timm, who eventually responded to the scene, testified that defendant had told him that she had seen " fingertip bruises," " very dark bruising," and " bruises [that] were pretty bad" during that examination.
Defendant gave Kent some money, and he left the house to do some shopping. The parties stipulated that defendant called her pediatrician's office at 11:30 a.m. to report " bruises and scratches on the child." Defendant asked for advice about whether she should bring M in for an examination. Somebody from the pediatrician's office " [s]uggested [defendant] take child to [the emergency room] so that they could properly document visit and child [ sic ]." Mother replied that she would take M to the emergency room.
Defendant spoke with her mother several more times that day. Defendant had sent her sister images of M; when defendant's mother saw one of the images, she testified that " it looked like there were marks on [M's] back," and that, upon seeing the image, she became " upset." When defendant's mother spoke with defendant again, she urged defendant to take M to the doctor and to leave the house; mother testified that defendant's tone over the phone caused her to fear that Kent might harm M. Approximately 20 minutes after that conversation, defendant's mother called the police.
Police officers Timm and Hammersley arrived at the house at approximately 2:15 p.m. Defendant was holding M when Timm met her at the door; Timm observed " bruising to [M's] eye and her head and the side of her neck." Timm requested to examine the child's torso; he testified that he observed " [b]ruising to her arm, her side, some bruising on the back, a bruise on the stomach." According to Timm, defendant had told him that the bruises had faded and did not look as bad as they had when she first saw them. Timm began questioning defendant about the incident; he testified that defendant told him that both her mother and sister had [262 Or.App. 223] told her to take the child to the doctor. Timm stated that he interviewed ...