Argued and Submitted February 8, 2012
Marion County Circuit Court 09C49149. Albin W. Norblad, Judge.
Chris W. Dunfield argued the cause and filed the brief for appellant.
Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solictor General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Rasmussen, Judge pro tempore.
[263 Or.App. 441] DUNCAN, P. J.
While she traveled out of town on several occasions, defendant left her two young children, J and N, with her boyfriend, Ros, knowing that he had previously abused the older child, J. On one of those occasions, Ros broke J's arm, collar bone, and shoulder blade. On another, he abused N, causing injuries that led to her death.
Defendant was charged with and convicted of three counts of criminal mistreatment in the first degree, which is defined by ORS 163.205. That statute provides that " [a] person commits the crime of criminal mistreatment in the first degree if * * * [t]he person, in violation of a legal duty to provide care for another person, * * * intentionally and knowingly withholds necessary and adequate
food, physical care or medical attention from that other person[.]" ORS 163.205(1)(a). Count 1 alleged that defendant had withheld medical attention from J and was based on evidence that defendant had not sought medical care for J after Ros broke J's arm, collar bone, and shoulder blade. Counts 2 and 3 alleged that defendant had withheld physical care from J and N, respectively, and were based on evidence that defendant left J and N with Ros even after he had assaulted J.
Defendant waived her right to a jury, and the case was tried to the court. At the conclusion of the state's case-in-chief, defendant moved for a judgment of acquittal on Counts 2 and 3, asserting that leaving J and N with Ros did not constitute the " withhold[ing] of necessary and adequate * * * physical care * * *." The court denied the motion and convicted defendant of all three counts. Defendant appeals, assigning error to the court's denial of her motion for a judgment of acquittal on Counts 2 and 3. For the reasons explained below, we affirm.
When reviewing a denial of a motion for a judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational factfinder, making reasonable inferences, could have found all the elements of the offense beyond a reasonable doubt. State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998). Stated in accordance with that standard, the relevant facts are as follows.
[263 Or.App. 442] Defendant's son, J, was born in February 2005, when defendant was 15 years old; her daughter, N, was born in January 2006. In June 2006, defendant began dating Ros. J was not very verbal at the time of the incidents in this case and was later diagnosed with autism.
In March 2007, when J was two years old, defendant left J and N with Ros for the first time. While he was watching the children, Ros assaulted J. J was bruised on his face and body, had a handprint on his face, and was bleeding from his ear. Defendant saw those injuries, and immediately recognized the handprint for what it was, but did not contact the police. J and N's paternal grandmother saw J shortly thereafter, noticed his injuries, and had her daughter contact the police. Ros was charged with first-degree criminal mistreatment and third-degree assault. He pleaded guilty to and was convicted of fourth-degree assault, and the judgment of conviction required that Ros have no contact with J or J's family. Defendant knew about the conviction and the no-contact provision, and, ultimately, she believed that Ros had assaulted J. Ros said that he struck J because he was frustrated with J's crying; defendant knew that that was Ros's stated reason for assaulting J. Defendant and Ros broke off their relationship for a time after that, but in July 2007 Ros moved in with defendant and her children.
In early February 2008, defendant went out of town and left J and N with Ros. J was three years old, and N was two years old. When defendant returned on the night of February 7, J was throwing up and had a fever. The next morning, defendant observed that J had " pink spots" that she ultimately recognized as bruises on his chest and was missing clumps of hair from the top of his head. She asked Ros about J, and he responded that J was just sick. Defendant called her father, who suggested that she photograph J's injuries and send the photographs to him. Once he saw the photographs, defendant's father suggested she take J to the doctor. Defendant took J to the emergency room later that day. J was bruised in an uncommon pattern that indicated that his injuries were inflicted, not accidental. He had liver damage that was consistent with being punched, kicked, or stomped by an adult. X-rays were taken, and there was no evidence of fractures at that time. When asked by [263 Or.App. 443] emergency room staff if J could have been abused, defendant said no and did not mention that J had been staying with someone who had previously been convicted of assaulting him.
Shortly thereafter, in mid-February 2008, defendant traveled out of town for several days, again leaving J and N with Ros. On February 13, 2008, the day after she returned, defendant noticed that J now appeared to be bruised on his chest and was " really bad[ly]" bruised ...