Marion County Circuit Court. 09C49149. Albin W. Norblad, Judge. On appellant's petition for reconsideration filed June 18, 2014. Opinion filed June 11, 2014. 263 Or.App. 440, 328 P.3d 782 (2014) .
Chris W. Dunfield for petition.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Rasmussen, Judge pro tempore.
[264 Or.App. 507] DUNCAN, P. J.
In our decision in State v. Burciaga, 263 Or.App. 440, 328 P.3d 782 (2014), we concluded that the trial court correctly denied defendant's motion for judgment of acquittal on two counts of criminal mistreatment in the first degree, ORS 163.205. As explained in our previous opinion, defendant left her two young children alone with her boyfriend, Ros, while she went out of town on several occasions, knowing that Ros had abused her older child, J. On one of those occasions, J was seriously injured, and, on a subsequent occasion, the younger child, N, was killed. We rejected defendant's argument that her conduct did not constitute the " withhold[ing of] necessary and adequate * * * physical care" for the purposes of ORS 163.205 and, accordingly, affirmed the judgment of conviction. Defendant now seeks reconsideration, contending that our decision contained factual errors. See ORAP 6.25(1)(a) (factual error is appropriate basis for reconsideration). We allow reconsideration to correct a factual error and adhere to our previous opinion as modified.
Defendant takes issue with the italicized part of the following excerpt from our previous opinion:
" Following the early-February 2008 assault, J was vomiting, had a fever, was bruised, and was missing clumps of hair. Defendant photographed the injuries and took J to the emergency room, where she learned that J's bruising and liver damage indicated that he had been subjected to an intentional and substantial assault. She was told that J's injuries were consistent with being punched, kicked, or stomped by an adult. "
263 Or.App. at 450 (emphasis added). Defendant contends that the italicized wording is not supported by the record to the extent that there is no direct evidence that defendant knew or was told those things. We modify that part of the opinion to state:
" Following the early-February 2008 assault, J was vomiting, had a fever, was bruised, and was missing clumps of hair. Defendant photographed the injuries and took J to the emergency room, where she learned that J had elevated liver enzymes and was instructed to follow up with her pediatrician. Although defendant was
asked if it was [264 Or.App. 508] possible that J had been abused, she denied that possibility and failed to mention that he had been staying with someone who had been convicted of assaulting him. If defendant did not believe that Ros had abused J before she took him to the emergency room, it strains credulity to think that being questioned about possible abuse would not have caused her to suspect, if not believe, that Ros had again abused J as he had done in the past.2
" 2In rejecting defendant's argument that her conduct did not constitute first-degree criminal mistreatment, the trial court stated:
" '[S]he had three chances to do it right. Upon his conviction in Washington County for abusing the child, she had a right to make choices. In fact, there's no doubt in my mind but that she knew what the judgment said and in light of that and in light of the abuse, she chose Mr. Ros as opposed to choosing to protect the children. The second time would have been February 8th when she took the pictures and mailed them off to [her] father of the bruises * * *. Clearly, this put her on notice of Mr. Ros' abusive nature and what did she do? The next day she left for Las Vegas.'
" We agree that the information available to defendant after the early-February 2008 incident gave her notice that ...