Argued and Submitted May 29, 2014
Marion County Circuit Court. 12C48685. Dennis J. Graves, Judge.
Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Peenesh H. Shah, Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[266 Or.App. 661] LAGESEN, J.
Defendant appeals from a judgment of conviction for three counts of furnishing alcohol to persons under 21 years of age, in violation of ORS 471.410(2), and one count of endangering the welfare of a minor, in violation of ORS 163.575. She assigns error to the trial court's denial of her motion for a judgment of acquittal on the furnishing counts, contending that the court's denial of the motion rested on an erroneous interpretation of ORS 471.410(2), and the evidence at trial was insufficient to support her convictions
under a correct interpretation of the statute. We reverse in part.
Defendant was charged by amended information with three counts of furnishing alcohol to persons under 21 years of age, ORS 471.410(2), and one count of endangering the welfare of a minor, ORS 163.575. With respect to the furnishing counts, the information alleged that defendant " did unlawfully make available alcoholic liquor" to three different minors: H, LC, and R. The state's theory at trial was that the alcohol that defendant " did unlawfully make available" was vodka that those three minors consumed after finding it in the kitchen of the house where defendant was a tenant. The evidence at trial, viewed in the light most favorable to the state, revealed the following.
Defendant, who was 37 years old at the time of trial, rented a room in the home of Tilahun, who was 25. Defendant moved into Tilahun's house sometime between November 14 and November 16, 2012. Within a few days after defendant moved in, Tilahun hosted a party for a local musical group. Tilahun created an event on her Facebook page and sent private invitations to approximately 15 to 20 prospective guests. The guests at the party included high school students, ranging in age from 14 to 17.
The first named victim, H, 15, was not familiar with defendant; she learned about the party from a friend. H arrived at the house at around 8:00 p.m. H estimated that there were approximately 10 people at the residence when she arrived. H did not see any alcohol at the residence [266 Or.App. 662] for the first hour that she was there. However, at around 9:00 p.m., a crowd of approximately 20 people arrived. H testified that, at that point in time, alcohol became available and people began drinking. Guests, including H, began drinking from a bottle of vodka sitting on the kitchen counter. H consumed approximately four shots of vodka over the course of the evening.
The second named victim, LC, 17, knew neither Tilahun nor defendant and did not receive a personal invitation to the party; she " heard about it" from other people. LC arrived at the party around 9:00 p.m., with a " big group" of people. When she arrived, there were a few people inside and a few people outside; she estimated that there were approximately six to eight people total at the house at that time. LC testified that, at the time she arrived, the people in the house were doing " [n]othing yet" ; but she also testified later that people in the house were " [d]rinking, smoking." According to LC, " [a] lot of people ha[d] their own" alcohol, but she did not bring her own alcohol to the party. Instead, LC poured and consumed " a few shots" of vodka from a bottle that she found in the kitchen.
The third named victim, R, 15, was similarly unfamiliar with Tilahun and defendant; she, too, learned about the party " probably through friends." When R arrived at the party--she could not recall precisely when--she and friends sat around talking for awhile, and did not start drinking until an hour or two later. R drank Jagermeister from a bottle belonging to a ...