Argued and Submitted June 18, 2014
Washington County Circuit Court. C120563CR. Suzanne Upton, Judge.
Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael S. Shin, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General.
Before Duncan, Presiding Judge, and Flynn, Judge, and Edmonds, Senior Judge.[*]
[269 Or.App. 397] FLYNN, J.
Defendant appeals from a judgment of conviction for two counts of first-degree criminal mistreatment under ORS 163.205(1)(b)(A). The conviction is based on two incidents in which a dog owned by defendant's live-in boyfriend bit defendant's daughter. Defendant argues that the trial court erred in denying her motion for judgment
of acquittal (MJOA) because the state proffered insufficient evidence to support the inference that she " intentionally or knowingly * * * cause[d] physical injury" to her daughter, as required for conviction under ORS 163.205(1)(b)(A). The state responds that a rational factfinder could infer from the dog's history of biting children that defendant knew that the dog had the " propensity to bite" and that this permits an inference that defendant violated the statute when she knowingly failed to keep her daughter away from the dog. We conclude that ORS 163.205(1)(b)(A) requires proof that a defendant knowingly engaged in assaultive conduct. Because the evidence does not permit this inference, we reverse.
We begin by describing the events giving rise to the conviction in the light most favorable to the state. See, e.g., State v. Turley, 202 Or.App. 40, 48, 120 P.3d 1229 (2005), rev den, 340 Or. 157, 130 P.3d 786 (2006) (describing the standard by which we review the denial of an MJOA). Defendant lived in a small motor home with her boyfriend, her 10-year-old daughter (V) from a prior relationship, and the boyfriend's dog. The boyfriend's three-year-old son (E) from a prior relationship also stayed with them at times.
Both of the bite incidents upon which the conviction is based occurred during the summer of 2011. In the first charged incident, V was petting the dog while it slept. After about five to 10 minutes, the dog woke up and bit V on the neck, leaving two bleeding puncture wounds. The wounds bled for at least 30 minutes and one left a scar. Defendant and her boyfriend were both asleep when the incident occurred.
[269 Or.App. 398] The second charged incident occurred as the dog and V rode together in the back seat of a car, with defendant and her boyfriend in the front. V was petting the dog when it suddenly turned and bit the right side of V's face, scratching her nose and cheek and splitting open her lip, which required three stitches to close. Defendant instructed V to lie to the doctor about how the injury occurred. Prior to those charged incidents and during that same summer, the dog also had bitten E on the face, requiring 12 stitches, after he apparently had provoked the dog, and bitten V once on the arm after she accidentally stepped on its tail.
Defendant was convicted following a trial to the court on two counts of first-degree criminal mistreatment under ORS 163.205(1)(b)(A) after unsuccessfully moving for a judgment of acquittal. In opposing defendant's motion for judgment of acquittal, the state argued below: " [A]fter two bites, not one, but two bites and one being a very, very, very significant life scarring injury to--to a young child[, defendant] knows that [the] dog has a propensity to bite." The trial court agreed that this " knowledge" was sufficient for a conviction of first-degree criminal mistreatment, ORS 163.205(1)(b)(A), and denied defendant's motion. On appeal, defendant renews her argument that the state's evidence does not permit an inference that defendant " knowingly" caused the injuries to her daughter.
At the outset, we address defendant's argument that the charges of first-degree criminal mistreatment under ORS 163.205(1)(b)(A) required the state to prove that defendant " knowingly" caused the injuries to her daughter. As to those charges, the indictment alleges that defendant, " having assumed the permanent or temporary care, custody or responsibility for the supervision of [V], a dependent child, did unlawfully and knowingly cause ...