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State v. Cook

Court of Appeals of Oregon

June 14, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JUSTIN LEE COOK, Defendant-Appellant.

          Argued and submitted September 30, 2015

         Marion County Circuit Court 13C44836, 13C43278; David E. Leith, Judge.

          Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Michael S. Shin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary:

         Defendant, who had been ordered not to have contact with his wife or children as a condition of probation following prior criminal convictions, nonetheless removed his young son, C, from another person's home. Police officers, who responded to a report of a possible kidnapping, spotted defendant and ordered him to release C. Although defendant did not immediately comply, he let the child go after a few minutes. The trial court subsequently convicted defendant of recklessly endangering another person, ORS 163.195, and also revoked defendant's probation on the earlier convictions. In this consolidated appeal, defendant seeks reversal of his reckless endangerment conviction (case A155542) and remand for resentencing in the case in which his probation was revoked (case A155541). On appeal, defendant argues that the evidence does not support a finding, beyond a reasonable doubt, that he was aware of and consciously disregarded a substantial risk of serious physical injury to C, as is required by ORS 163.195.

         [286 Or.App. 114] Held:

         The record does not include evidence supporting a finding that defendant was aware of a substantial risk of serious physical injury risk to C and consciously disregarded it. Accordingly, the trial court erred when it denied defendant's motion for judgment of acquittal on the reckless endangerment charge. Because the sentence in case A155541 was predicated, in part, on the conviction in case A155542, the judgment in case A155541 is remanded for resentencing.

         In A155542, conviction for reckless endangerment reversed; otherwise affirmed. In A155541, remanded for resentencing.

         [286 Or.App. 115] HADLOCK, C. J.

         Defendant, who had been ordered not to have contact with his wife or children as a condition of probation following other criminal convictions, nonetheless removed his two-year-old son, C, from another person's home after he learned that C had been injured by a dog at that house. That incident was reported to police officers, who responded to investigate a possible kidnapping. When officers spotted defendant and C, they ordered defendant to stop and to release C to them. Although defendant did not immediately comply, he let the child go after a few minutes. Defendant subsequently was convicted of recklessly endangering another person, ORS 163.195 (reckless endangerment), and the trial court also revoked defendant's probation on the earlier convictions. In this consolidated appeal, defendant seeks reversal of his reckless endangerment conviction (case A155542), remand for resentencing in the case in which his probation was revoked (case A155541), and reversal of the trial court's requirement that he pay attorney fees in both cases. For the reasons set forth below, we reverse the reckless endangerment conviction in case A155542 and remand for resentencing in case A155541.

         In reviewing the trial court's denial of defendant's motion for judgment of acquittal, we set forth the facts in the light most favorable to the state. State v. Bivins, 191 Or.App. 460, 462, 83 P.3d 379 (2004). In early 2013, defendant was convicted of reckless endangerment and strangulation. As a condition of his probation in that case, defendant was prohibited from having contact with his wife or their three young children, including C. However, one day in August 2013, while defendant's wife and the children were visiting her friends, Hall and Harris, at their residence (the residence), defendant appeared outside the house at about 8:30 or 9:00 in the morning. According to Hall, defendant seemed "a little bit agitated, upset, " as well as intoxicated. Defendant primarily interacted with the children and, at one point, asked one of the children whether Hall was their "new daddy." Defendant's wife also thought that defendant was "under the influence" and that caused her concern about his contact with the children because, when he does "any drugs or drinking, " it "messes with his thinking" and [286 Or.App. 116]"he does things he wouldn't normally do." Defendant's wife told defendant, who "looked stressed, not right, " that he had to leave. Defendant left and, shortly thereafter, his wife departed as well, leaving all three children in the care of Hall and Harris.

         Sometime after defendant and his wife left, Hall's dog injured C. Defendant returned to the Hall residence, and Harris sent defendant's wife a text message informing her of defendant's return. Meanwhile, defendant, seeing C's injury, became upset and stated that he did not want to leave C with Hall. When defendant's wife arrived back at the residence, she found defendant sitting with C on his lap. At that point, she told defendant that he was not welcome and that he needed to leave, assuring him that she would handle the situation. After ...


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