and submitted March 22, 2018
County Circuit Court 15CR57849 Claudia M. Burton, Judge.
M. Du Clos, Deputy Public Defender, argued the cause for
appellant. On the opening brief were Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, and Vanessa Areli,
Deputy Public Defender, Offce of Public Defense Services.
Also on the reply brief was Ernest G. Lannet, Chief Defender,
Criminal Appellate Section, Offce of Public Defense Services.
Michael A. Casper, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Defendant appeals a judgment of conviction for
recklessly endangering another person, ORS 163.195. Defendant
used a slingshot to launch a glass marble at a vacant bus
shelter from a distance of four to five feet. Because the bus
shelter was constructed of a Plexiglas-type material,
defendant could see that no one was in or near the bus
shelter at the time. Defendant assigns error to the denial of
her motion for judgment of acquittal. Held: The
trial court erred in denying defendant's motion for
judgment of acquittal. Viewing the record in the light most
favorable to the state, no reasonable juror could find that
defendant was aware of and consciously disregarded a
substantial and unjustifiable risk that her conduct would
cause serious physical injury to another person.
Or.App. 695] AOYAGI, J.
was convicted of recklessly endangering another person, ORS
163.195, for using a slingshot to shoot a marble at a vacant
bus shelter. No one was in the bus shelter at the time, and
the only people in the general vicinity were some distance
away in a parking lot. The trial court denied defendant's
motion for judgment of acquittal. Defendant appeals,
assigning error to that ruling. We agree with defendant that
the state's evidence was insufficient to convict her of
recklessly endangering another person. Accordingly, we
reverse and remand.
review the denial of a motion for judgment of acquittal to
determine whether, viewing the facts and all reasonable
inferences that may be drawn from them in the light most
favorable to the state, a rational trier of fact could have
found the essential elements of the crime proved beyond a
reasonable doubt. State v. Shifflett, 285 Or.App.
654, 656, 398 P.3d 383 (2017). We state the facts in
accordance with that standard.
December 11, 2015, defendant decided to try her hand at using
a slingshot and chose to do so by shooting a marble at a bus
shelter. The bus shelter at issue was located near the
parking lot of a Walgreens store. Coincidentally, a Marion
County sheriff's deputy was on routine patrol that night
and happened to be driving through the Walgreens parking lot
at the very moment that defendant did the deed. From a
distance of approximately 50 feet, Deputy Lane observed a
blue Toyota Corolla approaching the bus shelter as it
travelled down the main road. The vehicle slowed and moved
into the bike lane. As it pulled alongside the vacant bus
shelter, Lane saw defendant lean out of the open rear
passenger window and use a slingshot to fire something into
the bus shelter from a distance of four to five feet. The bus
shelter was about eight feet wide and constructed of a
Plexiglas-type material. Lane heard a "thud" when
the projectile hit the bus shelter.
took off after the suspect vehicle and initiated a traffic
stop. He arrested defendant, who, after receiving her
Miranda rights, confessed that she had fired the
slingshot [292 Or.App. 696] and that she had intended to
damage the shelter's "glass" wall. With
defendant's consent, the deputy seized from the vehicle
both the slingshot and a bag of small, asymmetric glass
marbles similar to those used in aquariums. In the meantime,
another deputy went to the bus shelter to assess the
consequences of defendant's misdeed. Upon inspection, the
bus shelter had various scratches, marks, and dings, but it
did not appear to have any fresh damage caused by the marble.
The marble itself had shattered on impact and fallen to the
ground. Ultimately, the state opted to charge defendant with
one count of recklessly endangering another person, ORS
trial, after the conclusion of the state's case-in-chief,
defendant moved for a judgment of acquittal based on
insufficient evidence. The trial court acknowledged that it
was a "close question" but denied the motion. The
jury thereafter found defendant guilty, and the court entered
a judgment of conviction. Defendant appeals, assigning error
to the denial of her motion for judgment of acquittal.
ORS 163.195(1), "[a] person commits the crime of
recklessly endangering another person if the person
recklessly engages in conduct which creates a substantial
risk of serious physical injury to another person." In
this context, "serious physical injury" means
"physical injury which creates a substantial risk of
death or which causes serious and protracted disfigurement,
protracted impairment of health or protracted loss or
impairment of the function of any bodily organ." ORS
161.015(8). "Recklessly" means the person "is
aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and
degree that disregard thereof constitutes a gross deviation
from the standard of care that a reasonable person would
observe in the situation." ORS 161.085(9).
agree with defendant that the state's evidence was
insufficient to establish that she was aware of and
consciously disregarded a substantial and unjustifiable risk
[292 Or.App. 697] that her conduct would cause serious
physical injury to another person. It may be true, as the
trial court suggested when denying the motion, that defendant
could have caused serious physical injury to someone if the
marble had struck a person in the eye. At a minimum, it seems
likely that striking someone in the eye at close range would
create a substantial risk of serious physical injury.
Defendant's conduct, however, was not likely to result in
anyone being shot in the eye. Failing to appreciate the
durability of ...