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State v. Wakefield

Court of Appeals of Oregon

July 5, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
RACHAEL DAWN WAKEFIELD, Defendant-Appellant.

          Argued and submitted March 22, 2018

          Marion County Circuit Court 15CR57849 Claudia M. Burton, Judge.

          Stacy 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 General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case 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.

          [292 Or.App. 695] AOYAGI, J.

         Defendant 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.

         We 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.

         On 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.

         Lane 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.[1] 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 163.195.

         At 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.

         Under 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).

         We 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 ...


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