and submitted December 6, 2016, De La Salle High School,
County Circuit Court 14CR1254; MARTIN E. STONE, JUDGE.
Johansen, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
J. Payne, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
Summary: Defendant appeals his convictions of two counts of
criminal mistreatment in the frst degree, based on his having
left his two children unattended in a car at the scene of an
automobile accident. Defendant contends that the children
were not left unattended because, they were left with their
injured mother and a person who had witnessed the accident
and stopped to offer assistance, and that the trial court
therefore erred in denying his motion for judgment of
acquittal. Held: The trial court erred in denying
defendant's motion for judgment of acquittal, because the
state failed to meet its burden to establish the element that
defendant left the children unattended.
of criminal mistreatment reversed; remanded for resentencing;
Or.App. 193] EGAN, C. J.
appeals from a judgment entered after a jury returned guilty
verdicts on multiple offenses arising out of a single-car
accident. He contends that the trial court erred in denying
his motion for judgment of acquittal on two counts of
criminal mistreatment in the first degree. ORS 163.205. In
reviewing the trial court's denial of defendant's
motion for judgment of acquittal, we view the evidence in the
light most favorable to the state to determine whether a
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt, State v.
Rose, 311 Or. 274, 281, 810 P.2d 839 (1991), and
conclude that the trial court erred in denying
defendant's motion. We therefore reverse defendant's
criminal mistreatment convictions.
and his family were involved in a single-car accident on a
state highway when defendant fell asleep at the wheel and
drove their car off the road, where it hit a pole on the
passenger side, skidded on gravel, returned briefly to the
highway, and then came to a stop on the shoulder of the
highway. Young, who was driving his truck behind defendant,
witnessed the accident and stopped to assist. Defendant's
girlfriend, Olson, was in the front passenger seat of the
car, and their infant daughters were in car seats in the
back. Defendant determined that Olson was injured and that
the children were uninjured. He asked Young for help freeing
Olson from the car. When the two men could not open the
passenger-side door, Young said that he would call 9-1-1.
Defendant said, "You call 9-1-1, I'm running. I have
a bench warrant out for my arrest." As Young called
9-1-1, defendant ran across the road and hid in the trees.
Young stayed with the family until the police arrived shortly
thereafter, and Olson and the children were transported by
ambulance to the hospital, where Olson ultimately underwent
surgery to repair a broken arm. The children were uninjured.
Defendant was subsequently arrested and charged with a number
jury trial, defendant was found guilty of, among other
crimes, two counts of criminal mistreatment in the first
degree, ORS 163.205, based on his having left the [294
Or.App. 194] children unattended. Under ORS 163.205(1)(b)(C),
person with a legal duty to provide care for a dependent
person commits the crime of first-degree criminal
mistreatment if the person leaves the dependent person
"unattended at a place for such period of time as may be
likely to endanger the health and welfare of that
person." Defendant had filed a motion for judgment of
acquittal on the ground that the children had not been left
unattended; the trial court denied the motion, concluding
that the jury would have to determine whether Young was a
person who would attend to the children. On appeal, defendant
assigns error to that ruling. Defendant's narrow
contention on appeal is that the evidence is not sufficient
to create a question for the jury as to whether the children
163.205 does not define the term "unattended." It
is defined in Webster's Third New Int'l
Dictionary 2482 (unabridged ed 2002) as "not
attended," "lacking a guard, escort, caretaker, or
other watcher," "unaccompanied," "not
cared for," "not watched with care, attentiveness
or accuracy." Defendant contends that he did not leave
the children "unattended" within the common meaning
of the term as used in ORS 163.205(1)(b)(C), because the
children were left in the care of Olson and Young.
state responds that, even when another person is present, a
dependent person may be "unattended" for purposes
of ORS 163.205, if the person is unable or unwilling to
attend to the dependent person. The state contends that
Olson, who was injured, was unable to care for the children,
[294 Or.App. 195] and that Young had no legal duty to care
for them and had not expressed a willingness to do so.
Additionally, the state contends, a car parked on the
shoulder of a highway is at risk of a second collision, and
there was no evidence that Young was a person who could
attend to the children in the event of a second collision.
Under those circumstances, the state contends, a jury could
find that the children were "unattended," and the
trial court did not err in rejecting defendant's motion
for judgment of acquittal.
parties cite legislative history that shows that when the
legislature amended ORS 163.205 in 1993 to include
subparagraph (1)(b)(C), it intended to include within the
criminal mistreatment statute situations analogous to