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State v. Long

Court of Appeals of Oregon

September 26, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSEPH CHARLES LONG, Defendant-Appellant.

          Argued and submitted December 6, 2016, De La Salle High School, Portland.

          Coos County Circuit Court 14CR1254; MARTIN E. STONE, JUDGE.

          Eric 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 Services.

          Jeff 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.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case 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.

         Convictions of criminal mistreatment reversed; remanded for resentencing; otherwise affirmed.

         [294 Or.App. 193] EGAN, C. J.

         Defendant 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.

         Defendant 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 of offenses.

         After a 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), [1] a 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 were unattended.[2]

         ORS 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.

         The 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.

         Both 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 ...


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