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State v. Walker

Court of Appeals of Oregon

February 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MATTHEW RYAN WALKER, aka Matthew Walker, Defendant-Appellant.

          Argued and submitted January 9, 2018.

          Yamhill County Circuit Court 15CR45756; Ronald W. Stone, Judge.

          Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office 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 Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a judgment convicting him of second-degree child neglect and recklessly endangering another person, after the victim, the two-year-old daughter of defendant's fiancée, found and ingested methamphetamine. Defendant assigns error to the trial court's denial of his motions for judgment of acquittal on each count. In his first assignment, he contends that the court should have granted a judgment of acquittal on the child neglect charge because the state failed to show that defendant had left the victim unattended. In his second assignment, defendant asserts that the court should have granted a judgment of acquittal on the reckless endangerment charge because the state did not prove that defendant was aware of and consciously disregarded the risk that the victim would find and ingest methamphetamine. Held: The trial court should have granted defendant's motion for judgment of acquittal on the child neglect charge because the state did not prove that the victim was unattended. However, the trial court did not err when it denied defendant's judgment on the reckless [296 Or.App. 2] endangerment charge because the record permits an inference that defendant was aware of and consciously disregarded the risk that the victim would find and ingest methamphetamine.

         Judgment of conviction for second-degree child neglect reversed; remanded for resentencing; otherwise affirmed.

         [296 Or.App. 3] HADLOCK, P. J.

         Defendant appeals a judgment convicting him of second-degree child neglect, ORS 163.545, and recklessly endangering another person, ORS 163.195, after the victim, the two-year-old daughter of defendant's fiancee, found and ingested methamphetamine.[1] Defendant assigns error to the trial court's denial of his motions for judgment of acquittal on each count. In his first assignment, he contends that the court should have granted a judgment of acquittal on the child neglect charge because the state failed to show that defendant had left the victim unattended. In his second assignment, defendant asserts that the court should have granted a judgment of acquittal on the reckless endangerment charge because the state did not prove that defendant was aware of and consciously disregarded the risk that the victim would find and ingest methamphetamine. For the reasons set out below, we agree with defendant that the trial court should have granted his motion for judgment of acquittal on the child neglect charge. However, we reject his argument that he was entitled to a judgment of acquittal on the charge of reckless endangerment. Accordingly, we reverse the judgment of conviction for second-degree child neglect but otherwise affirm.

         In reviewing a trial court's denial of a motion for a judgment of acquittal, we determine whether, "resolv[ing] all conflicts of evidence in favor of the state and giv[ing] the state the benefit of all reasonable inferences," the record provides sufficient evidence "from which a reasonable trier of fact could find the elements of the crime beyond a reasonable doubt." State v. Rader, 348 Or. 81, 91, 228 P.3d 552 (2010).

         This case arose after J was hospitalized in September 2015. Medical personnel noted several concerns: J had an elevated heart rate and high blood pressure; she was overly excited, unable to stop moving or talking, talking rapidly, behaving repetitively; and her pupils were large.[2] [296 Or.App. 4] J's urine tested positive for methamphetamine as well as amphetamine, "which is the break down product when methamphetamine is metabolized." An examining physician, Dr. Valvano, testified that he believed "the most likely explanation, given her age and her level of symptoms, is that she ingested [the methamphetamine]" and that "the amphetamine got into her system at some point during [that Tuesday] morning."

         Defendant had completed a prison term and a stay at a halfway house about a month before J was hospitalized. During that next month, defendant had lived on weekdays at the home where J lived with her eight-year-old sister and their mother, Schoenherr, who was defendant's fiancee. (He spent weekends elsewhere.) The home had an upstairs, where a full bathroom was located, and a main floor with a partial bathroom. Schoenherr, her children, and defendant slept downstairs, but at least some of the residents' clothing was kept on the upper floor. Defendant was addicted to methamphetamine and Schoenherr was a recovering addict.

         Defendant and Schoenherr knew J to be a "very active" child who would eat things from the floor or garbage. A few weeks before J was admitted to the hospital, defendant had admitted to his parole officer that he had been using marijuana and "quite a bit" of methamphetamine while he was staying with Schoenherr. As a result, defendant was taken into custody in mid-September 2015 and he served a six-day jail sanction; he later described himself as having been "pretty much high the whole time" he was in jail. During a conversation with Schoenherr while serving that sanction, defendant told her that he understood it was not safe to have drugs and paraphernalia around the children. Defendant also told Schoenherr that she needed to remove a methamphetamine pipe from the house, which she found in the zipped pocket of a jacket that was in an upstairs closet. While defendant was in jail, Schoenherr deep-cleaned the home and found unused straws that could be used to sniff methamphetamine, known as "tooties," above an entertainment center.

         After being released from jail, defendant stayed with his mother over the weekend, then returned to Schoenherr's [296 Or.App. 5] home on the evening of Sunday, September 27. At some point after returning to Schoenherr's, defendant used methamphetamine. When a detective later asked him if it was possible he dropped some of it, he responded, "Maybe it's possible." The day after returning to Schoenherr's, Monday, defendant had two visitors, including his friend Santoya, whom Schoenherr described as "struggling with a drug addiction," and who came by for about 45 minutes. During his visit, Santoya asked defendant if he would "keep some of [Santoya's] stuff" in the home, which defendant refused to do. Defendant told Santoya he could shower, and, other than a short conversation with defendant on the front porch, Santoya spent his visit in the upstairs bathroom. Defendant later told a detective that "there [was] a chance that [Santoya] did get high in the house." Defendant based that observation on the way Santoya was acting: "He was falling asleep when he got [to the house]. When he left he was wide awake [.]" Defendant acknowledged that he and Schoenherr did not go through the home after Santoya and the other visitor departed to "make sure they didn't leave anything there," but instead went to bed. Defendant also said that he and Schoenherr had cleaned the kitchen and living room after he returned from jail, but had not cleaned the downstairs bathroom and had not cleaned upstairs (including the bathroom where Santoya had spent time).

         The next morning (Tuesday, September 29), defendant woke up at 5:45 a.m. Schoenherr, who had taken melatonin as a sleep aid, [3] slept through her 6:30 a.m. alarm, and J woke up at around 7:00 a.m. Defendant made J breakfast and J got in bed with Schoenherr. Schoenherr remained in bed-sleeping at least part of the time-until 9:30 a.m.; she remained tired after she got up.[4] While Schoenherr was in bed, defendant left J with Schoenherr both to shower and to smoke a cigarette outside. Defendant ...


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