State v. McCants, 06C44334.

• Citation: 220 P.3d 436,231 Or. App. 570
• Decision Date: 04 November 2009
• Docket Number: A134848.,06C44334.,A134846 (Control).,06C45185.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Timothy Lee McCANTS, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Cynthia Geneva Walker, Defendant-Appellant.
• Court: Court of Appeals of Oregon

220 P.3d 436

231 Or. App. 570

STATE of Oregon, Plaintiff-Respondent, v. Timothy Lee McCANTS, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Cynthia Geneva Walker, Defendant-Appellant.

06C44334.

A134846 (Control).

06C45185.

A134848.

Court of Appeals of Oregon.

Argued and Submitted January 29, 2009.

Decided November 4, 2009.

Ryan T. O'Connor, Deputy Public Defender, argued the cause for appellants. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ROSENBLUM, Judge, and DEITS, Senior Judge.

HASELTON, P.J.

Defendants Timothy McCants and Cynthia Walker, who were jointly tried, appeal, challenging their convictions on three counts each of first-degree criminal mistreatment, ORS 163.205(1)(a), which were based solely on conditions in defendants' home. Each defendant contends on appeal that the state's proof was legally insufficient to establish that he or she "intentionally or knowingly with[held] necessary and adequate * * * physical care," ORS 163.205(1)(a), from any of defendants' children. As explained below, we conclude that, viewing the evidence and reasonable attendant inferences in the light most favorable to the state as the prevailing party, see State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998), defendants' challenge to the sufficiency of the state's proof fails. Accordingly, we affirm.

We recount the material facts, as established by the evidence at trial, consistently with our standard of review: Defendants lived with their three children, I (three years old), T (two years old), and C (five and one-half months old). On the afternoon of April 12, 2006, Salem Police Officers Moffitt and McCarley came to defendants' home to investigate a complaint of suspected drug activity.

When the officers approached the house, they observed a large stack of garbage near the garage, and stacks of boxes, sacks, and other items on the enclosed porch. Outside the front door, there was a "strong unpleasant odor of * * * garbage and dirty laundry" with "a little bit of urine or feces mixed in." Through the front window of the house, the officers saw into defendants' living room. They could see a couch covered with laundry and that the living room floor was "filthy," strewn with garbage, old food debris, and several soiled diapers.

The officers spoke with McCants at the front door. Moffitt explained to McCants that they were there to investigate suspected drug activity and that "the easiest way" to resolve the complaint would be to "take just a minute and walk us through the residence." McCants responded that he understood, but that he did not want the officers to enter. Moffitt

"then explained to [McCants]—while I was talking to him, I could see his daughter, [I], running around the living room behind him, so I knew that there were children present. I told him I was concerned— based on what I could see of the conditions of the house, I was concerned for the welfare of the kids, and I couldn't just walk away."

McCants acknowledged the house was messy, but maintained that the children were "okay." Even though the children appeared healthy and well fed, the officers placed defendants under arrest for criminal mistreatment in the first degree based on the condition of their home.

The officers then requested and received consent from the defendants to search their house. While Moffitt stayed with defendants in the living room, McCarley inspected the house, taking photographs. The house was littered throughout with food debris, laundry, garbage, and toys. Moffitt saw "several choking hazards" on the living room floor, which was cluttered with "several" pieces of plastic, plastic bags, and toys. According to Moffitt, "[i]t appeared to be very unsafe, * * * just [from] what I could see in the living room without looking at the rest of the house." At one point, McCarley saw T, the two-year-old, who had been sleeping in defendants' bedroom unattended, "holding a really small toy[ ] and * * * trying to put it in his mouth." McCarley was concerned that the small toy presented a "choking hazard."

The doorway to T and I's shared bedroom was partially blocked by a cabinet, and the floor was cluttered with toys, food containers, and garbage. McCarley believed those conditions created a fire hazard.

In the kitchen, the counters were "covered with old food containers, garbage, dirty dishes, [and] tools," the garbage was overflowing, and there was evidence of an ant problem. The refrigerator was clean and full of food. In the dining area, there were two plates with old food and a partially eaten apple. The bathroom was relatively clean except for a dirty diaper on the floor.

The garage, which was "packed full" of boxes and other items, was separated from the house by a locking door—and defendants claimed that they kept that door locked to keep the children out of the garage. However, when McCarley and McCants went into the garage, the two oldest children, I and T, followed them "without being corrected."

In the laundry area, which was accessible through the garage, there was a "[r]eally strong odor of mildew and mold," and laundry detergent and open bleach containers were strewn about. Walker told McCarley that there was a "huge" rat that had been living in the roof above the garage for "about a month" and that the rat would go into the laundry room. Defendants had set traps for the rat and had reported the problem to their landlord.

With respect to the duration and degree of the conditions in the home, McCants told Moffitt that the house had been "much worse * * * a couple of days before," and "even worse before that," but that it had only been messy for a total of "less than two weeks." According to McCarley, McCants admitted that the house was "now * * * spotless" compared to how it looked "a few months" before. Walker told McCarley that the house had been in this condition for a "few weeks" but that it had "mostly * * * gotten * * * bad in the past few days."

McCants admitted that the condition of the home was "unacceptable" for children and that the pieces of plastic presented a "choking hazard." Walker admitted that the home was "not acceptable for her three kids." At trial, she also acknowledged that the presence of small toys (e.g., Barbie doll accessories) belonging to her oldest child, I, located in the bedroom I shared with T, were "choking hazards" to the younger children, T and C, but claimed that I had scattered the toys just before McCarley inspected defendants' home. Usually, Walker claimed, the toys were kept in a locked closet and brought out only when the two younger children were not around.

McCarley believed that defendants' house was not a safe environment for the children based on the combination of "the odor, the garbage, * * * the clutter, [and] the choking hazards" present. Moffitt believed that the house was not safe for similar reasons. At some point, the officers called for a City of Salem code enforcement officer, who described the house as "very messy" and posted a sign designating defendants' house as a public nuisance. When the code enforcement officer returned to the house approximately two weeks later, the conditions had been rectified.

Defendants were each charged with three counts of criminal mistreatment in the first degree for "knowingly withhold[ing] necessary and adequate * * * physical care," ORS 163.205(1)(a), from each of their three children. Defendants waived a jury trial and were tried jointly to the court.

At the close of evidence, neither defendant moved for a judgment of acquittal (MJOA). However, in closing argument, Walker's counsel did argue that there was insufficient evidence for the trial court to find that defendants' conduct constituted "withhold[ing] necessary and adequate * * * physical care." ORS 163.205(1)(a). In advancing that contention, Walker's counsel did not distinguish between or among the three counts against her client; rather, the assertion of evidentiary insufficiency pertained generically to the three counts as an undifferentiated whole-i.e., the conditions in the home were not of such a nature and degree that they presented a culpable risk to any child. McCants's counsel, whose closing argument followed, similarly, generically disputed the legal sufficiency of the state's proof, again without differentiating among individual counts.

The trial court convicted defendants on all counts, finding that "[t]his is just not a dirty house, and it's not a house that got this dirty over two days of [Walker] being sick. This house is absolutely filthy, and I consider it a danger to those children."

On appeal, each defendant raises three assignments of error, asserting that the state's proof as to each count on which he or she was convicted (relating to each of the three children) was legally insufficient. Defendants advance one common argument as to all six assignments of error—that is, they make no effort to distinguish between themselves as to their respective mental states or to distinguish among the circumstances of the three children and nature or degree of any risk presented to them, individually, by various conditions in the home.

Rather, as before the trial court, the overarching gravamen of defendants' position is that there is insufficient evidence to support any of their convictions for criminal mistreatment in the first degree. Specifically, defendants contend that the extant conditions in their home, and any failure to address those conditions, did not constitute "withhold[ing] necessary and adequate * * * physical care" within the meaning of ORS 163.205(1)(a) because those conditions did not present a "significant likelihood of serious harm" to...