State v. Inloes
Decision Date | 24 November 2010 |
Docket Number | 08C44067; A140566. |
Citation | 239 Or.App. 49,243 P.3d 862 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Crystal Ann INLOES, Defendant-Appellant. |
Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and David Ferry, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General, filed the brief for respondent.
Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.
Defendant, who was convicted of four counts of first-degree criminal mistreatment (corresponding to each of her four children), appeals, contending that the evidence adduced at trial was legally insufficient to demonstrate that she "intentionally or knowingly with[held] necessary and adequate food, physical care or medical attention," ORS 163.205(1)(a), 1 from any of her children. Defendant acknowledges that she raised no challenge in the trial court to the sufficiency of the state's proof but contends that we should review and correct the purported error as an "error of law apparent on the face of the record." ORAP 5.45(1). Although the failure to move for a judgment of acquittal is ordinarily fatal to an unpreserved challenge to the sufficiency of the evidence, we conclude that, given the intervening elucidation of controlling legal principles in State v. Baker-Krofft, 348 Or. 655, 239 P.3d 226 (2010), the entry of convictions for criminal mistreatment on this record constitutes plain error, and we affirmatively exercise our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991), to address and remedy that error. Accordingly, we reverse defendant's convictions.
It would be of little benefit to the parties-or to the bench, the bar, or the public-to recount the circumstances of this case, and specifically the conditions in defendant's home, in detail. It suffices to say that, viewing the evidence (necessarily) in the light most favorable to the state, various areas of the home and its curtilage were filthy, cluttered and strewn with garbage, and malodorous. Further, a dryer in the basement was not properly vented, and there was a buildup of lint (which was flammable) behind the dryer, and there was a Drano container, without a lid, in a downstairsbathroom. Three of defendant's four children, ages eleven, eight, five, and two, were at home, and they appeared, to the police officers whoinspected defendant's home with her consent, to be healthy, clean, and appropriately clothed.
Defendant was convicted in October 2008. At that time, the controlling standard of culpability for withholding of "physical care" under the criminal mistreatment statutes was that announced in State v. Damofle/Quintana, 89 Or.App. 620, 624, 750 P.2d 518, rev. den., 305 Or. 671, 757 P.2d 421 (1988):
(Emphasis added.) Applying that standard in Damofle/Quintana, we concluded that the trial court there had properly denied a motion for judgment of acquittal, where the conditions in the defendant's home were esthetically appalling and unsanitary-cold, wet, filthy, and noisome-two of the defendant's young children were barefoot and in their underwear, and there was an accessible, partially filled gasoline container, as well as matches "within easy reach of the children." Id. at 622, 750 P.2d 518. See also State v. Baker-Krofft, 230 Or.App. 517, 523-24, 216 P.3d 335 (2009), rev'd, 348 Or. 655, 239 P.3d 226 (2010) ( ); accord State v. McCants/Walker, 231 Or.App. 570, 220 P.3d 436 (2009), rev'd by State v. Baker-Krofft, 348 Or. 655, 239 P.3d 226 (2010) ( ).
In August 2010, nearly two years after defendant's trial, the Supreme Court in Baker-Krofft addressed for the first time the Damofle/Quintana formulation, rejected thatconstruct, and consequently reversed our dispositions (and the convictions) in both Baker-Krofft and McCants/Walker. In so holding, the court rejected the state's contention that "physical care" broadly encompassed protecting a child from "potential environmental dangers," Baker-Krofft, 348 Or. at 661, 239 P.3d 226, in the home:
Id. at 663, 239 P.3d 226. Accordingly, the court concluded:
"Considering the text and context of ORS 163.200 and ORS 163.205 in light of their legislative history, we hold that a person withholds necessary and adequate physical care from a dependent person when the person keeps back from the dependent person those physical services and attention that are necessary to provide for the dependent person's bodily needs."
Id. at 666-67, 239 P.3d 226 (emphasis added). Consistently with that standard, the court held that the evidence of, inter alia, potential fire hazards in Baker-Krofft was legally insufficient because that evidence, at most, pertained only to a "risk of future harm" and there was no "evidence that defendant failed to protect her child from an immediate harm." Id. at 667, 239 P.3d 226.
Defendant contends that that analysis is dispositive here. As noted, she acknowledges, as she must, that she did not move for a judgment of acquittal; however, she asserts that, especially in light of Baker-Krofft, we should review her present challenge asimplicating "an error of law apparent on the face of the record." ORAP 5.45(1). The state, which opposed "plain error" review before the Supreme Court's decision in Baker-Krofft, now acknowledges that "the issue of whether the unsafe and unsanitary condition of defendant'shome supports a conviction for criminal mistreatment is no longer reasonably in dispute."
We have regularly declined to invoke "plain error" review to consider appellate challenges based on purported insufficiency of evidence in cases in which the criminal appellant failed to move for a judgment of acquittal. There are sound prudential and institutional reasons for that general approach, including encouraging adherence to requirements of preservation. Cf. Ailes, 312 Or. at 382 n. 6, 823 P.2d 956 (...
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