State v. Kaylor

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: SERCOMBE
• Citation: State v. Kaylor, 252 Or App 688, 289 P3d 290 (Or. App. 2012)
• Decision Date: 17 October 2012
• Docket Number: 08C40689; A140023.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Rebecca KAYLOR, Defendant–Appellant.

252 Or.App. 688

289 P.3d 290

STATE of Oregon, Plaintiff–Respondent,

v.Rebecca KAYLOR, Defendant–Appellant.

08C40689; A140023.

Court of Appeals of Oregon.

Argued and Submitted Aug. 31, 2011.

Decided Oct. 17, 2012.

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

Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Linda Wicks, Assistant Attorney General.

SERCOMBE, J.

Defendant appeals a judgment of conviction for criminal mistreatment in the first degree, ORS 163.205, strangulation, ORS 163.187, and tampering with a witness, ORS 162.285. On appeal, defendant contends that the trial court erred in denying her motions for judgment of acquittal on the first-degree criminal mistreatment and witness tampering charges. She also contends that the trial court erred in admitting evidence of her prior bad acts, including evidence that she had previously threatened the victim and another person with physical harm. We agree with defendant that the court erred in denying her motions for judgment of acquittal and in admitting evidence of her past statements. Accordingly, we reverse all of defendant's convictions and remand for further proceedings on the strangulation charge.

Because this case arises, in part, from the court's denial of defendant's motions for judgment of acquittal, we state the facts in the light most favorable to the state. State v. Everett, 249 Or.App. 139, 140, 274 P.3d 297, rev. allowed, 352 Or. 377 (2012). Defendant was working as a certified nursing assistant (CNA) at a nursing home where the victim resided. The victim suffered from dementia and, at times, responded combatively to care. Rivera, another CNA that worked with defendant, testified that she was attending to the victim's roommate when defendant entered the room and began cleaning the victim. Rivera noticed that the victim was resisting care, and, accordingly, she offered to help defendant. Together—with defendant standing near the victim's head and Rivera near his lower body—they rolled the victim over onto his side in order to clean him. At that time, the victim “was yelling” and “hollering” in a “very loud” manner because “he [didn't] like what [they were] doing.” Rivera testified that, while she was cleaning the victim, he suddenly became very quiet and that, when she looked up, she saw that defendant had her hand “pushed over his mouth, firmly pushed over his mouth.” Rivera explained that she believed that defendant “was applying pressure, because he was bright red in the face. He was wide-eyed. This is a man who doesn't open his eyes, on a general rule.” Rivera further testified that defendant's hand was in that position for 10 seconds, that the victim was not holding defendant's hand in place, and that he “looked terrified,” as if he could not breathe. Defendant then told Rivera that the victim had bitten her hand, and she left to tend to her bite wound. Later that day, after seeking advice from Mayes, another CNA, Rivera reported her observations to a supervisor.

The following day, defendant called Mayes and left a voicemail message: “It's 5:11[p.m.] (Inaudible.) If you happen to see [Rivera], tell her she may not want to fucking cross my path because I will kill her fucking ass. Alright, I'll talk to you later. Bye.” Minutes later, at 5:25 p.m., defendant sent a text message to Mayes: “So when you see her tell that bitch that I will kill her if I get fired[ ].” At approximately 5:30 p.m., defendant's supervisor called the police to report possible elder abuse by defendant. A grand jury indicted defendant for first-degree criminal mistreatment, strangulation, and two counts of tampering with a witness.

Before trial, the state moved in limine for a ruling on the collective admissibility of “evidence of defendant's prior verbal and physical abuse of residents in her care,” arguing that defendant's prior acts were relevant to show her “scheme, plan, her way of dealing with people in her care that presented problems to her.” The court ruled that defendant's acts in the six months prior to the alleged crimes were admissible, and, at trial, the state introduced testimony from Rivera and Mayes that defendant had previously verbally and physically abused residents in her care.

After the state rested its case, defendant moved for judgments of acquittal on all counts. The trial court denied all of defendant's motions. The jury found defendant guilty of first-degree criminal mistreatment, strangulation, and one count of witness tampering, and defendant appealed.

We first consider defendant's assignments of error related to the trial court's denial of her motions for judgment of acquittal. We review a trial court's denial of a motion for judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the state proved all the essential elements of the offense beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

[1] First, defendant contends that the court erred in denying her motion for judgment of acquittal on the first-degree criminal mistreatment charge. ORS 163.205(1)(a) provides that a person commits that crime if

“[t]he person, in violation of a legal duty to provide care for another person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of another person, intentionally or knowingly withholds necessary and adequate food, physical care or medical attention from that other person[.]”

The state's theory at trial was that defendant had violated that statute by “withhold[ing] necessary and adequate * * * physical care” from the victim when she failed to remove her hand from his mouth. On appeal, defendant argues that her act of placing her hand over the victim's mouth cannot constitute “ withhold [ing] necessary and adequate * * * physical care” within the meaning of ORS 163.205(1)(a). (Emphasis added.) Specifically, defendant argues that the legislature intended ORS 163.205(1)(a) to criminalize nonfeasance rather than affirmative conduct. In response, the state reiterates its argument from below that “once defendant had her hand over the victim's mouth and was obstructing his breathing, she had a duty to remove her hand, and to provide physical care to restore his breathing.” ^FN1 We conclude that defendant's act of placing her hand over the victim's mouth does not constitute “withhold[ing] necessary and adequate * * * physical care” from the victim under ORS 163.205(1)(a).

As noted, ORS 163.205(1)(a) provides that a person commits first-degree criminal mistreatment if “[t]he person, in violation of a legal duty to provide care for another person, * * * intentionally or knowingly withholds necessary and adequate * * * physical care” from the dependent person. In State v. Baker–Krofft, 348 Or. 655, 658, 239 P.3d 226 (2010), which decided two cases, the defendants were indicted for “withhold[ing] necessary and adequate * * * physical care” from their children based on the cluttered and hazardous condition of their homes. The trial courts denied their motions for judgment of acquittal, and the defendants were convicted of violating ORS 163.200 ^FN2 and ORS 163.205, respectively. Id. at 659, 239 P.3d 226. We affirmed the trial court's decision in each case. Id. On review, the state argued that “potential environmental dangers are covered by [ ORS 163.205] because ‘[k]eeping a child safe necessarily includes protecting him from dangers in his environment.’ ” Id. at 661, 239 P.3d 226 (second brackets in Baker–Krofft ).

The Supreme Court disagreed and, instead, construed ORS 163.205(1)(a) to “apply only if the person with the duty to provide care withholds or keeps back food, physical care, or medical attention ‘from th[e dependent] person’; that is, the statutes rest on the premise that the actor keeps back something (food, physical care, or medical attention) from a person who would not otherwise be able to obtain it for him or herself.” Id. at 662, 239 P.3d 226 (brackets in original). On that basis, the court concluded that “a defendant withholds physical care from a dependent person when the defendant keeps back from the dependent person those physical services and attention that are necessary to provide for the dependent person's bodily needs.” Id. In each case, there was no evidence that the defendants had “failed to provide for their children's bodily needs or protect them from an immediate harm.” Id. at 667, 239 P.3d 226.

In doing so, the Supreme Court explained that the legislative history supported its interpretation of ORS 163.205(1)(a). The court described that history as follows:

“The bill, as drafted, raised vagueness concerns, and Senators Fadeley and Carson undertook to redraft the bill. Their work produced a bill that is substantially in the same form as the wording in the current statutes. As redrafted, the bill applied to dependent persons generally while specifying more particularly the actions that the bill prohibited—withholding necessary and adequate food, physical care, and medical attention. The Senate committee considered the bill at its next two hearings. No tape recording of those hearings exists, and the minutes of those hearings do not provide any guidance on the meaning of the redrafted bill. The only explanation of the redrafted bill comes from Senator Carson's discussion of the bill before the full Senate.

“Before the full Senate, Senator Carson began by referring to the testimony presented before the committee about the abuse of the elderly that had taken place in assisted living facilities. Tape Recording, Senate Floor, SB 780, June 29, 1973, Tape 32, Side 1 ...