State v. Lewis, A173465

CourtCourt of Appeals of Oregon
Writing for the CourtMOONEY, P. J.
Citation322 Or.App. 828
PartiesSTATE OF OREGON, Plaintiff-Respondent, v. MICHAEL RICHARD LEWIS, Defendant-Appellant.
Docket NumberA173465
Decision Date30 November 2022

322 Or.App. 828

STATE OF OREGON, Plaintiff-Respondent,
v.

MICHAEL RICHARD LEWIS, Defendant-Appellant.

A173465

Court of Appeals of Oregon

November 30, 2022


Argued and submitted March 23, 2022

Crook County Circuit Court 18CR55360; Matthew B. Shirtcliff, Judge. (Judgment dated February 7, 2020) Michael R. McLane, Judge. (Supplemental Judgment dated August 24, 2020)

Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

Nicholas C. Greenfeld, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and Kistler, Senior Judge.

[322 Or.App. 829]

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[322 Or.App. 830] MOONEY, P. J.

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Defendant was convicted of recklessly endangering another person, ORS 163.195 (Count 2),[1] after his three-year-old son, R, was found to have methamphetamine in his system.[2] Defendant appeals from the judgment of conviction and a supplemental judgment, assigning error to (1) the trial court's denial of his motion for judgment of acquittal (MJOA) and "finding defendant guilty of Count 2," and (2) the court's imposition of $9,180.20 in restitution for medical expenses. We conclude that the trial court erred in denying defendant's MJOA and in finding him guilty of recklessly endangering another person, and therefore reverse. Accordingly, we also reverse the supplemental judgment, which awarded restitution based on defendant's conviction. Given our disposition of the first assignment of error, it is not necessary for us to address the second assignment of error directed to the restitution award.

"We review the denial of an MJOA for whether a rational factfinder could find, after viewing the evidence in the light most favorable to the state and making reasonable inferences and credibility choices, that the state proved every element of the offense beyond a reasonable doubt." State v. Davis, 261 Or.App. 38, 39, 323 P.3d 276 (2014). Reasonable inferences are permissible; mere speculation is not. State v. Bivins, 191 Or.App. 460, 467, 83 P.3d 379 (2004). Thus, the initial question whether particular circumstantial evidence is legally sufficient to support a particular inference is a legal question for the court to decide. Id. We state the facts in accordance with the standard of review.

Defendant and R's mother, Morse, had an informal custody arrangement with respect to R and they alternated parenting time with him by mutual agreement. Defendant's housing situation was in flux. He occasionally stayed with

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[322 Or.App. 831] his former girlfriend, Smith, just "down the street" from Morse, at his mother's place, or in his truck. During the mid- to late morning hours of August 15, defendant "wanted time with [R], so he came and got [R]" from Morse's house. According to Morse, defendant seemed "grouchy" and "agitated" when he picked R up that morning. After watching defendant "walk down to [Smith's apartment] from [Morse's] house with the car seat and [R]," Morse called Smith to see if she would "help [defendant] with [R]." Smith said that she would do so. Morse later acknowledged that defendant might have looked like he had been using methamphetamine.

Over the course of that day, Smith took R and her children to the river to swim for a while and later to a bar-beque at a friend's house. Defendant joined Smith and the children at the river and, according to Smith, was acting fine, "just hanging out." Defendant later told police and the Department of Human Services (DHS) investigators that he sat in his truck rather than go swimming, explaining that it "had been a weird day for him." When they left the river, defendant and R drove separately in defendant's truck. Defendant described that 30 to 45 minute ride:

"I had the boy, we went swimming, then me and the boy went for a drive. I was trying to get him to like take a nap, I think. And he was strapped in the seat the whole time. There is no way he could have gotten around the truck. And then he wouldn't go to sleep, so I went ahead and drove back to [Smith's apartment]."

Defendant then left R with Smith, who took R with her to a barbeque that lasted between two and three hours. Defendant later dropped by Morse's house and they had an argument. Smith returned R to Morse's care after the barbeque, arriving just as defendant was leaving, apparently upset with Morse following their argument. Within five or 10 minutes of R being returned to Morse's care, Morse noticed that R was "jerky and twitchy and he couldn't like stop moving and twitching, and it was-it was bad." She took R to the hospital where a drug screen revealed that he had methamphetamine in his system.

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[322 Or.App. 832] Defendant does not dispute that he used methamphetamine on August 15. Defendant also does not seriously dispute that there was methamphetamine in his truck that day. He stated that he usually kept methamphetamine "in this little lockbox" in his truck, but that there was "no way [R] could have got around in the truck. So if there was anything in the truck, there's no way he could have got to it. It's not like I let him roam around in there." Defendant asserted that the reason no lockbox was found was that he threw it out the window of his truck after his argument with Morse, described above.

No one was able to find or contact defendant for two days after he left Morse's house. He ultimately responded to a text message from a DHS caseworker on August 17 and agreed to meet for an interview with police and DHS. The interview ended in his arrest for charges that led to the conviction at issue. He told the investigators that he had gone camping because he was angry at Morse because of a dispute over money and "he was *** sick of everybody." Defendant acknowledged having received text messages about R's medical condition while he was camping, but he said that he did not believe them at first and that he was having difficulties with a broken phone. Morse recalled that in a conversation she later had with defendant, he offered the possibility that R's exposure to methamphetamine "could have happened" while R was with Smith or that "it could have happened in the back of [defendant's] truck."

In support of his MJOA, defendant argued that there was "no nexus between what it is that he is alleged to have done and the child consuming methamphetamine." He argued further that the evidence was not sufficient to support the state's contention that R was exposed to methamphetamine while under defendant's care. Defendant argued that the state had not "presented any evidence to support any act that [defendant] actually committed that created a risk of serious physical injury to [R]." The state, for its part, responded to the MJOA by focusing on the period of time that R was in the truck with Defendant as they left the river until defendant dropped the child off with Smith. Specifically, the state argued:

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[322 Or.App. 833] "I guess I will briefly mention Counsel's argument with regards to Count 2, the Reckless Endangering. Again, we don't have a case where we're saying it's just neglect and maybe there's a-there is a sort of a theoretical danger. We know what [R] experienced. We know what happened in this case, he was exposed to these drugs. He was with this Defendant."

The trial court denied the motion, explaining that evidence of defendant's "meth use" on August 15th was itself "sufficient evidence to go forward on the Reckless Endangerment charge." Defendant rested, and after closing arguments, the trial court found him guilty of recklessly endangering another person.

There are countless ways in which a person might recklessly endanger another person. State v. Harris, 311 Or.App. 27, 32, 487 P.3d 421 (2021). But, to support a conviction for the crime of...

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