State v. Schneider

• Decision Date: 24 June 2009
• Docket Number: A130729.,03FE0555AB.
• Citation: 211 P.3d 306,229 Or. App. 199
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Maria SCHNEIDER, Defendant-Appellant.
• Court: Oregon Court of Appeals

211 P.3d 306

229 Or. App. 199

STATE of Oregon, Plaintiff-Respondent, v. Maria SCHNEIDER, Defendant-Appellant.

03FE0555AB.

A130729.

Court of Appeals of Oregon.

Argued and Submitted on February 26, 2009, Portland Community College, Portland.

Decided June 24, 2009.

Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Inge D. Wells, Senior 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 ARMSTRONG, Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

Defendant appeals from a judgment of conviction for one count of criminal mistreatment in the second degree, ORS 163.200(1)(a), assigning error to the trial court's denial of her motion for a judgment of acquittal (MJOA). Defendant asserts that the state failed to present legally sufficient evidence that she "with[held] necessary and adequate * * * physical care or medical attention" from the victim. Id. As explained below, we conclude that defendant's conduct in moving the victim to the home of her friend without the victim's prescription medications constituted "withhold[ing] necessary and adequate * * * medical attention" within the meaning of the criminal mistreatment statute because it precluded the victim from receiving those medications at the prescribed time. Consequently, we affirm.

We review the denial of an MJOA to determine whether, after viewing the facts in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved 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). Although defendant moved for a judgment of acquittal at the close of the state's evidence, we consider the whole record to determine whether there is sufficient corroborative evidence. See State v. Lamphere, 233 Or. 330, 332, 378 P.2d 706 (1963) (when error is assigned to the denial of an MJOA, appellate courts consider the whole record to determine whether there is sufficient evidence to support a conviction). Consistently with that standard of review, the operative facts are as follows.

In May 2000, Willy Lackey contacted his nephews, Ray and Mark Lackey, and requested that they help care for him because he was elderly and could no longer live alone.¹ Willy suffered from congestive heart failure, blood pressure problems, depression, anxiety, and prostate cancer, and was experiencing signs of early dementia. Willy also had chronic edema—retention of fluids and swelling—in his lower extremities. The nephews moved Willy from Montana to Mark's house in Redmond.

In August 2000, Willy was diagnosed with terminal lung cancer, and his physician referred him to hospice for care. In September 2000, Mark hired defendant as Willy's caregiver. Shortly thereafter, defendant moved into Mark's home to provide Willy with 24-hour care.

Defendant was responsible for, among other duties, administering Willy's medications. Willy took two diuretics to remove extra fluids—one in the morning and one twice a day—plus a blood pressure or heart medication once a day. Willy also took two "p.r.n."² (as necessary) medications: an antianxiety medication and morphine. The morphine was prescribed for Willy's "pain from his cancer" and "decrease[d] the work that [Willy's] heart ha[d] to do in congestive heart failure." Willy was on morphine, which could be dispensed up to once every hour, "multiple times a day." Although Willy's mobility was impaired and he could not leave the house independently, he was lucid and able to communicate.

In December 2000, defendant began to have problems and disagreements with Mark regarding Willy's care. Those disagreements culminated in an incident in January 2001 in which Willy became upset and unhappy with Mark and sided with defendant. Sometime thereafter, Willy began expressing a strong desire to return to Montana. Defendant, along with Brookshire, a high school friend of Mark's, made a plan to take Willy back to Montana. Brookshire purchased a motor home for the trip in late January.

Willy's family was not informed of that plan. Although hospice nurses were aware that Willy wanted to go to Montana and had discussed options with Willy, defendant did not involve hospice in her plan. Willy's physician also was not informed of defendant's plan and testified at trial that it would not have been in Willy's best interests to travel to Montana without first checking in with either the physician or hospice.

On the morning of January 31, 2001, defendant moved Willy to the home of a friend, Harvey, where defendant was renting an additional room. Defendant then went to the bank where Willy had a joint checking account with his nephews. Defendant attempted to close out the account, using a power of attorney that defendant had helped Willy execute in her favor. Defendant informed the bank teller that Willy wanted to go to Montana and that she was withdrawing the funds for that purpose. The teller became "a little nervous" and, after speaking to her supervisor, informed defendant that it would take some time before she could give defendant the funds. The teller then called Mark, who notified Ray about the situation, and Ray called the police to report that Willy was possibly being "kidnapped."

Redmond Police Officer Dickson, joined by another officer, Ludwig, went to Harvey's home to investigate the possible kidnapping. Upon their arrival, defendant informed the officers that she was caring for Willy, that Willy was there at the home with her, and that he was fine. Defendant led the officers to a back bedroom, where Willy was sitting on the bed. Willy was smiling and in "good spirits," but, consistently with his chronic edema, his lower extremities were swollen. Ludwig then asked defendant to step out of the bedroom and into the living room, while Dickson stayed with Willy to question him alone. Willy was alert and able to answer Dickson's questions.

At some point during Ludwig's questioning of defendant in the living room, she abruptly turned and, hurriedly, walked into the back bedroom where Dickson was questioning Willy. The officers repeatedly ordered defendant to leave the bedroom, but she refused and became uncooperative. The officers ultimately arrested defendant for resisting arrest and interfering with a police officer.³

After defendant's arrest, the officers contacted Oregon Senior and Disabled Services (SDS). Lockridge, an Adult Protective Services investigator from SDS, arrived to find Willy in good spirits. At some point, Willy informed Lockridge that he needed to have his medications. Lockridge searched the house, the motor home, and defendant's car for Willy's medications, but could not find them. Neither the officers nor Lockridge attempted to ask defendant if Willy's medications were in any of those locations. Willy also informed Dickson that he needed some medications "at that time." Dickson believed that "Willy was apparently overdue on medication and should have had some."

Lockridge then called hospice, and hospice sent a nurse, Schwing, to Harvey's residence to assist in Willy's care. When Schwing arrived, Willy was lying down in the back bedroom and was "clear," "lucid," "knew where he was," and "knew what the plan was." Schwing called pharmacies and obtained refills of all of Willy's medications and arranged transportation for Willy to a nearby care center.

The next day, police seized defendant's car and the motor home pursuant to a warrant and later searched them, but they found no medications. Based on those events, a grand jury charged defendant with, inter alia, criminal mistreatment in the second degree,⁴ ORS 163.200(1)(a) (Count 4). That statute provides, in part:

"A person commits the crime of criminal mistreatment in the second degree if, with criminal negligence and:

"(a) In violation of a legal duty to provide care for another person, the person withholds necessary and adequate * * * physical care or medical attention from that person[.]"

Criminal negligence, in turn, is defined as:

"`Criminal negligence' or `criminally negligent,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

ORS 161.085(10).

As relevant here, the indictment alleged that defendant

"did, with criminal negligence and in violation of a legal duty to provide care for WILLIAM LACKEY, unlawfully withhold necessary physical or medical attention from said WILLIAM LACKEY."

At the close of the state's case, defendant moved for a judgment of acquittal with respect to Count 4.⁵ Defendant did not challenge the sufficiency of the state's proof with respect to the requisite "criminally negligent" mental state. Rather, defendant argued solely that the state had failed to establish that defendant had "with[held] necessary and adequate * * * physical care or medical attention" from Willy. ORS 163.200(1)(a).⁶

The state countered that, based on evidence of the events of January 31, defendant was culpable in either of two ways. First, the state contended that defendant had violated the statute by undertaking to move Willy to Montana without first taking the proper medical steps, including obtaining the advice and involvement of either hospice or his doctor. Second, the state contended that, because none of Willy's prescribed medications could be found inside Harvey's home, the motor...