State v. Kaylor

Under ORS 163.205(1)(a), criminal mistreatment in the first degree, an offender must affirmatively withhold something from the victim for it to be considered first-degree criminal mistreatment. Secondly, under ORS 162.285(1)(a), tampering with a witness, a defendant must reasonably and specifically believe that the victim will be called to testify at an official proceeding at the time the statements were made.

Defendant appealed her conviction for criminal mistreatment in the first degree, strangulation, and tampering with a witness. Defendant was working at a nursing home as a certified nursing assistant (CNA). The victim was a resident at the nursing home and suffered from dementia. On the date of the incident, Defendant placed her hand over the victim's mouth. Another CNA, Rivera, proceeded to phone Defendant's supervisor to report the incident, in which Defendant made two separate threatening statements to Rivera. Defendant contended the trial court erred in failing to acquit her of both criminal mistreatment and tampering with a witness, and further contended that the trial court erred in admitting evidence of prior bad acts under OEC 404(3). The Court held Defendant never affirmatively withheld physical services from the victim; therefore the trial court erred in failing to acquit Defendant. Secondly, Defendant contended that the trial court erred in failing to acquit her of tampering with a witness. The Court held that under ORS 162.285(1)(a) the state produced insufficient evidence to show that the two statements made by the Defendant were attempts to induce Rivera from testifying in court. Finally, the Court found that the evidence of prior bad acts was inadmissible under OEC 404(3) and the evidence harmed the Defendant. Convictions for first-degree criminal mistreatment and tampering with a witness reversed; conviction for strangulation reversed and remanded.