State v. Burciaga

Under O.R.S. 163.205(1)(a), a parent commits a crime of criminal mistreatment in the first degree if that parent withholds essential attention that is necessary to provide for a child’s basic bodily needs and survival.

Defendant appealed from a conviction of criminal mistreatment on the grounds that the statutory language and its subsequent interpretation in case law implies that merely creating a risk of future harm is insufficient for conviction. The Court disagreed. Defendant was convicted of first-degree criminal mistreatment under O.R.S. 163.205(1)(a) after leaving her children in her boyfriend’s care. During the period of their relationship, the boyfriend was convicted of first-degree criminal mistreatment and third degree assault after abusing Defendant’s child. A year later in early February 2008, after having another child, Defendant again left both children in the care of her boyfriend, and the same child was again abused. In mid-February 2008, Defendant again left her children in her boyfriend’s care, with an even worse result. In early March 2008, Defendant left town again, leaving both children in her boyfriend’s care, and boyfriend proceeded to assault both children, subsequently causing the death of the younger child. After this string of events, Defendant was convicted of three counts of first-degree criminal mistreatment for knowingly leaving her children in an environment where they were exposed to a known threat which could result in serious injury or death, the essence of first-degree criminal mistreatment. Affirmed.