State v. Hickey

Under ORS 163.205(1)(a) a person withholds necessary and adequate physical care when they withhold care that is absolutely required to meet a dependent’s basic safety and survival needs.

Defendant appeals judgment of conviction for one count of first-degree criminal mistreatment, ORS 163.205(1)(a). Under ORS 163.205(1)(a) a person withholds necessary and adequate physical care when they withhold care that is absolutely required to meet a dependent’s basic safety and survival needs. The State was required to show that the care withheld was for a condition that causes serious physical pain or injury and the evidence of the condition needed to include the nature of the pain or injury and the intensity, duration, and consequences of the pain or injury. The State could satisfy the evidence requirement by putting on evidence that Defendant withheld care for an existing condition that caused or was likely to cause serious physical pain or injury. Also the State could satisfy the evidence requirement by presenting evidence that Defendant engaged in conduct in which he failed to maintain the hygiene necessary to protect the dependent from risk of infection, illness, or future bodily harm. In this case, the State failed provide sufficient evidence from which a jury could find that the pain or injury was sufficiently severe based on the intensity, duration, or consequences. Reversed and remanded for resentencing.