State v. Cook

Under ORS 163.195(1), to determine whether a defendant was aware that his actions were creating a substantial risk of serious physical injury, and that defendant consciously disregarded that risk, “[r]easonable inferences are permissible; speculation and guesswork are not.” State v. Bivins, 191 Or App 460, 462 (2004).

Defendant appealed the trial court’s denial of Defendant’s motion for judgment of acquittal of his conviction for reckless endangerment, ORS 163.195(1). On appeal, defendant argued that the evidence did not support a finding, beyond a reasonable doubt, “that defendant’s conduct created a substantial risk of serious physical injury to another and that the defendant was aware of and consciously disregarded that risk.” The state contended that “the circumstances—including defendant’s extreme agitation and outright refusals to return the child—were such that a fact finder could reasonably infer that defendant had created a substantial risk of serious injury” to the child and that defendant was aware of, and consciously disregarded, that risk. Under ORS 163.195(1), to determine whether a defendant was aware that his actions were creating a substantial risk of serious physical injury, and that defendant consciously disregarded that risk, “[r]easonable inferences are permissible; speculation and guesswork are not.” State v. Bivins, 191 Or App 460, 462 (2004). The Court of Appeals held that nothing in the record suggested that defendant took any actions of a sort that he would have recognized created a substantial risk of prompting a significant physical—and injurious—response by the officers. Therefore, the trial court erred when it denied Defendant’s motion for judgment of acquittal. Reversed.