State v. Walker

To determine whether a child was “unattended” in accordance with neglect the court must evaluate the totality of the circumstances, such as, “the age of the child, place where left, whether it was left alone in the company of others, period of time left and, finally, whether the sum of these circumstances are such as would endanger the health or welfare of the child.” Commentary to Criminal Law Revision Proposed Oregon Criminal Code, Final Draft and Report § 174, 176 (July 1997). Additionally, for there to be "reckless endangerment," the child must have been put in "possible or potential harm" and the defendant needs to have “only a conscious disregard of a substantial risk [of that] harm.” State v. Cervantes, 232 OR App 567, 582, 223 P3d 425 (2009) & State v. Harbert, 155 Or App 137, 141, 963 P2d 710, rev den, 327 Or 554 (1998).

Defendant appealed a judgment from the trial court convicting him of second-degree child neglect and recklessly endangering another person (ORS 163.545 & ORS 163.195). Defendant assigned error to the trial court’s denial of Defendant’s motion of acquittal. Defendant argued that the State failed to prove that Defendant left child J "unattended" because evidence that Defendant was in bed with his fiancée while the child was home was insufficient to meet the neglect standard. Additionally, Defendant argued that the State failed to prove that “he was aware of and consciously disregarded a risk that [child] J might find and ingest methamphetamine.” To determine whether a child was “unattended” in accordance with neglect the court must evaluate the totality of the circumstances, such as, “the age of the child, place where left, whether it was left alone in the company of others, period of time left and, finally, whether the sum of these circumstances are such as would endanger the health or welfare of the child.” Commentary to Criminal Law Revision Proposed Oregon Criminal Code, Final Draft and Report § 174, 176 (July 1997). Additionally, for there to be "reckless endangerment," the child must have been put in "possible or potential harm" and the defendant needs to have “only a conscious disregard of a substantial risk [of that] harm.” State v. Cervantes, 232 OR App 567, 582, 223 P3d 425 (2009) & State v. Harbert, 155 Or App 137, 141, 963 P2d 710, rev den, 327 Or 554 (1998). The Court found that Defendant and his fiancée could have attended to Child J’s needs and thus, child J was not unattended. Additionally, the Court found that Defendant knew that a visitor was in his home who could have used methamphetamine and because Defendant did not check around his home, he recklessly endangered Child J.

Judgment of conviction for second-degree child neglect reversed; remanded for resentencing; otherwise affirmed.