State v. Harris

A conviction of reckless endangerment of another person requires: (1) the defendant to have carried out an act; (2) the defendant’s actions created a “substantial risk of serious physical injury to another person;” (3) the defendant’s actions were a gross deviation from a sensible standard of care; (4) the defendant was aware of the risk; and (5) the defendant’s actions were a conscious disregard of the risk. State v. Nelson, 224 Or App 398, 402-03, 198 P3d 439 (2008).

Defendant was convicted of recklessly endangering another person while biking slowly down a sidewalk holding his young daughter on his hip. Defendant argued that to obtain a conviction under ORS 163.195(1), there needed to be more than a mere risk of harm, rather, there must have been an “unjustifiable risk of serious physical injury.” The State argued that evidence was sufficient because Defendant had weapons in his pocket and his daughter was not wearing a helmet. A conviction of reckless endangerment of another person requires: (1) the defendant to have carried out an act; (2) the defendant’s actions created a “substantial risk of serious physical injury to another person;” (3) the defendant’s actions were a gross deviation from a sensible standard of care; (4) the defendant was aware of the risk; and (5) the defendant’s actions were a conscious disregard of the risk. State v. Nelson, 224 Or  App  398,  402-03,  198  P3d  439  (2008).The Court held that because Defendant’s decision not to put a helmet on his daughter while riding the bike was just a $25 traffic violation, that action could not rise to the level of a substantial risk of serious injury. Further, the Court held that the risk of Defendant’s gun discharging was too attenuated to sustain the conviction. Although all of Defendant’s actions made it possible that his daughter could have been injured, the evidence must support a more direct and substantial risk of serious injury. Conviction on Count 3 reversed; remanded for resentencing; otherwise affirmed.