State v. Montgomery

Under ORS 163.545, whether a child is “unattended” for purposes of child neglect turns on whether there was or was not a responsible person present who can take care of the child’s needs. That determination is made considering the totality of the circumstances, including the child’s age, the location where the child is left, and the period of time the child was left.

Defendant appealed a judgment convicting him of second-degree child neglect, ORS 163.545, resulting from an incident in which he mistakenly left his girlfriend’s seven-year-old son at a restaurant. On appeal, Defendant challenged the trial court’s denial of his motion for a judgment of acquittal. Defendant argued that “the State failed to prove that he left [the child] unattended, that there was insufficient evidence that the circumstances likely endangered [the child’s] health or welfare, and that the state failed to prove that defendant’s mistake in leaving [the child] was a gross deviation from the standard of care.” In response, the State argued that because Defendant did not know there would be people present and able to care for the child in the restaurant, defendant left the child “unattended” for purposes of ORS 163.545. Under ORS 163.545, whether a child is “unattended” for purposes of child neglect turns on whether there was or was not a responsible person present who can take care of the child’s needs. That determination is made considering the totality of the circumstances, including the child’s age, the location where the child is left, and the period of time the child was left. Thus, the Court held that the trial court erred in denying Defendant’s motion for a judgment of acquittal. Reversed.