Theodore E. Sims, Judge.
Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed and remanded.
168 State v. Prose
PER CURIAM
Defendant appeals from a judgment of conviction
for first-degree criminal mistreatment, ORS 163.205, for
withholding necessary and adequate care for her threemonth-old son, L. The state’s case was based on evidence
that defendant and her codefendant, Eisenbeisz (L’s father),
had gone on a methamphetamine binge while L was in their
apartment. The binge ended when Eisenbeisz overdosed and
required hospitalization, which prompted a Department of
Human Services investigation that revealed methamphetamine in L’s system.
In her first assignment of error, defendant argues
that the state’s evidence was legally insufficient to establish
the type of risk to L that is required under ORS 163.205.
Having considered the record in light of our cases construing that statute, including State v. Burciaga,
(2014), we reject that assignment of error without additional discussion. In her remaining assignments, defendant contends that the trial court
erred by admitting a pediatrician’s testimony about the
results of L’s urine test. The state concedes that, although
the pediatrician was entitled to rely on the results to form
her opinion, her testimony should not have been admitted
as substantive evidence of the test results over defendant’s
hearsay objection. The state further concedes that the evidential error was prejudicial and requires us to reverse and
remand defendant’s conviction. We agree with and accept
the state’s concession. See State v. Knepper,
