State v. Voytko

No. 945             December 26, 2024                 131

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               ROANNA MORIAH VOYTKO,
                   Defendant-Appellant.
              Clackamas County Circuit Court
                   22CR32542; A181654

  Katherine E. Weber, Judge.
  Argued and submitted November 19, 2024.
   Carla E. Edmondson, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Oregon
Public Defense Commission.
   Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  TOOKEY, P. J.
  Affirmed.
132                                                          State v. Voytko

             TOOKEY, P. J.
         In this criminal appeal, defendant challenges
her convictions for three counts of recklessly endangering
another person, ORS 163.195,1 after an incident in which
defendant drove her vehicle while intoxicated with her three
children as passengers. Defendant raises three assignments
of error, contending in a combined argument that the trial
court erred in denying her motion for judgments of acquittal,2 because there was insufficient evidence in the record to
support her convictions. Viewing the evidence in the record
in the light most favorable to the state, we conclude that the
evidence was sufficient to support the trial court’s determination, as the trier of fact, that defendant’s conduct created
a substantial risk of serious physical injury to her three
children. See, e.g., State v. Harris, 

, 

 (2021) (articulating our standard of review for a
denial of a motion for judgment of acquittal). We affirm.
         The state charged defendant with three counts of
recklessly endangering another person after defendant,
who was intoxicated, drove a vehicle in which her three children were passengers. Defendant was convicted of all three
counts after a bench trial. She appeals the resulting judgment, arguing that the evidence in the record is insufficient
to support the court’s conclusion that defendant’s conduct
created a substantial risk of serious physical injury to the
children, because defendant drove slowly, she only drove a
short distance, and she never left a private driveway. The
state responds that defendant’s level of impairment and her
intent to drive on public roads support a conclusion that
there was a substantial risk to the children.
        To be guilty of reckless endangerment, a person
must “engage[ ] in conduct which creates a substantial risk
    1
        ORS 163.195(1) provides that:
    “A person commits the crime of recklessly endangering another person if the
    person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”
    2
      In closing argument, defendant challenged the sufficiency of the evidence
to support her convictions for reckless endangerment. In a bench trial, that is
the functional equivalent of a motion for judgment of acquittal, and we treat it as
such on appeal. State v. Gonzales, 

, 

 (2003). Thus,
defendant’s arguments are preserved.
Nonprecedential Memo Op: 

 (2024)            133

of serious physical injury to another person.” ORS 163.195(1).
Physical injury is “serious” when it “creates a substantial
risk of death” or “causes serious and protracted disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ.” ORS
161.015(8). The risk of serious physical injury must be “substantial” or “likely,” but the conduct that the statute prohibits “is not limited to conduct that actually exposes another
person to harm.” State v. Mojarro-Sandoval, 

, 

, rev den, 

 (2006) (explaining that a driver’s level of impairment, without evidence of
erratic driving, can support an inference that passengers
in the vehicle were at substantial risk of serious physical
injury) (internal quotation marks omitted).
         Here, we conclude that the evidence in the record,
viewed in the light most favorable to the state, sufficiently
supports the trial court’s conclusion that defendant’s conduct created a substantial risk of serious physical injury to
her three children. The evidence indicates that defendant
had been drinking earlier in the evening. And although
defendant drove slowly, the vehicle veered off the driveway
toward the fence and trees. Finally, defendant intended to
drive the vehicle onto the public road; she acknowledged
but disregarded the risk of a serious accident; and she only
stopped driving when the vehicle struck a flowerpot and one
of her children took the keys.
       Those circumstances support an inference that
defendant created the requisite level of risk to her children
when she drove the vehicle in which they were passengers.
Thus, we conclude that the trial court did not err in denying
defendant’s motion for judgment of acquittal.
        Affirmed.