No. 802 September 10, 2025 321
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRANDON JAMES STEVENS,
Defendant-Appellant.
Washington County Circuit Court
22CR02260; A180572
Andrew Erwin, Judge.
Submitted October 15, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Aoyagi, Judge, and
Hellman, Judge.*
ORTEGA, P. J.
Conviction for criminal mistreatment reversed; remanded
for resentencing; otherwise affirmed.
______________
* Aoyagi, J., vice Mooney, S. J.
322 State v. Stevens
ORTEGA, P. J.
Defendant appeals a judgment convicting him of
first-degree assault, third-degree assault, and first-degree
criminal mistreatment, ORS 163.205(1)(a). The assault
charges were based on injuries defendant inflicted on T, the
18-month-old child of the woman defendant was living with.
T’s mother noticed that T was injured after defendant had
been caring for him. She and defendant took T to the hospital where he was diagnosed with and treated for serious
internal injuries, including a lacerated liver, a severed pancreas, and a fractured rib, as well as an injury to his scrotum. A urinalysis obtained during that hospital encounter
revealed that T had methamphetamine in his system. That
gave rise to the first-degree criminal mistreatment charge
against defendant.
On appeal, defendant challenges only the conviction for criminal mistreatment, arguing that the trial court
erred by denying his motion for judgment of acquittal on
that count. Specifically, defendant contends that evidence of
T’s positive methamphetamine test, along with defendant’s
admission that he had used methamphetamine several
times in the week leading up to T’s hospitalization while he
was caring for T, is not sufficient to permit a finding that
defendant deprived T of conditions necessary and adequate
for T’s health and safety—that is, that he withheld physical
care from T rather than created an environmental risk to
him. We agree, and reverse defendant’s criminal mistreatment conviction.
We review the denial of a motion for judgment of
acquittal for legal error, viewing the evidence, as well as
reasonable inferences and credibility choices, in the light
most favorable to the state to determine whether a rational
factfinder could have found the essential elements of the
crime beyond a reasonable doubt. State v. Cunningham, 320
Or 47, 63,
880 P2d 431 (1994), cert den,
514 US 1005 (1995).
ORS 163.205, as relevant to the way it was charged in the
indictment, provides:
“(1) A person commits the crime of criminal mistreatment in the first degree if:
Cite as 343 Or App 321 (2025) 323
“(a) The person, in violation of a legal duty to provide
care for another person, or having assumed the permanent
or temporary care, custody or responsibility for the supervision of another person, intentionally or knowingly withholds necessary and adequate food, physical care or medical
attention from that other person[.]”
(Emphases added.)
The evidence at trial was largely undisputed. Defendant provided daily childcare for T during the week before T
was hospitalized, while T’s mother was at work. Defendant
smoked methamphetamine several times while he was caring for T during that week. T tested positive for methamphetamine while being evaluated at the hospital for injuries caused by blunt force trauma. Dr. Danny Leonhardt, a
pediatrician specializing in child abuse cases, testified that
the level of methamphetamine in T’s system was consistent
with environmental exposure to methamphetamine smoke
and that any amount of methamphetamine in a child’s system is “not good” and can “affect a child’s health.”
Defendant moved for a judgment of acquittal on
the criminal mistreatment charge after the close of the evidence. He argued that the state’s theory of that offense, that
defendant withheld necessary care from T by exposing him
to methamphetamine, was not a cognizable theory under
the statute, and that exposing T to methamphetamine did
not constitute withholding care. The court denied the motion
and convicted defendant on all three charges.
On appeal, defendant renews his argument that
ORS 163.205(1)(a) does not encompass defendant’s conduct
because it presented only a future risk of harm. He bases his
argument on State v. Baker-Krofft, in which the Supreme
Court analyzed what it means to withhold necessary and
adequate physical care under that statute and explained
that “a defendant withholds physical care from a dependent
person when the defendant keeps back from the dependent
person those physical services and attention that are necessary to provide for the dependent person’s bodily needs.”
348 Or 655, 661-62,
239 P3d 226 (2010). The court held that
the statute “prohibits a present deprivation of services or
attention” but that it does not encompass “creating a risk of
324 State v. Stevens
future harm.”
Id. at 663. We agree with defendant that the
facts in this case involve creating a risk of future harm outside the scope of liability under the criminal mistreatment
statute.
Baker-Krofft involved two consolidated cases. In
both cases, criminal mistreatment charges were based on
homes that were dirty, cluttered, and potentially hazardous.
In Baker-Krofft, the defendant’s house “posed specific fire
hazards (such as a space heater sitting on a pile of straw
in a chicken coop in the backyard), did not contain working
fire alarms, and was so full of clutter that it would have
been difficult to escape from any fire.” Id. at 658. In State v.
McCants/Walker,
231 Or App 570, 573,
220 P3d 436 (2009),
rev’d sub nom State v. Baker-Krofft,
348 Or 655,
239 P3d 226
(2010), the defendants’ house was “filled with debris, which
included some small items on the floor that posed a potential choking hazard to the young children who lived in the
home.” Baker-Krofft,
348 Or at 658.
In rejecting the conclusion that such conditions
created criminal liability for criminal mistreatment, the
Supreme Court concluded that there was “no evidence from
which a reasonable trier of fact could infer that the defendant[s] … had withheld from [their children] some physical
service necessary to provide for the child[ren]’s bodily needs,
nor was there any evidence that [the] defendant[s] failed to
protect [their children] from an immediate harm.” Id. at 667.
The court also noted that nowhere did the legislative history
mention creating or failing to correct environmental dangers.
Id. at 662-63. Instead, the statute focuses on a person’s
withholding of services necessary to maintain a dependent
person’s bodily health.
Id. at 667 n 5. As we have explained,
the state may not phrase affirmative physical mistreatment
in the negative to circumvent that limitation. See State v.
Kaylor,
252 Or App 688, 694-95,
289 P3d 290 (2012), rev den,
353 Or 428 (2013) (holding that suffocating a dependent, or
refusing to stop suffocating them, is not “withholding” physical care).
In arguing that the record here is sufficient to support a criminal mistreatment conviction, the state invokes
our opinion in State v. Burciaga, 263 Or App 440, 328 P3d
Cite as
343 Or App 321 (2025) 325
782 (2014), where we affirmed a criminal mistreatment conviction that was based on the defendant leaving her children
with a person who had previously been convicted of abusing
one of them. We held that the state had
“presented legally sufficient evidence that [the] defendant
withheld necessary and adequate physical care from her
children. Specifically, the state presented evidence that
[the] defendant withheld essential attention from them—
attention that she had a legal duty to provide and that,
under the circumstances, was necessary to provide for
their basic bodily needs, indeed, for their survival.”
Id. at 449. The mother in that case withheld her “attention”
by leaving the children with an extremely dangerous person who presented an extreme and immediate risk that had
already materialized. The record here that any amount of
exposure to methamphetamine is “not good” and can “affect
a child’s health” represents a more speculative future risk
than the immediate risk at issue in Burciaga.
Here, the state’s evidence was insufficient to show
that defendant deprived T of necessary and adequate physical care through exposure to methamphetamine. The state
did not present evidence that T’s exposure to methamphetamine placed him at imminent risk of serious physical injury
or pain, long-term harm, or death. As in Baker-Krofft and
McCants/Walker, where exposure to fire and choking hazards was insufficient, defendant’s failure to correct environmental hazards in the home—though certainly serious and
likely actionable in other ways—is insufficient to demonstrate that defendant withheld physical care that comes
within the meaning of ORS 163.205. At most, the state’s
evidence showed that T was exposed to the risk of nonspecific future harm from environmental hazards—exactly the
sort of harm held to be insufficient in Baker-Krofft and its
progeny. Therefore, the trial court erred in rejecting defendant’s motion for judgment of acquittal as to the criminal
mistreatment charge.
Conviction for criminal mistreatment reversed;
remanded for resentencing; otherwise affirmed.
