S057958, Opinion — State v. Baker-Krofft

655
Argued and submitted May 19, at Ashland High School, Ashland, Oregon; in
State v. Baker-Krofft, S057958, decision of Court of Appeals and judgment of
circuit court reversed; in State v. McCants /Walker, 8058148, decision of
Court of Appeals and judgment of circuit court reversed August 19, 2010
STATE OF OREGON,
Respondent on Review,
v.
NANCY BAKER-KROFFT,
Petitioner on Review.
(CC 06C53978; CAA135939; SC S057958 (Control))
STATE OF OREGON,
Respondent on Review,
v.
TIMOTHY LEE McCANTS,
Petitioner on Review.
(CC 06C44334; CAA134846 (Control))
STATE OF OREGON,
Respondent on Review,
v.
CYNTHIA GENEVA WALKER,
Petitioner on Review.
(CC 06C45185; CAA134848; SC S058148)
239P3d226

656 	State v. Baker-Krofft
CJS, Infants § 5.
En Banc
On review from the Court of Appeals.*
Erica Herb, Deputy Public Defender, Salem, argued the
cause and filed the brief for petitioner on review Baker-
Krofft. With her on the brief was Peter Gartlan, Chief
Defender, Office of Public Defense Services.
Ryan 	T. 	O'Connor, 	Deputy 	Public 	Defender, 	Salem,
argued the cause and filed the brieffor petitioners on review
McCants and Walker. With him on the brief was Peter
Gartlan, Chief Defender, Office of Public Defense Services.
Inge D. Wells, Senior Assistant Attorney General, Salem,
argued the cause and filed the briefs for respondent on review
* Appeal from Marion County Circuit Court, Thomas M. Hart, Judge. State v.
Baker-Krofft, 230 Or App 517, 216 P3d 335 (2009).
Appeal from Marion County Circuit Court, Albin W. Norblad, III, Judge.
State v. McCants/Walker, 231 Or App 570, 220 P3d 436 (2009).

Cite as 348 Or 655 (2010) 	657
State of Oregon. With her on the briefs were John R. Kroger,
Attorney General, and Jerome Lidz, Solicitor General.
KISTLER,J.
In State v. Baker-Krofft, 8057958, the decision of the
Court of Appeals and the judgment of the circuit court are
reversed.
In State v. McCants/Walker, S058148, the decision of the
Court of Appeals and the judgment of the circuit court are
reversed.

State v. Baker-Krofft
KISTLER,J.
The question in these two cases is what constitutes
"withhold[ingJ necessary and adequate * * * physical care"
within the meaning of ORS 163.205 and ORS 163.200, two
statutes that prohibit first- and second-degree criminal mis-
treatment. In both cases, defendants had children under
their care who were well fed and healthy but who lived in
homes with potential safety hazards. Following its prece-
dent, the Court of Appeals held that creating or failing to cor-
rect potential safety hazards in the home constitutes "with-
hold[ing] * * * physical care" within the meaning of ORS
163.200 and ORS 163.205. State u. Baker-Krofft, 230 Or App
517, 523-24, 216 P3d 335 (2009); State u. McCants /Walker,
231 Or App 570, 584, 220 P3d 436 (2009). We allowed defen-
dants' petitions for review and now reverse the Court of
Appeals decisions.
We summarize the facts briefly to put the legal issue
in context. 1 In both cases, defendants were arrested and
indicted for "withhold[ing] necessary and adequate physical
care" from their dependent children. In both cases, defen-
dants' children, who ranged in age from five and one-half
months to 11 years old, appeared healthy and well fed.
Defendants were arrested "based solely on the condition
of the home." Baker-Krofft, 230 Or App at 520; accord
McCants/Walker, 231 Or App at 572. The conditions in both
homes were similar. Both homes were unusually full of clut-
ter in a way that posed potential safety hazards. In Baker-
Krofft, the house posed specific fire hazards (such as a space
heater sitting on a pile of straw in a chicken coop in the back-
yard), did not contain working fire alarms, and was so full of
clutter that it would have been difficult to escape from any
fire. 230 Or App at 520, 524. In McCants/Walker, the home
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. 231 Or App at 573.
1 Because these cases arise from defendants' motions for judgments of acquit-
tal, we state the facts in the light most favorable to the state. State v. Casey, 346 Or
54, 56, 203 P3d 202 (2009). The facts are set out more fully in the Court of Appeals
decisions.

Cite as 348 Or 655 	659
In each case, defendants moved for a judgment of
acquittal at the close of the evidence, the trial court denied
the motion, and the trier of fact found that defendants had
"with[eld] necessary and adequate physical care" from their
children. 2 Defendants appealed from the resulting judgments
of conviction, and the Court of Appeals affirmed. In both
cases, the Court of Appeals relied on its precedent for the
proposition that "physical care" under ORS 163.200 and ORS
163.205 "'necessarily includes attention to dangers in the
body's environment.'" Baker-Krofft, 230 Or App at 523 (quot-
ing State v. Damofie I Quintana, 89 Or App 620, 624, 750 P2d
518 (1988)); accord McCants /Walker, 231 Or App at 580. In
Baker-Krofft, the Court of Appeals held that the "present risk
of fire in the home"-the piles of flammable material that
presented a heavy fuel load and the space heater placed on
top of straw in a chicken coop in the backyard as well as the
lack of smoke alarms-was "sufficient for the jury to find that
defendant failed to give sufficient attention to her son's
bodily safety and well-being." 230 Or App at 523-24. In
McCants /Walker, the court noted the growing number of
cases involving ORS 163.200 and ORS 163.205 and set out
several factors to be used in "the assessment of the legal suf-
ficiency of asserted 'dangers in the body's environment.'" 231
Or App at 581-83. After considering those factors, the court
held that "[t]he trier of fact could reasonably infer that there
were multiple choking hazards easily accessible to children
for an extended period of time and that defendants, notwith-
standing their awareness of the attendant risk, had done lit-
tle, if anything, to rectify that condition." Id. at 584.
We allowed defendants' petitions for review to con-
sider whether creating or failing to correct a safety hazard
constitutes "withhold[ing] 	necessary and 	adequate 	* * *
physical care" within the meaning of ORS 163.200 and ORS
163.205. We begin with the wording of those statutes. ORS
163.200(1) provides, in part:
"A person commits the crime of criminal mistreatment
in the second degree if, with criminal negligence and:
2 In Baker-Krofft, defendant was convicted of violating ORS 163.200. In
McCants/Walker, defendants were convicted of violating ORS 163.205.

660 	State v. Baker-Krofft
"(a) 	In violation of a legal duty to provide care for
another person, the person withholds necessary and ade-
quate food, physical care or medical attention from that
person * * *."
ORS 163.205(1) provides, in part:
"A person commits the crime of criminal mistreatment
in the first degree if:
"(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 super-
vision of another person, intentionally or knowingly with-
holds necessary and adequate food, physical care or medical
attention from that other person***."
The state must prove three elements to establish a violation
of those statutes: (1) the defendant acted with the requisite
mental state; (2) the defendant had a duty to provide care for
a person; and (3) the defendant "withh[eld] necessary and
adequate food, physical care or medical attention" from that
person. 3
The issue that these cases pose is narrow. Defen-
dants do not argue that there was insufficient evidence to
find that they either owed a duty to provide care for their chil-
dren or that they lacked the requisite mental state. Nor were
defendants charged with withholding food or medical atten-
tion. Rather, defendants were charged with withholding
"necessary and adequate physical care" from their children
and can be convicted only of that charge. See State v. Schoen,
348 Or 207, 213 n 2, 228 P3d 1207 (2010) (noting that a defen-
dant who is charged with "tamper[ing]" with property cannot
be found guilty of "interfering" with property, when those
words provided alternative definitions of the same criminal
act). The question in these cases accordingly reduces to
" The criminal mistreatment statutes differ in two respects, neither of which
bears on the issue on review. The second-degree criminal mistreatment statute
requires proof of criminal negligence and applies only to persons who have a legal
duty to provide care for another. ORS 163.200(1). The first-degree statute, by con-
trast, requires proof that the defendant acted knowingly or intentionally, and it
applies not only to persons who have a legal duty to provide care for another but
also to persons who "hav[e] assumed the permanent or temporary care, custody or
responsibility for the supervision of another person." ORS 163.205(1)(a).

Cite as 348 Or 655 (2010) 	661
whether creating or failing to correct potential fire and chok-
ing hazards constitutes "withhold[ing] necessary and ade-
quate*** physical care" within the meaning of ORS 163.200
and ORS 163.205.
On that point, defendants argue that "necessary and
adequate 	* * * physical care" 	means 	"attention that is
applied to the body and is sufficient to satisfy the dependent's
essential bodily needs." Defendants reason that the prohibi-
tion against withholding "physical care" does not include a
prohibition against creating or failing to correct "potential
dangers in the dependent's environment." The state, on the
other 	hand, 	interprets 	the 	statutory 	prohibition 	more
broadly. It contends that "[t]he plain meaning of'withholding
necessary and adequate physical care' is to fail to meet the
essential needs of a dependent person ***with respect to
bodily safety and well-being." The state reasons that poten-
tial environmental dangers are covered by the statutes
because "[k]eeping a child safe necessarily includes protect-
ing him from dangers in his environment."
In analyzing the parties' arguments, we begin with
the statutory text. The operative text of both statutes makes
it a crime to "withhol[d] necessary and adequate * * * physi-
cal care." Because the legislature has not defined those
terms, we look to the dictionary to determine their ordinary
meaning. See State v. Briney, 345 Or 505, 511, 200 P3d 550
(2008). We begin with the phrase "physical care." In this con-
text, to provide "care" means to "provide for or attend to
needs or perform necessary personal services (as for a patient
or a child)." Webster's Third New Int'l Dictionary 338 (una-
bridged ed 2002). 4 The word "physical" modifies "care."
"Physical" means "of, or relating to the body." Id. at 1706.
Reading those two definitions together, we conclude that
4 Care is both a noun and a verb. See Webster's at 338 (defining both forms of
the word). Care, used as a noun, means "CHARGF:, SUPERVISION, MANAGEMENT:
responsibility for or attention to safety and well being <under a doctor's·•." Id. Care,
used as verb, means "to give care" or to "provide for or attend to needs or perform
necessary personal services (as for a patient or a child)." Id. The former definition
focuses on the relationship between the caregiver and the recipient, while the lat-
ter focuses on the nature of the care that is given or, in these statutes, withheld.
Because the latter definition comes closer to the way in which the legislature used
the word, we quote that definition in text.

State v. Baker-Krofft
providing "physical care" means providing for or attending to
another person's bodily needs.
Another statutory term is relevant. ORS 163.200
and ORS 163.205 impose liability only when a person with a
duty to provide care "withholds" necessary and adequate
physical care "from th[e] person" to whom the duty is owed.
''Withhold" means:
"to desist or refrain from granting, giving, or allowing
: keep in one's possession or control : keep back <distribute
among the youngsters all blankets and provisions and
gear, - ing for myself only a canteen-Rodding Carter>
,_permission>."
Webster's at 2627. As the text of the statutes makes clear, the
statutes apply only if the person with the duty to provide care
withholds or keeps back food, physical care, or medical atten-
tion "from th[e dependent] person"; that is, the statutes rest
on the premise that the actor keeps back something (food,
physical care, or medical attention) from a person who would
not otherwise be able to obtain it for him or herself.
Reading those definitions together, we conclude 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. As noted,
the state argues that the statutes reach a broader range of
conduct. It notes that one definition of "care" is "responsibility
for or attention to safety and well being <under a doctor's->."
Webster's at 338. Focusing on the use of the word "safety" in
that definition, the state reasons that "[k]eeping a child safe
necessarily includes protecting him from dangers in his envi-
ronment." It follows, the state concludes, that creating or fail-
ing to correct any and all dangers to the child's safety comes
within the prohibition against withholding necessary and
adequate physical care.
The state's interpretation is difficult to square with
the statutes' texts in three respects. First, it converts the verb
"withhold" into "create" or "fail to correct." Second, it converts
a prohibition against withholding specific services (food,
physical care, and medical attention) into a prohibition

Cite as 348 Or 655 (2010) 	663
against creating any and all risks to a dependent person's
health. Third, it converts a statute that prohibits a present
deprivation of services or attention into one that prohibits
creating a risk of future harm. To be sure, presently with-
holding necessary and adequate physical care can impair a
child's health and safety. But it does not follow that every
risk of future harm to a child's health or safety that a parent
either creates or fails to correct constitutes withholding phys-
ical care. The former set of risks is far broader than the latter,
but the statutory prohibition extends only to the latter set (or
subset) of risks.
Two contextual clues reinforce that conclusion. ORS
163.200 and ORS 163.205 prohibit withholding necessary
and adequate "food" and "medical attention," as well as phys-
ical care. Both food and medical attention are essential to
maintain bodily health. Grouping physical care together with
food and medical attention suggests that the legislature
understood that physical care was similarly limited to those
essential physical services and attention that are necessary
to provide for a dependent person's bodily needs. Cf. White u.
State Ind. Acc. Com., 227 Or 306, 317, 362 P2d 302 (1961)
(under the doctrine of noscitur a sociis, "general words, found
in a statute, may take the color and meaning of words of spe-
cific connotation").
Additionally, when the legislature enacted ORS
163.200 and ORS 163.205 in 1973, it did so against a back-
drop of civil statutes that authorized juvenile courts to take
jurisdiction over children "[w]hose * **condition or circum-
stances are such as to endanger [their] own welfare" and
make them wards of the court. ORS 419.476(1)(c) (1971); see
Stevens u. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (con-
text includes" 'the preexisting common law and the statutory
framework within which the law was enacted' ") (quoting
Denton and Denton, 326 Or 236, 241, 951P2d693 (1998)). In
enacting those civil statutes, the legislature sought to protect
a child's safety while working to reunite and reintegrate the
child, if possible, into the parents' home. See, e.g., ORS
418.485 	(1971) 	(declaring 	the 	policy 	of the 	state 	"to
strengthen family life and to insure the protection of all chil-
dren either in their own homes or in other appropriate care");
ORS 419.523(2) (1973) (providing for termination of parental

664 	State v. Baker-Krofft
rights only when the "integration of the child into the home of
the parent or parents is improbable in the foreseeable future
due to conduct or conditions not likely to change").
Under 	those 	statutes, 	if parents 	either created
unsafe conditions in the home or failed to correct those con-
ditions, as defendants did here, the juvenile court could take
jurisdiction over the children to protect their safety while the
Children's Services Division, as the agency was then known,
worked with the parents to correct those conditions so that
the family could be reunited. The state's position-that the
legislature also intended to criminalize all conduct that
endangers a child's safety-does not readily square with the
policy expressed in those civil statutes.
We recognize that those civil and criminal statutes
may overlap in some circumstances. For example, if a parent
intentionally withheld necessary and adequate food from his
child, that conduct could give rise both to juvenile court juris-
diction and also to criminal liability. As our discussion of the
text demonstrates, however, we do not think that the legis-
lature intended that the phrase "withhold[ing] necessary and
adequate * * * physical care" would sweep within it all the
safety risks within a home that can give rise to juvenile court
jurisdiction. Rather, it left the sort of risks at issue in these
cases to the civil law, with its salutary focus on protecting the
child while working to reunite the family.
We also look to legislative history to confirm the text
and context. See State v. Gaines, 346 Or 160, 172, 206 P3d
1042 (2009) (looking to legislative history to confirm text). As
originally proposed in 1973, Senate Bill (SB) 780 made any-
one who "cruelly mistreats or maltreats any person over the
age of 65 years" guilty of a misdemeanor. Bill File, Special
Committee on Aging, SB 780 (1973). Senator Fadeley intro-
duced the bill in response to reports of nursing home abuse
and to protect the residents of those facilities. Minutes,
Special Committee on Aging, Apr 9, 1973, 1. Commenting on
the bill as originally proposed, he explained that the "bill
doesn't go as far as the child neglect bill [enacted in 1971
did]." Tape Recording, Special Committee on Aging, SB 780,

Cite as 348 Or
Apr 9, 1973, Tape 4, Side 2 (statement of Sen Edward
Fadeley). He distinguished SB 780 from the child neglect
laws, which he described as making it a crime to leave a child
"unattended at any place where it may be likely to endan-
ger [the child's] welfare. We weren't going to that. We were
talking about some action or nonaction ***that resulted
in cruel deprivation or the undue threat of fear."
Id. As Senator Fadeley explained, SB 780 was intended to
focus more narrowly on withholding food and other necessi-
ties from seniors. Id.
The bill, as drafted, raised vagueness concerns, and
Senators Fadeley and Carson undertook to redraft the bill.
Their work produced a bill that is substantially in the same
form as the wording in the current statutes. As redrafted, the
bill applied to dependent persons generally while specifying
more particularly the actions that the bill prohibited-
withholding necessary and adequate food, physical care, and
medical attention. The Senate committee considered the bill
at its next two hearings. No tape recording of those hearings
exists, and the minutes of those hearings do not provide any
guidance on the meaning of the redrafted bill. The only expla-
nation of the redrafted bill comes from Senator Carson's dis-
cussion of the bill before the full Senate.
Before the full Senate, Senator Carson began by
referring to the testimony presented before the committee
about the abuse of the elderly that had taken place in
assisted 	living facilities. 	Tape 	Recording, 	Senate 	Floor,
SB 780, June 29, 1973, Tape 32, Side 1 (statement of Sen
Wallace P. Carson, Jr.). He then stated:
"[The bill is] a little different than the bill that was orig-
inally introduced, but I believe it goes to the same point. We
[heard] considerable testimony in committee [about) some
of the practices in some of the homes for the aged, or, in fact,
where any citizen of Oregon may be housed. Sometimes
people can hurt other people by intentionally or negligently
withholding adequate food, physical care or medical atten-
tion from the people when they have an affirmative duty to
provide that attention. We felt that the criminal code, if it's
a physical abuse thing where somebody actually hits some-
one, the criminal code takes care of that [already].

666 	State v. Baker-Krofft
"Where it's nonfeasance rather than malfeasance, in
other words, where it's withholding of some food or some
other thing, the criminal code perhaps did not speak
directly to that. * * *The only difference [between first- and
second-degree criminal mistreatment] being that the sec-
ond degree is, is a misdemeanor, a Class A misdemeanor
that relates to negligently or unintentionally withholding
the services from this individual and the more serious crime
of criminal mistreatment in the first degree is where one
who has an affirmative duty to provide the food, or the
physical care or medical attention intentionally withholds
that service."
Id. (emphasis added). Immediately after Senator Carson's
statement, the Senate voted to pass the bill. The House also
passed the bill, and the Governor signed it into law.
We note two observations regarding the legislative
history. First, Senator Carson explained that persons who
have an affirmative duty to provide food, physical care, or
medical attention violate the statutes when, with the requi-
site mental state, they "withhol[dJ that service." (Emphasis
added.) Senator Carson's explanation that the statutes pro-
hibit withholding specific services is at odds with the state's
position that the statutes criminalize any and all acts that
create or fail to correct a future safety risk. The second point
is related to the first. Nowhere in the available legislative
history does anyone mention creating or failing to correct
environmental dangers as the focus of the bill. Rather, the
examples mentioned before either the committee or the
Senate involved the failure to provide essentials, such as
food, from dependent persons. We find nothing in the legis-
lative history to support the broad reading that the state
urges. Rather, the legislative history is consistent with the
narrower view of the statutes that we draw from their text
and context.
Considering the text and context of ORS 163.200
and ORS 163.205 in light of their legislative history, we hold
that a person withholds necessary and adequate physical
care from a dependent person when the person keeps back
from the dependent person those physical services and atten-
tion that are necessary to provide for the dependent person's

Cite as 348 Or 655 (2010) 	667
bodily needs. 5 In this case, the question is whether creating
or failing to correct safety hazards in the home constitutes
withholding adequate and necessary physical care, and we
turn to the facts of the two cases.
In Baker-Krofft, the evidence taken in the light most
favorable to the state showed that some electrical devices and
a space heater positioned on a stack of straw in a chicken
coop in the backyard posed potential fire hazards, that there
were no fire alarms in the house, and that the house was full
of clutter that would impede an escape. 6 On the other hand, it
was uncontested that the child was in good health and that
the fire dangers posed only a risk of future harm. Put differ-
ently, there was no evidence from which a reasonable trier of
fact could infer that the defendant in Baker-Krofft had with-
held from her child some physical service necessary to pro-
vide for the child's bodily needs, nor was there any evidence
that defendant failed to protect her child from an immediate
harm.
In McCants/Walker, the evidence taken in the light
most favorable to the state showed an incredibly dirty home
with small pieces of plastic that posed potential choking haz-
ards within reach of the children. However, the children were
well fed and healthy. No evidence permitted a reasonable
inference that defendants had failed to provide for their chil-
dren's bodily needs or protect them from an immediate harm.
This is not to say that defendants in either case were
exemplary parents. It may well be that, in light of the condi-
tions of defendants' homes and the attendant risks to their
5 The services necessary to maintain a dependent person's bodily health will
vary depending on the person's needs. They may include, for example, periodically
turning a bedridden person who is unable to move on her own so that she does not
develop bed sores or maintaining a child or elderly person's personal hygiene so
that the person does not develop infections or some other illness. This case does not
require us to explore all the types of physical care that might be required. Rather,
the question in this case is limited to whether the prohibition against withholding
physical care includes creating or failing to correct a safety hazard in the home.
6 At trial, there was testimony that the child had head lice at some point and
that the house and the child's bedding were filthy. However, because the state con-
cedes in its briefthat "those conditions, by themselves, are insufficient to support a
conviction," we do not consider them.

children's safety, the juvenile court could have takenjurisdic-
tion over the children to protect them while the Department
of Human Services (the successor to the Children's Services
Division) worked with defendants to correct the unsafe con-
ditions in their homes. Those conditions, however, were not
sufficient to give rise to criminal liability under either ORS
163.200 or ORS 163.205.
In State v. Baker-Krofft, 8057958, the decision of the
Court of Appeals and the judgment of the circuit court are
reversed.
In State v. McCants/Walker, S058148, the decision
of the Court of Appeals and the judgment of the circuit court
are reversed.