418 July 16, 2026 No. 32
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
RAMON AMADOR-HERNANDEZ,
Petitioner on Review.
(CC 19CR56998; 19CR57003)
(CA A177568 (Control); A177569) (SC S071880)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 13, 2026.
Shawn Evans Wiley, Deputy Public Defender, Oregon
Public Defense Commission, Salem, argued the cause and
filed the briefs for petitioner on review. Also on the briefs
was Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
Jeff J. Payne, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief was Dan Rayfield, Attorney General, and Paul
L. Smith, Interim Solicitor General.
BUSHONG, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
* Appeal from Multnomah County Circuit Court, Kelly Skye, Judge. 338 Or App 479 (2025) (nonprecedential opinion).
Cite as 375 Or 418 (2026) 419
420 State v. Amador-Hernandez
BUSHONG, J.
In this criminal case, we are asked to decide what it
means for a parent to “withhold” food and dental care that is
“necessary and adequate” for the parent’s children under one
of Oregon’s criminal mistreatment statutes, ORS 163.205(1)
(a), and whether there is sufficient evidence in this case to
support defendant’s convictions on two counts of first-degree
criminal mistreatment. On appeal, defendant contended
that there was insufficient evidence that he had knowingly
withheld necessary and adequate food or dental care within
the meaning of ORS 163.205(1), and that applying the criminal mistreatment law to these facts did “nothing more than
criminalize poverty.” State v. Amador-Hernandez, 338 Or
App 479, 482 (2025) (nonprecedential opinion). The Court of
Appeals disagreed and affirmed the convictions. We allowed
defendant’s petition for review and now affirm.
As we will explain, we have interpreted “withholds”
in the criminal mistreatment statute to mean “keeps back,”
and the parties agree that a person must be able to access
and provide food and care to withhold it from a dependent
child. Poverty can certainly affect whether a person has
that ability, but we agree with the Court of Appeals that
the record here supports the conclusion that defendant was
able to access and provide food for his children. Because food is essential to a child’s growth and development, we interpret “necessary and adequate” food in this context to mean
food that, at a minimum, is necessary and adequate to prevent severe and chronic malnutrition. Finally, we conclude
that there was sufficient evidence in this record to support
the trial court’s conclusions that defendant acted knowingly
when he withheld necessary and adequate food from both
children and dental care from the youngest child.
Accordingly, we affirm the decision of the Court of
Appeals and the judgment of the circuit court.
I. BACKGROUND
A. Facts
In a criminal appeal challenging the sufficiency of
the evidence to support a conviction, we review the evidence
Cite as 375 Or 418 (2026) 421
in the light most favorable to the state to determine whether
a rational trier of fact could have found the 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).
We summarize the facts from the record consistent with
that standard.
Defendant and his wife were jointly charged with
two counts of first-degree criminal mistreatment, ORS
163.205. Counts 2 and 3 of the indictment alleged that
defendant and his wife had intentionally and knowingly
withheld necessary and adequate food, physical care, and
medical attention from their daughters, G and T.1
The situation came to light after the Department
of Human Services (DHS) obtained a warrant for protective
custody of G and T, who were 8 and 9 years old at the time.
The DHS caseworker, Constanza, testified that, when he
first saw the girls, they were in a back bedroom that smelled
like urine. Their clothes and skin were dirty, their hair was
matted, and they “were really scared.” Constanza called it
“the worst chronic neglect case” he had seen in 14 years at
DHS. He referred the children to CARES Northwest because
of his concerns about their well-being.
A physician at CARES Northwest, Dr. BishopPerdue, examined both girls. Bishop-Perdue’s reports stated
that the medical evaluations for both girls were “significant
for signs of malnutrition including small size, short statute, no subcutaneous fat stores and bitemporal wasting.” BishopPerdue testified at trial that “bitemporal wasting” meant
that “the muscles along the side of their face were much
smaller than they should be.” She further testified that both
girls had “significant dental decay,” and that G had multiple
visible cavities, abscesses, and missing teeth, which made
it painful for her to eat and made her vulnerable to “whole
body infections.” According to Bishop-Perdue’s reports, both
girls needed treatment for their “rotten teeth,” and T had
1
Count 1 of the indictment -- which alleged that defendant’s wife committed first-degree criminal mistreatment against her daughter, JC -- did not charge defendant with a crime as to JC. Defendant was separately charged with and convicted of five counts of first-degree sexual abuse, ORS 163.427, against another stepdaughter, AC. Those convictions are not at issue here. 422 State v. Amador-Hernandez
reported that she and her siblings “were hungry and there
was [either] no food or bad, rotten food in the house to eat.”
Bishop-Perdue concluded that G and T had been
neglected for years, and that the neglect had already caused
the children physical harm and risked causing long-term
impairment of their physical and mental development.
When asked whether a person without medical training
would have noticed G’s stunted growth and dental issues,
Bishop-Perdue testified that a “nonmedically trained person
would have noticed that [G] was very small and would have
likely presumed that she was significantly younger based on
how she presented and would have noticed her teeth.” She
also testified that the children had coverage through the
Oregon Health Plan. According to Bishop-Perdue’s reports,
both girls suffered from “chronic” malnutrition, which, as
she testified at trial, would have developed over the course
of several years.
A counselor from the girls’ elementary school, NashSedda, testified that she had become increasingly concerned
about the girls over time. She became very concerned when
G started losing her hair and her dental problems made it
painful for her to eat. Nash-Sedda testified that 97 percent
of the students at the school were below federal poverty
guidelines and, as a result, all students could receive free
breakfast and lunch at school. But G and T did not fully benefit from the availability of those free meals because their
school attendance was poor. For example, during the 2018-19 school year, they attended school 49 percent of the school
year. The girls also told Nash-Sedda that “they weren’t
being fed at home.” Nash-Sedda testified that she had spoken to defendant at one point about her concerns and he had
expressed a desire “to do better,” but nothing appeared to
change.2
2
Nash-Sedda also testified that the girls often came to school with “matted” hair and they “reeked” of urine. Teachers reported having a hard time having the girls in the classroom because of the urine smell, stating that the smell was “so profound” that other students had trouble being around them. Nash-Sedda explained that the girls’ physical condition affected their ability to make friends because other students made comments about the urine smell or their matted hair. Although this evidence of neglect did not directly implicate whether defendant withheld food or dental care, as we will explain later, defendant’s apparent willingness to ignore these obvious bodily care needs contributes to an inference Cite as 375 Or 418 (2026) 423
The state introduced additional evidence about the
girls’ home life. Defendant’s stepdaughter, JC, was 16 years
old when she testified at trial. JC testified that she was the person who would wake G and T up in the morning and try
to get them to school. JC testified that there “wasn’t much
food in the house” and that the girls were hungry “pretty
often.” JC also testified that the girls “didn’t really go to the dentist” and that both girls had “a lot” of toothaches. JC
testified that defendant and her mother were intoxicated or
drinking alcohol “pretty often,” and that, when they were
drinking, they “wouldn’t really pay attention” to the girls.
JC indicated that defendant was employed part of the time,
doing construction work, and that he paid the rent “most of
the time.”
Another stepdaughter, AC, testified at trial; she
was 20 years old at the time. AC testified that the family
received food stamps and often relied on food banks for food.
According to AC, “[s]ometimes” G and T would have enough
to eat, but they were “behind in their nutrients.” AC testified that defendant’s money “did not always go to food” or
to “what [they] needed” because it was “mostly [spent on]
alcohol.” She further testified that defendant and her mom
would go out to the bar “almost every weekend” and that
they would spend the money that defendant had earned on
alcohol and gambling.3 Finally, AC testified that G and T
had never been taught to brush their teeth.
B. Procedural History
Defendant waived his right to a jury and the case
was tried to the court. After the state rested its case, defendant moved for a judgment of acquittal on both criminal
mistreatment counts, contending that there was insufficient
evidence that defendant had knowingly withheld necessary
and adequate food and dental care from G and T in violation
of ORS 163.205(1). The trial court denied the motion, concluding that the evidence, viewed in the light most favorable
that he acted “knowingly” in failing to provide necessary and adequate food and dental care to maintain the girls’ bodily health.
3
Of course, going to bars and spending money on alcohol and gambling is not criminal conduct, but it is relevant here because it supports the conclusion that defendant had resources available to him that he could have used to feed his children, and that he knowingly chose to use those resources for other purposes. 424 State v. Amador-Hernandez
to the state, was sufficient to permit a reasonable finder of
fact to find that the state had proved all the elements of the charges beyond a reasonable doubt. Defendant did not present any evidence. After closing arguments, the trial court
found defendant guilty on both counts of first-degree criminal mistreatment.4
Defendant appealed, contending that the case
required the court to construe what it means to “withhold[ ] necessary and adequate” food and dental care as that
phrase is used in the statute, and that withholding necessary and adequate food and care requires more than neglect.
Defendant acknowledged that the evidence would support a
finding of neglect but argued that it was insufficient to prove that he had withheld necessary and adequate food and care
in violation of ORS 163.205(1). Defendant also argued that
the evidence of tooth decay was insufficient under Court of
Appeals precedent to establish criminal mistreatment, citing State v. Drown, 245 Or App 447, 263 P3d 1057 (2011),
rev den, 351 Or 401 (2011).
The Court of Appeals noted that defendant had
assigned error to the denial of his motion for judgment of
acquittal and understood defendant’s appeal to be challenging only the sufficiency of the evidence. Amador-Hernandez,
338 Or App at 480. The Court of Appeals affirmed the convictions based on its evaluation of the sufficiency of the
evidence, applying the standards that it had adopted in
Drown, without engaging in a further statutory interpretation analysis. Id. at 480 (stating that, under Drown, “the
standard of withholding necessary and adequate physical
care can be satisfied by withholding care for a condition that causes or will cause serious physical pain or injury”) (internal quotation marks omitted); id. at 482 (concluding that
“the record contained sufficient evidence” to support the
4
The trial court found persuasive the state’s theory that defendant had knowingly withheld necessary and adequate food and dental care from G and T, and, applying Court of Appeals precedent, concluded that defendant’s conduct constituted criminal mistreatment because it caused or was likely to cause serious physical injury. The court did not find persuasive the state’s theory that defendant had knowingly withheld necessary and adequate medical attention for G’s medical condition, concluding that there was insufficient evidence that G’s condition caused or was likely to cause serious pain or physical injury as required by Court of Appeals’ precedent.
Cite as 375 Or 418 (2026) 425
trial court’s determination that defendant had “knowingly
withheld necessary and adequate food and dental care”
from G and T and that defendant’s actions had “caused or
were likely to cause serious physical injury”).
With respect to dental care, the court noted the evidence that both girls had significant dental decay, and that
G had a “really bad tooth problem” that affected her ability
to eat. Id. at 481-82. The court concluded that this case “has significant distinctions” from Drown, where there was “no
evidence as to which children had toothaches, the severity of
the aches, or any evidence that ‘the children were experiencing symptoms that interfered with their daily activities or
were likely to result in serious harm in the long term.’ ” Id. at 482 n 2 (quoting Drown, 245 Or App at 464-65). The court
also stated that it took “seriously” defendant’s argument that his convictions did “nothing more than criminalize poverty”
but concluded that, because the record “includes evidence of
the availability of food and dental care for the children, this is not a case of a parent who was simply unable to afford
basic necessities.” Id.
Defendant petitioned for review, contending that the
first-degree criminal mistreatment statute, ORS 163.205(1)
(a), required the state to prove that defendant affirmatively
withheld food and care that he was able to provide and that,
under Drown, the food and care that defendant withheld
must have been “absolutely required” to meet the children’s
basic safety and survival needs. See Drown, 245 Or App at
464 (stating that “a person withholds necessary and adequate physical care when the person withholds care that is
absolutely required to meet a dependent’s basic safety and
survival needs”).5 Defendant further contended that the
evidence here was insufficient to meet that standard. We
allowed review to address the statutory interpretation issue
and whether the record contained sufficient evidence to support the convictions under our interpretation of the criminal
mistreatment statute.
5
Defendant does not contend on review that the Court of Appeals erred in applying Drown without engaging in any additional statutory interpretation analysis. Instead, defendant again raises the statutory interpretation issue in this court, elaborating on some of the arguments he had previously asserted in his brief in the Court of Appeals.
426 State v. Amador-Hernandez
II. ANALYSIS
We review the interpretation of a statute for legal
error, applying our familiar methodology that focuses on the
statutory text, context, and any legislative history that we
find to be helpful. State v. Gaines, 346 Or 160, 206 P3d 1042
(2009). After interpreting the statute, we review the evidence in the record, in the light most favorable to the state, to determine whether there is sufficient evidence to allow a
reasonable trier of fact to find that the state has proven the elements of the offense beyond a reasonable doubt. State v.
Walters, 311 Or 80, 82-83, 804 P2d 1164 (1991).
We begin with the statutory interpretation issue.
A. The Statutory Interpretation Issue
ORS 163.205(1)(a) provides, in pertinent 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 supervision of another person, intentionally or knowingly withholds necessary and adequate food, physical care or medical
attention from that other person.”
(Emphasis added.) The same phrase—”withholds necessary
and adequate food, physical care or medical attention”—
is also used in the second-degree criminal mistreatment
statute, ORS 163.200(1)(a) and (b). ORS 163.200 and ORS
163.205 were enacted in 1973 as part of the same bill, Or
Laws 1973, ch 627, §§ 2 and 3, and we refer to those statutes
in this opinion as the criminal mistreatment statutes.
The main difference between first-degree and
second-degree criminal mistreatment is the required mental
state. Under ORS 163.200, a person commits second-degree
criminal mistreatment if the person “withholds necessary
and adequate food, physical care or medical attention” with
criminal negligence. First-degree criminal mistreatment
under ORS 163.205(1)(a) involves the same conduct done
intentionally or knowingly.6
6
In Baker-Krofft, we noted another difference between first-degree and second-degree criminal mistreatment: the second-degree statute applies only Cite as 375 Or 418 (2026) 427
We have determined that, to establish first-degree
criminal mistreatment in violation of ORS 163.205, the state
must prove three elements: (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 “withheld” necessary and adequate food, physical care or medical attention
from that person. State v. Baker-Krofft, 348 Or 655, 660, 239
P3d 226 (2010). In Baker-Krofft, the defendants in two consolidated cases each had children under their care “who were
well fed and healthy but who lived in homes with potential
safety hazards.” Id. at 658.7 We concluded that those safety
hazards “were not sufficient to give rise to criminal liability” for criminal mistreatment. Id. at 668.
In reaching that conclusion, we outlined the elements of first-degree criminal mistreatment under ORS
163.205, as noted above. Defendant in this case does not dispute that he had a legal duty to provide care for G and T,
nor does he dispute that “physical care or medical attention”
can include dental care. Rather, defendant contends that he
did not knowingly “withhold[ ]” food or dental care that was
“necessary and adequate” as those terms are used in ORS
163.205.
We begin with the meaning of the word “withhold.”
We interpreted “withhold” for purposes of ORS 163.205 in
Baker-Krofft to mean “keep back” food, physical care, or
medical attention from a dependent person. 348 Or at 662.8
We explained that the criminal mistreatment statutes “rest
on the premise that the actor keeps back something (food,
physical care, or medical attention) from a person who would
to persons who have a duty to provide care for another, while the first-degree statute also applies to persons who assumed the permanent or temporary care, custody, or responsibility for the supervision of another person. 348 Or at 660 n 3. That difference does not affect the issues on review in this case.
7
Our opinion in Baker-Krofft addressed safety hazards in two separate cases. In one case, the “the house posed specific fire hazards,” and in the other case, “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.” 348 Or at 658.
8
In Baker-Krofft, we noted that “withholds” is a term of common usage, so we interpreted it in accordance with its ordinary meaning. 348 Or at 662. The dictionary defines “withhold” to mean “ ‘to desist or refrain from granting, giving, or allowing : keep in one’s possession or control : keep back.’ ” Id. (quoting Webster’s Third New Int’l Dictionary 2627 (unabridged ed 2002)).
428 State v. Amador-Hernandez
not otherwise be able to obtain it for him or herself.” Id. In this case, the parties agree that we should apply the “keep
back” definition of “withhold” that we adopted in BakerKrofft, and they further agree that a person can “keep back”
food or care only if the person had the ability to access and
provide food and care.9 Thus, the parties agree that “withholds” in ORS 163.205(1), as relevant here and consistent
with our interpretation of that word in Baker-Krofft, means
to “keep back” food or dental care that defendant had the
ability to access and provide to his daughters. We agree
with that interpretation.
In addition, however, defendant contends that “withholds” in ORS 163.205(1) means more than having the ability to access and provide food and care and failing to provide it to a dependent person. Defendant uses varying terms in
articulating that argument. In his opening brief, defendant
argued that the statute required the state to prove that he
“purposely held back food from his children, as a form of
punishment or otherwise” or “in a manner amounting to a
cruel deprivation.” In his reply brief, defendant argues that
the statute “prohibits not the mere failure to provide, but
the intentional or conscious refusal to provide necessary
food and care” to his children, or that defendant “had the
financial resources and access to purchase food or obtain
medical care, but did not do so in order to deny such food or
care to G and T.” The “gravamen” of the statute, according to
defendant, “is an intentional or knowing ‘cruel deprivation’
9
The parties follow different paths to get to that agreement. The state contends that a person must be capable of providing food and care to withhold it, because the minimum requirement for criminal liability is “the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.” ORS 161.095(1) (emphasis added). Defendant contends that a defendant must be capable of providing food and care to withhold it, because the criminal nonsupport statute, ORS 163.555, includes a defense that requires such an assessment. See ORS 163.555(3) (providing an affirmative defense for failing to provide child support if the defendant “has a lawful excuse for failing to provide child support”); State v. Langford, 90 Or 251, 260, 176 P 197 (1918) (interpreting a similar provision in a predecessor to ORS 163.555 to mean that “the obligation of the father must be measured with reference to his ability, honestly exercised, and with regard to his financial resources”).
We need not rely on either ORS 161.085(1) or the “lawful excuse” provision in ORS 163.555 based on our conclusion that a person can “withhold” food or care in violation of ORS 163.205 only if the person “keeps back” food or care that the person is able to access and provide to a dependent person. Cite as 375 Or 418 (2026) 429
of necessary food or care at the level of a nursing home
employee intentionally holding back a resident’s medication
or food as punishment.”
Regardless of how it is worded, we understand defendant’s argument to be that a person can “withhold” food and
care from a dependent person only if the person could access
and provide food and care to a dependent person and chose
not to do so for the specific purpose of depriving the dependent person of the food or care that the person needs. That
argument is refuted by the text of ORS 163.205(1), which
applies when a person withholds food or care intentionally
or knowingly.
Intentionally withholding food and care would
include choosing to keep back food and care for the specific
purpose of depriving a dependent person of necessary food or
care, such as for a punishment or to be cruel.10 But a person
can violate ORS 163.205(1) by knowingly withholding necessary and adequate food or care without having that purpose.
A person acts “knowingly” under the criminal code when “a
person acts with an awareness” that the person’s conduct is
“of a nature” described in the statute, “or that the circumstance” described in the statute exists. ORS 161.085(8). In
this context, defendant could withhold food knowingly if he
acted “with an awareness” that his children needed food,
he was aware that he was able to access and had a duty to
provide it, and he was aware that he was not providing that
food. And, as we will explain, under the standard adopted in
Drown—with which we agree—defendant would also need
to be aware that his failure caused or would cause severe
malnutrition or serious pain, injury, or illness. Thus, defendant could knowingly withhold food from his children even
if he did not choose to withhold food for the specific purpose of depriving them of it as a form of punishment, to be cruel,
or to cause them pain, injury, or illness.
The parties’ remaining dispute involves the meaning of “necessary and adequate” as applied, in this case,
to food and dental care. In Baker-Krofft, we held that “a
10
“Intentionally” is defined in the criminal code to mean that “a person acts with a conscious objective to cause the result or engage in the conduct” described in the criminal statute. ORS 161.085(7).
430 State v. Amador-Hernandez
person withholds necessary and adequate physical care
from a dependent person when the person 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 at 666-67 (emphasis added). In reaching that
conclusion, we noted that the legislature had grouped physical care “together with food and medical attention,” which
are both “essential to maintain bodily health.” Id. at 663.
That suggested that “the legislature understood that physical care was similarly limited to those physical services and
attention that are necessary to provide for a dependent person’s bodily needs.” Id. (emphasis added).
That observation suggests that withholding “necessary and adequate” food or medical attention in violation
of the criminal mistreatment statutes means keeping back
food or medical attention that, like physical care, was necessary to provide for a dependent person’s bodily needs. As we
noted in Baker-Krofft, food is essential to maintain a dependent person’s bodily health. Id. Applying that same approach
to withholding necessary and adequate food or dental care
supports the conclusion that a person can withhold necessary and adequate food or dental care from a dependent
person when the person keeps back from the dependent person food or dental care that is necessary to provide for the
dependent person’s bodily needs.
We further noted in Baker-Krofft that the services
“necessary to maintain a person’s bodily health will vary
depending on the person’s needs.” Id. at 667 n 5. As examples, we noted that services necessary to maintain a dependent person’s bodily health may include “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.” Id.
This case involves the needs of defendant’s children
for food and dental care, and those needs are different. A
child needs food to survive, grow, and develop physically
and mentally, and to maintain their bodily health. At a
minimum, there is no question that a parent must provide
sufficient food to avoid starving their children to death or
Cite as 375 Or 418 (2026) 431
nearly to death. The fact that the legislature criminalized
a parent’s withholding of food that is both “necessary and
adequate” for a dependent child suggests that, in addition to
requiring parents to provide sufficient food to avoid starving or nearly starving children to death, the legislature also understood—as we observed in Baker-Krofft—that food is
“essential to maintain bodily health,” and it is particularly
essential for the growth and development of children. Thus,
regardless of where the line is drawn between providing
necessary and adequate food for a dependent child and not
providing that food, the standard for establishing criminal
mistreatment can be satisfied by showing that a parent
withheld food to such an extent that it caused severe and
chronic malnutrition.11
A child’s needs for dental care may vary depending
on the child. All children lose their baby teeth, and many
children develop tooth decay in varying degrees of severity. Although we have not previously decided when a parent’s failure to address their child’s dental needs amounts
to first-degree criminal mistreatment in violation of ORS
163.205, the Court of Appeals addressed that issue in some
detail in Drown, 245 Or App 447. And the court’s reasoning
is persuasive.
There, the Court of Appeals reversed first-degree
criminal mistreatment convictions that were based on a
parent’s failure to attend to the dental needs of four of her
11
That conclusion follows from the ordinary meaning of the words “necessary and adequate.” “Necessary” generally means “that [which] cannot be done without : that must be done or had : absolutely required : essential, indispensible.” Webster’s at 1510-11. However, this court has stated that “necessary” “is a word susceptible of various meanings.” State v. Young, 74 Or 399, 406, 145 P 647 (1915). It “may import absolute physical necessity, or that which is only convenient or useful or essential.” Id. Courts construing “necessary” have “almost universally” held it to mean “needful or convenient,” especially “where the word is used in conjunction with other and stronger terms.” Id.; see also State ex rel Dept. of Rev. v. Capital Shelters, 295 Or 561, 563, 668 P2d 1214 (1983) (holding that “necessary” in statute giving Department of Revenue power to subpoena records “whenever necessary” means “relevant to the purposes of a lawful investigation and the object of a demonstrable, practical need”). “Adequate” means “equal to, proportionate to, or fully sufficient for a specified or implied requirement.” Webster’s at 25. Food is “necessary” because it is essential to avoid starving to death, and “adequate” food would be food that is sufficient in both quality and quantity to avoid severe and chronic malnutrition or other serious illnesses. 432 State v. Amador-Hernandez
dependent children.12 The court concluded from the text,
context, and legislative history of the criminal mistreatment statutes that the standard for withholding necessary
and adequate physical care “can be satisfied by withholding
care for a condition that causes or will cause serious physical pain or injury.” Id. at 464. The court stated that failing to treat pain and physical injuries “can constitute criminal
mistreatment, but whether it does depends on the nature
of the pain or injury, including the intensity, duration, and
consequences of the pain or injury[.]” Id. at 464.
Applying that standard to dental care, the court
noted that the evidence in Drown established that four of
the defendant’s dependent children required dental work
after they were taken into DHS custody. Specifically, there
was evidence that two of the children needed fillings, and
two needed root canals. Id. at 464. Although there was some
evidence that some of the children had toothaches at times,
there was no evidence “regarding the severity—either in
degree or duration—of the toothaches.” Id. at 465. Thus,
the court concluded, “there was no evidence from which a
rational trier of fact could find that any of the children suffered serious physical pain or injury from the toothaches.”
Id. The court noted, for example, that there was no evidence
“that the children were experiencing symptoms that interfered with their daily activities or were likely to result in
serious harm in the long term.” Id.
We agree with the Court of Appeals’ approach to
determining whether a parent’s failure to attend to a dependent child’s dental needs amounts to criminal mistreatment.
The text of the statute, as we interpreted it in Baker-Krofft
and consistent with the Court of Appeals’ interpretation in
Drown, suggests that a parent withholds dental care that is
“necessary and adequate” for a dependent child in violation
of the criminal mistreatment statutes when the parent does
not take any action to address severe dental problems that
cause or will cause the child serious pain or other significant
12
The defendant in Drown was charged with assault and criminal mistreatment of her nine youngest dependent children. On the criminal mistreatment charges, the state presented evidence that the family’s home was “cramped and cluttered” and that defendant “had failed to take the children for routine medical and dental examinations or have them immunized.” 245 Or App at 451. Cite as 375 Or 418 (2026) 433
and lasting symptoms that interfere with the child’s daily
activities or are likely to result in serious harm in the long term.13
Defendant makes two additional arguments based
on the context of the criminal mistreatment statutes.
Defendant first points out that the context includes civil
statutes that existed when the legislature enacted the criminal mistreatment statutes in 1973 that allowed the agency
(then known as the Children Services Division) and juvenile courts to intervene and provide for children whose basic
needs were not being met by their parents. See Baker-Krofft,
348 Or at 663 (noting as a contextual clue that, when the
legislature enacted the criminal mistreatment statutes in
1973, “it did so against a backdrop of civil statutes that
authorized juvenile courts to take jurisdiction over children
‘whose conditions or circumstances are such as to endanger
their own welfare’ and make them wards of the court” (quoting ORS 419.476 (1)(c) (1971) (internal alterations omitted))). According to defendant, that context demonstrates that
the legislature intended “withholds” as it is used in ORS
163.205 to mean more than neglect or a failure to provide
food and care sufficient to justify intervention by DHS and
the juvenile court.
We agree that neglect sufficient to justify intervention by DHS and the juvenile court may not necessarily amount to criminal mistreatment, but we do not agree
that that requires us to interpret “withholding necessary
and adequate food, physical care or medical attention” in
the criminal mistreatment statutes any differently than we
have. As we explained in Baker-Krofft, those civil statutes
supported our conclusion that the legislature did not intend
to “sweep within” the criminal mistreatment statutes “all
the safety risks within a home that can give rise to juvenile
court jurisdiction.” 348 Or at 664. Rather, the legislature
13
In Drown, the Court of Appeals also rejected the defendant’s argument that the evidence did not support a finding that she knowingly withheld necessary and adequate care from another child, D, who had severe vision problems. The court noted “the degree of D’s vision problems -- he was legally blind and could not see to read -- and the fact that those problems were apparent to others[.]” 245 Or App at 461. Under those circumstances, the court concluded that “a rational trier of fact could find that [the] defendant knew D needed vision correction in order to go about his daily tasks safely.” Id. at 461-62. 434 State v. Amador-Hernandez
“left the sort of [safety] risks at issue in [Baker-Krofft] to the civil law, with its salutary focus on protecting the child while working to reunite the family.” Id. But we distinguished safety risks from a parent’s withholding of food.
We noted that the “civil and criminal statutes may overlap
in some circumstances.” Id. As an example, we stated that,
“if a parent intentionally withheld necessary and adequate
food from his child, that conduct could give rise both to juvenile court jurisdiction and also to criminal liability.” Id.
Defendant’s other contextual argument is based on
criminal statutes that existed when the legislature enacted
the criminal mistreatment statutes in 1973. As defendant
points out, the criminal code that Oregon adopted in 1971
already included three provisions that addressed the subject of a parent’s failure to care for a dependent child. See Or Laws 1971, ch 743, § 173 (child abandonment, now codified
at ORS 163.535); § 174 (child neglect, now codified at ORS
163.54514); § 175 (criminal nonsupport, now codified at ORS
163.555).
Two of those statutes cover conduct that could also
come within the criminal mistreatment statutes in some
circumstances.15 As enacted, the child-neglect statute, ORS
163.545(1) (1971), provided:
“A person having custody or control of a child under
10 years of age commits the crime of child neglect if, with
criminal negligence, he leaves the child unattended in or at
any place for such period of time as may be likely to endanger the health or welfare of such child.”
Thus, child neglect under that statute included criminally negligent conduct, as well as intentional, knowing, or
14
The child neglect statute that was adopted in 1971 was amended in 1991, to specify that the conduct prohibited by the statute constituted second-degree child neglect. That change was necessary because the legislature created a new crime of first-degree child neglect, ORS 163.547, to prohibit persons from allowing children to be around certain illegal activities involving controlled substances. Or Laws 1991, ch 832, § 2.
15
The child abandonment statute applies if a parent, lawful guardian, or other person lawfully charged with the care or custody of a child under 15 years of age, “deserts the child in any place with intent to abandon it.” ORS 163.535(1). Defendant does not explain how criminal mistreatment in violation of ORS 163.200 or ORS 163.205 could also constitute “abandonment” in violation of ORS 163.535.
Cite as 375 Or 418 (2026) 435
reckless conduct. See ORS 161.115(3) (stating that, if a statute describes the culpable mental state as criminal negligence, that mental state “is also established if a person acts intentionally, knowingly or recklessly”).
The criminal nonsupport statute, ORS 163.555
(1971), provided in relevant part:
“A person commits the crime of criminal nonsupport if,
being the parent, lawful guardian or other person lawfully
charged with the support of a child under 18 years of age,
born in or out of wedlock, he refuses or neglects without
lawful excuse to provide support for such child.”
“Support” was defined by ORS 163.505(2) (1971), to include
“necessary and proper shelter, food, clothing, medical
attention and education.”16
As enacted, the criminal nonsupport statute did
not specify a culpable mental state, but it did state that it
applied to a person who “refuses or neglects without lawful excuse” to provide support for a child, ORS 163.555.
In contrast, first-degree criminal mistreatment applies to
a person who intentionally or knowingly “withholds” necessary and adequate food, physical care or medical attention from a child, ORS 163.205, and second-degree criminal
mistreatment applies to a person who engages in the same
conduct with criminal negligence.17 Criminal nonsupport
and first-degree criminal mistreatment are both class C
felonies, and the statutes overlap in some respects, but differ in others. For example, “refusing” to provide support is
like “withholding” such support; both involve volitional acts. But “neglects” as used in the criminal nonsupport statute
16
The legislature amended the criminal nonsupport statute in 2005, changing “refuses or neglects without lawful excuse” to “knowingly fails to” provide support for a child that the person is legally required to support. Or Laws 2005, ch 502, § 1. The legislature also deleted “without lawful excuse” and made a “lawful excuse” an affirmative defense. Id.
17
First-degree criminal mistreatment under ORS 163.205 differs from second-degree criminal mistreatment under ORS 163.200 in terms of the culpable mental state. Both statutes apply to the act of “withholding” food and medical attention that is “necessary and adequate” to a dependent person. That act constitutes first-degree criminal mistreatment if it is done “knowingly or intentionally,” ORS 163.205(1), while it constitutes second-degree criminal mistreatment if it is done “with criminal negligence,” ORS 163.200(1). Second-degree criminal mistreatment is a class A misdemeanor.
436 State v. Amador-Hernandez
as enacted in 1971 may be different: failing to provide necessary support, perhaps even negligently—without taking
any affirmative act—could have been sufficient to establish
neglect,18 while first-degree criminal mistreatment requires
an intentional or knowing “withholding” of food and care.
And “necessary and adequate food, physical care or medical
attention” describes specific categories of “support.”
Thus, we acknowledge that there is some overlap
among those statutes, and some conduct could be considered a violation of multiple provisions. Defendant contends
that we should presume as a matter of statutory interpretation that, when the legislature enacted the criminal mistreatment statutes in 1973, it did not intend to criminalize
any conduct that was already a crime under the criminal
nonsupport statute that existed at that time. Thus, defendant argues, we should understand the legislature to have
intended that the crime of first-degree criminal mistreatment would require proof that defendant was able to provide food and dental care that his children needed for their
survival, but he chose not to provide them with that food
and dental care for the specific purpose of cruelly depriving
them of the food or care that they needed, such as for punishment. By contrast, the criminal nonsupport statute only
required proof that the defendant knowingly failed to provide support—which could include food and dental care—to
his children.
We disagree with defendant’s interpretation of the
criminal mistreatment statutes.
There is no principle of statutory interpretation
that requires us to presume that a newly enacted statute
was intended to address only conduct that was not already
addressed by existing statutes. Rather, we have recognized
that it is not uncommon for there to be “multiple statutory
18
We did not address whether criminally negligent conduct would have been sufficient to establish that a person unlawfully “neglected” to provide support in violation of the criminal nonsupport statute as it was enacted in 1971, and, as noted, the legislature amended that statute in 2005 to delete the “neglects” provision and require a “knowing” mental state to establish criminal nonsupport. But criminally negligent conduct was enough to establish a violation of the child neglect statute as enacted in 1971, and it is enough to establish second-degree child neglect under the current statute, ORS 163.545(1).
Cite as 375 Or 418 (2026) 437
violations based on the same conduct or criminal episode[.]”
State v. Gensitskiy, 365 Or 263, 273, 446 P3d 26 (2019).
See also State v. Ofodrinwa, 353 Or 507, 520, 300 P3d 154
(2013) (stating that “nothing prevents the legislature from
enacting duplicative or overlapping statutes, but we ordinarily hesitate to attribute that intent to the legislature”). In Ofodrinwa, for example, we noted that, when using age
as the basis for classifying degrees of sexual offenses, the
legislature has provided that persons “under” a specified
age lack the capacity to consent. As a result of that drafting technique, “the same act—intercourse with an 11-year-old
child—can be charged as first-degree rape, second-degree
rape, third-degree rape, and second-degree sexual abuse.”
Id. at 531 n 24.
Although we “hesitate” to attribute the intent to
enact duplicative or overlapping statutes to the legislature,
Ofodrinwa, 353 Or at 520, we have interpreted criminal
statutes to be limited to “filling a gap” in existing law only where there was evidence in the statutory text, context,
or legislative history demonstrating that the legislature
intended to limit the scope of the new legislation in that
way.
For example, in State v. Gonzalez-Valenzuela, 358
Or 451, 365 P3d 116 (2015), we interpreted the intended
scope of the criminal endangerment statute, ORS 163.575,
which made it unlawful for a person to knowingly permit a
child “to enter or remain in a place where unlawful activity
involving controlled substances is maintained or conducted.”
Id. at 453 (quoting ORS 163.575(1)(b)). The defendant in that
case was charged with two counts of child endangerment in
violation of ORS 163.575—in addition to being charged with
unlawful possession of heroin, methamphetamine, and a
controlled substance—when she possessed those substances
in a container in her purse while in a car with her two children. We held that the defendant was entitled to a judgment
of acquittal on the child endangerment charges.
In reaching that conclusion, we explained that “[t]
he child endangerment statute is part of a patchwork of
statutes intended as continuation of a previous statute prohibiting contributing to the delinquency of a minor[.]” Id.
438 State v. Amador-Hernandez
at 469 (citing former ORS 167.210 (1969), repealed by Or
Laws 1971, ch 743, § 432). After this court had held that
the contribution statute was unconstitutionally vague, State
v. Hodges, 254 Or 21, 28, 457 P2d 491 (1969), the legislature—following a recommendation from the Criminal Law
Revision Commission—had enacted the criminal endangerment statute, among others, “to ensure the continuing
criminality of conduct previously prohibited under the contribution statute[.]” Gonzalez-Valenzuela, 358 Or at 469 (citing Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report,
162 (July 1970)). In so doing, we noted that the Commission
had recognized that, “ ‘in almost every instance the same
conduct could be prosecuted’ under other sections of the proposed criminal code.’ ” Id. at 469-70 (quoting Commentary at
162). We explained that “[t]he child endangerment statute
was intended to fill gaps left by those other sections and,
therefore, was ‘designed to provide coverage for specific acts injurious to the welfare of minors not specifically prohibited elsewhere in the proposed Code.’ ” Id. at 470 (quoting
Commentary at 178). See also State v. McBride, 352 Or 159,
165, 281 P3d 605 (2012) (concluding from the text and legislative history of the child endangerment statute that its
“focus is on permitting a minor to enter or remain in a place
where illegal drug activity is occurring; it is not on the act of engaging in illegal drug activity with minors present”).
Here, there is no comparable evidence that the
legislature intended only to “fill gaps” in the existing laws
protecting children when it enacted the criminal mistreatment statutes. Rather, it intended to enact protections for a
class of victims that included—but was broader than—those
covered by existing laws protecting children and capturing
a more limited range of harms to child victims than the
harms covered by other statutes. We have recognized that
at various times, the legislature has “put its mind to the
deprivations of which * * * children are alleged to be victims and has attempted to remedy” those situations “by enacting a vast panoply of procedures, both civil and criminal, to
ensure that children receive proper nurturing, support and
physical care.” Burnette v. Wahl, 284 Or 705, 710, 588 P2d
Cite as 375 Or 418 (2026) 439
1105 (1978).19 Statutes adopted by the legislature as part
of that panoply of procedures or any “comprehensive plan”
to furnish children “with parental nurturing and physical
care” may overlap, because “no plan established by the legislature over a period of years can ever have perfect symmetry.” Burnette, 284 Or at 714. See also Baker-Krofft, 348 Or
at 664 (recognizing that civil and criminal statutes designed
to protect dependent children “may overlap in some circumstances”). As we will explain, there is no evidence in the legislative history of the criminal mistreatment statutes, ORS
163.200 and ORS 163.205, that the legislature intended
only to fill a gap in existing law without any overlap.
We summarized the relevant legislative history in
Baker-Krofft, 348 Or at 664-66. As noted, the criminal mistreatment statutes, ORS 163.200 and ORS 163.205, were
first enacted in 1973. Or Laws 1973, ch 627, §§ 2, 3. The bill, Senate Bill (SB) 780, as originally proposed, “made anyone
who ‘cruelly mistreats or maltreats any person over the age
of 65 years’ guilty of a misdemeanor.” Baker-Krofft, 348 Or
at 664 (quoting Bill File, Special Committee on Aging, SB
780 (1973)). Senator Fadeley introduced the bill “in response
to reports of nursing home abuse and to protect residents of
those facilities.” Id. He indicated that, as originally proposed, the bill did not “ ‘go as far as the child neglect bill [enacted in 1971 did].’ ” Id. (quoting Tape Recording, Special Committee
on Aging, SB 780, April 9, 1973, Tape 4, Side 2 (statement of
Senator Edward Fadeley)). Senator Fadeley “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 endanger [the child’s] welfare.’ ”
348 Or at 665. As Senator Fadeley explained, SB 780 was
not “ ‘going to that [level].’ ” Id. Instead, he explained, the bill was addressing “ ‘some action or nonaction * * * that resulted in cruel deprivation or the undue threat of fear.’ ” Id. Thus,
19
In State v. Sparks, 267 Or App 181, 202, 340 P2d 688 (2014), the Court of Appeals summarized the differences “between the categories of offenders to which those various criminal statutes concerning the welfare of children apply.” Child neglect, whether in the first or second degree, applies “only to persons having custody or control of a child, whereas child abandonment and criminal nonsupport apply to parents, lawful guardians or other persons charged with, in the case of abandonment, the care and custody of a child, or, in the case of criminal nonsupport, with the support of a child.” Id. at 201-02 (internal quotation marks omitted). 440 State v. Amador-Hernandez
the bill as originally proposed “was intended to focus more
narrowly on withholding food and other necessities from
seniors.” Id.
After vagueness concerns arose, Senators Fadeley
and Carson redrafted the bill. Id.20 A Senate committee considered the redrafted bill at two subsequent hearings, but,
as we noted in Baker-Krofft, “[n]o tape recordings of those
hearings exists, and the minutes of those hearings do not
provide any guidance on the meaning of the redrafted bill.”
Id. at 665. The redrafted bill removed “cruelly mistreats
or maltreats” from the bill and expanded the scope of the
legislation to protect all dependent persons—not just those
over 65. That resulted in a redrafted bill that was “substantially in the same form” as the bill that the legislature
enacted, now codified at ORS 163.200 and 163.205. Id. As
we explained in Baker-Krofft, the redrafted 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.” Id. But, as we noted in Baker-Krofft, “[t]he only
explanation of the redrafted bill [in the legislative history] comes from Senator Carson’s discussion of the bill before the
full Senate.” Id.
In that discussion, Senator Carson first referred to
testimony that had been presented to the committee about
abuse of elderly persons in assisted living facilities. Id. (citing Tape Recording, Senate Floor, SB 780, June 29, 1973, Tape
32, Side 1 (statement of Senator Wallace P. Carson)). He then
stated that the bill before the Senate was “a little different than the bill that was originally introduced,” but he believed that “it goes to the same point.” Id. He explained that “people can hurt other people by intentionally or negligently
20
One of the vagueness concerns was the original bill’s use of the phrase “cruelly mistreats or maltreats.” One committee member suggested that the bill should not use that phrase because it would be subject to “interpretation by the jury” to see if the conduct was “truly cruel mistreatment or not.” Tape Recording, Special Joint Committee on Aging, SB 780, April 9, 1973, Tape 4, Side 2 (unidentified committee member). Another concern was the fact that the bill only applied to people over the age of 65. Senators Carson and Fadeley discussed the fact that other dependent people “also get mistreated” and proposed expanding the bill to cover anyone who depends on others for care. Tape Recording, Special Joint Committee on Aging, SB 780, April 9, 1973, Tape 4, Side 2 (colloquy between Sen. Wallace Carson and Sen. Ed Fadeley).
Cite as 375 Or 418 (2026) 441
withholding adequate food, physical care or medical attention from the people when they have an affirmative duty
to provide that attention.” Id. at 665. He further explained
that the existing criminal code already “takes care of” physical abuse, id., but that it “perhaps did not speak directly”
to “nonfeasance rather than malfeasance, in other words,
where it’s withholding of some food or some other thing[.]”
Id. at 666. Senator Carson did not address whether conduct constituting “nonfeasance” could already be covered by
the existing criminal nonsupport statute, which, as noted
above, would have applied to a parent’s failure to support
a dependent child. He ended by explaining the difference
between first- and second-degree criminal mistreatment
under the bill, stating that second-degree criminal mistreatment “relates to negligently or unintentionally” withholding necessary services from a dependent individual,
while first-degree criminal mistreatment applies to “intentionally” withholding those services.21 Id.
As we stated in Baker-Krofft, the Senate voted to
pass the bill immediately after Senator Carson’s comments,
the House also passed it, and the Governor signed it into
law. Id. We noted “two observations regarding the legislative
history.” Id. First, Senator Carson had explained that the
criminal mistreatment statutes “prohibit withholding specific services”—food, physical care, or medical attention. Id. That explanation was “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.” Id. Second, we noted that the examples of the type of conduct that would be prohibited by
the statutes “involved the failure to provide essentials, such as food, from dependent persons.” Id. at 666. “Nowhere in
the available legislative history does anyone mention creating or failing to correct environmental dangers as the focus
of the bill.” Id. We concluded that “the legislative history is consistent with” the view of the statutes that we drew from
their text and context and held that “a person withholds necessary and adequate physical care from a dependent person
when the person keeps back from the dependent person those
21
Although Senator Carson only mentioned “intentional” conduct when he described the first-degree criminal mistreatment bill on the Senate floor, the bill as enacted applies to conduct engaged in intentionally or knowingly. ORS 163.205(1). 442 State v. Amador-Hernandez
physical services and attention that are necessary to provide
for the dependent person’s bodily needs.” Id. at 666-67.
By contrast with the safety risks at issue in BakerKrofft, this case involves the withholding of food needed by
defendant’s dependent children. Nowhere in the legislative
history of the criminal mistreatment statutes does anyone
suggest that withholding food from a dependent child was
not intended to be covered by the legislation if that conduct
would also be prohibited by the existing child neglect or
criminal nonsupport statutes. To the contrary, we noted in
Baker-Krofft that the criminal mistreatment statutes were
intended to cover “the failure to provide essentials, such as
food, from dependent persons.” Id. at 666.
In summary, we conclude from the text, context, and
legislative history of the criminal mistreatment statutes, as
interpreted in Baker-Krofft, that a defendant withholds necessary and adequate food, physical care, or medical attention from a dependent person in violation of ORS 163.205(1),
when the defendant keeps back from the dependent person
food, physical care, or medical attention that the defendant
is able to access and provide and that the dependent person
needs to provide for their bodily needs. To constitute criminal mistreatment, the withholding of food, physical care,
or medical attention need not be purposefully “cruel,” but
it must cause the dependent person serious pain, injury, or
illness. Withholding food from a dependent child to such an
extent that it causes severe and chronic malnutrition would
certainly meet that standard.
We are not persuaded that the legislature intended
to exclude from prosecution for criminal mistreatment a person who could also be prosecuted for child neglect or criminal nonsupport for the same conduct. But we agree with the
parties that a person cannot be convicted of criminal mistreatment if the person does not have the ability to access
and provide the food, physical care, or medical attention that is needed to provide for the dependent person’s bodily needs.
And a person can be convicted of criminal mistreatment only
if the person acted with the requisite culpable mental state
when they withheld necessary and adequate food, physical
care, or medical attention from a dependent person.
Cite as 375 Or 418 (2026) 443
We turn to whether the evidence in this case was
sufficient to support the trial court’s finding that defendant knowingly withheld necessary and adequate food and dental
care from his dependent children.
B. The Sufficiency of the Evidence of Criminal Mistreatment
in this Case
Defendant acknowledges that the record contains
evidence that the girls’ severe malnutrition and dental problems would not have occurred without years of neglect, and
that such evidence may have been sufficient to establish
that defendant had failed to provide food and care for purposes of ORS 163.555, the criminal nonsupport statute. But
defendant points out that the defendant did, at times, provide food for the children, they had access to free lunches at school, and the family was on food stamps and occasionally
obtained food from food banks. Defendant argues that there
was no evidence that he ever prevented the girls from eating or that he ever “held back” food as a punishment. And
defendant points out that, on one occasion, when one of the
children developed a severe toothache, defendant took her to
the dentist, who pulled the tooth.
From that evidence, defendant concludes that the
record does not permit an inference that defendant “kept
back” food or dental care that defendant was able to access
and provide. Alternatively, defendant argues that the family’s “food insecurity” and the condition of the children did not constitute the type of “extreme deprivation” of food that the
statute was designed to prevent. Defendant acknowledges
that the evidence of financial instability and irresponsibility, and the resulting concerns about the long-term health
and safety of the children, supported a finding of neglect
and justified DHS taking protective custody of the children,
but defendant argues that the evidence did not support a
finding that defendant engaged in any specific conduct that
resulted in the type of severe deprivation required for firstdegree criminal mistreatment.
We disagree.
We begin with the sufficiency of the evidence that
defendant withheld necessary and adequate food from his
444 State v. Amador-Hernandez
children. We have already determined that the statute did
not require the state to prove that defendant “kept back” food to punish the children or otherwise acted for the specific purpose of cruelly depriving them of food. And we have determined that failing to provide food to such an extent that,
over time, it caused severe chronic malnutrition is enough to
establish that defendant withheld necessary and adequate
food from his children, if defendant was able to access and
provide food and knowingly failed to do so.22 The fact that
defendant provided some food to the children on occasion
does not preclude a finding that he failed to provide adequate food, as evidenced by the girls’ severe malnutrition, nor does it compel a finding that he was incapable of providing more.
We agree with the Court of Appeals that there is
sufficient evidence in the record to support a conclusion that defendant was able to access and provide food; that is, “this is not a case of a parent who was simply unable to afford basic
necessities.” Amador-Hernandez, 338 Or App at 482. JC and
AC both testified that defendant and his wife had money to
go out on weekends, spending whatever money defendant
had earned on alcohol, gambling, and other items that they
consumed or wanted for themselves instead of buying food
for their children. JC and AC’s testimony supports the conclusion that defendant was able to access food and provide
it to his daughters but did not because he prioritized discretionary spending for himself and his wife. The evidence
also shows that defendant had access to food stamps and
food banks, and that the girls received free lunches at school when they attended. But the evidence that their frequent
absences kept them from getting food at school and the fact
that both girls developed severe malnutrition that took several years to set in supports the inference that defendant
did not use those available resources to provide necessary
and adequate food for the children.23
22
As we noted earlier, Dr. Bishop-Perdue testified that both girls suffered from chronic malnutrition resulting from years of neglect, and that their severe malnutrition was obvious from their physical appearance. The school counselor, Nedda-Smith, testified that both girls had complained about not getting enough food to eat at home. Defendant’s stepdaughters, JC and AC, confirmed in their testimony that G and T often did not have enough food to eat.
23
In concluding that withholding food to such an extent that it causes severe malnutrition can amount to criminal mistreatment, we do not mean to suggest Cite as 375 Or 418 (2026) 445
With respect to dental care, the fact that defendant
took a child to the dentist on one occasion does not preclude
a finding that he failed to provide necessary and adequate
dental care.24 There is evidence in the record that both
girls suffered from severe dental decay, but the evidence
as to the severity of their dental problems was different.25
Bishop-Perdue testified that G had multiple visible cavities,
abscesses, and missing teeth, which made it painful for her
to eat and made her vulnerable to “whole body infections.”
Nedda-Smith confirmed that G’s dental problems made it
difficult for her to eat. Thus, the evidence was sufficient to support a finding that defendant withheld care for dental
problems that caused G serious physical pain, interfered
with her ability to eat, and could have led to additional
pain and infections in the future. We conclude that, as to
G, the evidence is sufficient to meet the standard for withholding necessary and adequate dental care that we have
established.
We reach the opposite conclusion regarding T.
Although there was evidence establishing that she had significant dental decay and occasionally had toothaches, there
was no evidence that T’s dental problems made it painful for
her to eat or made her susceptible to illness or infections.
Nor was there any evidence of the severity or duration of
T’s toothaches. Thus, the evidence regarding T’s dental
problems was comparable to the evidence that the Court of
Appeals had found to be insufficient in Drown, 245 Or App
at 464, to constitute criminal mistreatment based on a parent’s failure to provide dental care.
that withholding food on one occasion, or even multiple occasions, will constitute criminal mistreatment. Parents might send a child to bed without dinner, for example, without being exposed to liability for criminal mistreatment. But withholding food that, over time, causes a child to suffer from severe and chronic malnutrition is enough to constitute criminal mistreatment.
24
Again, a parent’s failure to address a child’s dental needs on one or more occasions may not amount to criminal mistreatment. But a knowing prolonged failure to address obvious and severe dental problems that cause significant pain, interfere with a child’s ability to eat, and make the child more susceptible to infections or other illnesses can be sufficient to constitute criminal mistreatment.
25
As noted previously, Dr. Bishop-Perdue testified that both girls suffered from “significant dental decay,” and JC testified that the girls did not go to the dentist and that both girls had “a lot” of toothaches. AC testified that the girls were not taught to brush their teeth.
446 State v. Amador-Hernandez
That conclusion does not change the disposition of
this case. Defendant was charged with one count of firstdegree criminal mistreatment regarding T in violation of
ORS 163.205(1). That statute makes it a crime to knowingly withhold necessary and adequate “food, physical care
or medical attention” from a dependent child. Although the
indictment alleged that defendant had knowingly withheld
“food, physical care and medical attention” from T, proof
that defendant knowingly withheld any one of the three categories listed in the statute—food, physical care, or medical
attention—is sufficient to support a conviction. See State v.
Soasey, 237 Or 167, 171, 390 P2d 190 (1964) (holding that
where “[t]he statute is in the disjunctive” and the “indictment is in the conjunctive * * *, [p]roof of any one of the acts charged was sufficient to make out the offense”); State v.
White, 48 Or 416, 421, 87 P 137 (1906) (“This court has
repeatedly held that where a statute makes it a crime to
do either of several acts stated disjunctively therein, all of such acts may be embraced in one count, using the conjunction ‘and’ where ‘or’ occurs in the statute.”) Thus, evidence
that defendant knowingly withheld necessary and adequate
food from T is sufficient to prove the offense charged in the
indictment, even though there is insufficient evidence to
support a finding that he withheld necessary and adequate
dental care from T.
The record also supports the conclusion that the
defendant acted knowingly in withholding necessary and
adequate food from both girls, and necessary and adequate
dental care from G. The girls’ severe malnutrition and G’s
severe dental problems were obvious, which supports a finding that defendant acted knowingly, i.e., with a conscious
awareness that the girls were not getting necessary and adequate food, and that G was not getting necessary and adequate dental care.26 There was evidence in the record that
26
The fact that G’s dental problems were bad enough that a school counselor noticed it is like the child’s obvious vision problem that the Court of Appeals addressed in Drown. There, the court had concluded that the evidence supported a finding that the defendant had knowingly withheld necessary and adequate care to address that vision problem. 245 Or App at 461-62. Here, G’s dental problems were obvious, and the fact that the family qualified for dental coverage under the Oregon Health Plan permits a finding that defendant had the ability to access and provide for G’s dental care and knowingly did not do so. Cite as 375 Or 418 (2026) 447
defendant chose to spend money on nonessentials instead
of using his resources to provide food and dental care for
his children. The record also supports the inference that
defendant neglected the girls’ personal hygiene, did not fully access available food resources or address the girls’ poor
school attendance, and did not use available Oregon Health
Plan coverage to address G’s dental needs. That evidence,
considered in its entirety, permits the trial court’s inference that defendant knew he had the ability to provide the necessary food—and to address G’s dental problems—and acted
knowingly when he, nevertheless, did not provide the girls
with enough food to prevent severe and chronic malnutrition, and did nothing to address G’s severe dental problems.
We conclude that there is sufficient evidence in this
record to support the trial court’s conclusion that defendant
knowingly withheld necessary and adequate food from G
and T, and that he knowingly withheld necessary and adequate dental care from G.
III. CONCLUSION
As we have explained, and consistent with our prior
interpretation of that statute in Baker-Krofft, a person “withholds necessary and adequate food, physical care or medical
attention” in violation of the first-degree criminal mistreatment statute, ORS 163.205(1), when the person “keeps back”
food, physical care, or medical attention that is necessary
to provide for a dependent person’s bodily needs, and the
person is able to access and provide the requisite food, physical care, or medical attention. As so interpreted, the statute does not “criminalize poverty,” as defendant claims, because
a person cannot be convicted of criminal mistreatment if the
person does not have the ability to access and provide the
food and care that is “necessary and adequate” for a dependent person.
Because the state has the burden of proving, beyond
a reasonable doubt, that a person charged with criminal
mistreatment has withheld necessary and adequate food,
physical care, or medical attention from a dependent person,
if the state does not prove that a defendant had the ability
to access and provide necessary and adequate food and care
448 State v. Amador-Hernandez
to a dependent child, that defendant cannot be convicted of
criminal mistreatment. But that is not this case.
The evidence in this case was sufficient to support
a finding that defendant could have provided necessary and
adequate food and dental care to his young daughters. He
knowingly chose not to do so, causing both girls to be chronically and severely malnourished and causing G to suffer
from severe dental problems that made it difficult for her to
eat, exposing her to infections and illness. That is enough to support a finding that defendant knowingly withheld necessary and adequate food from both girls, and dental care
from G, in violation of ORS 163.205(1). Accordingly, there
was sufficient evidence in this record to support the trial
court’s decision to convict defendant of two counts of firstdegree criminal mistreatment.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.