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A conviction for criminal mistreatment requires the state to show a defendant caused a “physical injury” to a “dependent person.” ORS 163.205(1)(b). A “physical injury” includes an “impairment of physical condition.” Prevention of breathing qualifies as a “physical injury,” but strangulation does not necessarily give rise to “physical injury” in every case. State v. Merrill, 303 Or App 107, 121, 463 P3d 540 (2020), adh’d to as modified on recons, 309 Or App 68, 481 P3d 441, rev den, 368 Or 402 (2021).

Defendant appealed her conviction of first-degree criminal mistreatment.  The trial court also convicted Defendant of strangulation.  On appeal, Defendant argued that the evidence—bruises on her minor son’s neck—was insufficient to support “a finding that she caused ‘physical injury’ to her son.”  In response, the State asserted that the evidence was sufficient to support the criminal mistreatment conviction because it was sufficient to support the conviction for strangulation.  A conviction for criminal mistreatment requires the state to show a defendant caused a “physical injury” to a “dependent person.”  ORS 163.205(1)(b).  A “physical injury” includes an “impairment of physical condition.”  Prevention of breathing qualifies as a “physical injury,” but strangulation does not necessarily give rise to “physical injury” in every case.  State v. Merrill, 303 Or App 107, 121, 463 P3d 540 (2020), adh’d to as modified on recons, 309 Or App 68, 481 P3d 441, rev den, 368 Or 402 (2021).  The Court found that the evidence in this case required too much guesswork to conclude that Defendant’s conduct reduced her son’s ability to breathe.  Thus, the Court concluded that the evidence was “insufficient to support the physical injury element of the crime of first-degree criminal mistreatment.”  Criminal mistreatment conviction reversed; otherwise affirmed.