State v. Sparks

Under ORS 163.545, certain offenses concerning the welfare of children apply only to parents or persons in loco parentis to children. The child-neglect statute similarly applies to such individuals; it also applies, to "temporary custodians," those who are not "lawfully charged with" the care, custody, or support of a child but who nevertheless have "control" of the child.

Defendant appealed a judgment of conviction for multiple drug offenses and two counts of first-degree child neglect stemming from an illegal marijuana-growing operation that he conducted at his residence. Defendant was observed by police loading numerous bags of potting soil into a rented van. Police followed Defendant to a residence and began surveillance on that residence. A subpoena was used to procure the power records from the residence which indicated an unusually high level of use. Based on this and other evidence the police requested and were granted a search warrant for the premises and the persons at the residence to search for illegal marijuana manufacturing and distribution enterprise. Search of the premises revealed a large stock of marijuana, material for shipping and selling marijuana, and a vial of LSD. Defendant's two children resided in the home and there were no locks on the doors or closets where the drug paraphernalia was stored. Before trial, Defendant moved to suppress the electric records, which the court denied. Defendant offered evidence to show that he had no control over the children and, therefore, could not have the "custody or control" requisite for the child neglect charge. The jury returned with a guilty verdict. On appeal, the Court held the State did not need a warrant to acquire third-party information about power consumption, but that evidence did not support the convictions for child neglect or possession of LSD. Convictions for first-degree child neglect reversed and remanded; conviction for unlawful possession of LSD reversed; remanded for resentencing; otherwise affirmed.