dissenting.
I do not agree with Warren, J., or Rossman, J., that evidence that defendant’s children died as a result of a fire during defendant’s absence is relevant. Because its admission was prejudicial, the conviction must be reversed. However, I agree with Rossman, J., that evidence of the circumstances of, and reasons for, defendant’s leaving the children alone is relevant. With that evidence, there is sufficient admissible evidence to permit a reasonable juror to find defendant guilty of child neglect. Accordingly, I would reverse and remand for a new trial.
Reading ORS 163.545 and 161.085(10) together, defendant is guilty of child neglect if she failed to be aware of a substantial and unjustifiable risk that leaving her children unattended at home for such period of time as may be likely to endanger the health or welfare of the children. The focus is on the circumstances at the time and place the mother left the children unattended rather than on the result that followed. In evaluating defendant’s recognition of, or failure to recognize, a substantial and unjustifiable risk, it seems to me to be relevant that defendant left her home at 9:30 p.m. to attend a party at a local tavern, with no apparent scheduled return time. Her reason for leaving the children, that is, to attend a Halloween party at a tavern where alcoholic beverages would be consumed, is relevant to the justifiability of the risk. Her lack of a planned time for return from that party is relevant to the substantiality of the risk — she might be gone one hour or she might be gone all night. In fact, she was gone four and one-half hours.
Although that evidence may not be compelling, it is at least relevant in determining the circumstances that existed at the time defendant left the children unattended and in determining whether those circumstances were likely to endanger the health or welfare of the children. A reasonable juror could infer from that evidence that a reasonable person would have recognized a substantial and unjustifiable risk and would have acted differently. Evidence that defendant’s eight-year-old child was proficient in the use of a telephone and could call neighbors for help, if required, does not preclude a reasonable juror’s so inferring, because that evidence need not be believed, and even if believed, might not be considered *701sufficient to outweigh the substantiality of the risk in leaving an eight-year-old child with a twenty-two-month-old child for an indefinite period of time at night to go to a party at a tavern.
Accordingly, I would reverse and remand for a new trial.
Warden, J., joins in this dissent.