State v. Rossiter , 300 Or. App. 405 ( 2019 )

405
Argued and submitted March 16, 2017, affirmed November 6, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
TRAVIS LEE ROSSITER,
Defendant-Appellant.
Linn County Circuit Court
13CR06278; A158973
454 P3d 1
In this companion case to State v. Rossiter, 300 Or App 44, 453 P3d 562
(2019), defendant was convicted of manslaughter in the first degree for not seek-
ing medical care for his 12-year-old daughter, who died from untreated ketoaci-
dosis. On appeal, defendant raises eight assignments of error, arguing that the
trial court erred by (1) denying defendant’s motion to disclose grand jury testi-
mony; (2) permitting the state to introduce evidence that, as part of his religion,
he avoided traditional medical care; (3) denying his motions to dismiss or sup-
press evidence from the state’s experts based on an audio recording of the victim’s
autopsy being destroyed as a standard business practice; (4) denying defendant’s
motion for judgment of acquittal; (5) imposing the 120-month statutorily man-
dated sentence that, in defendant’s view, is unconstitutionally disproportionate
under Article I, section 16, of the Oregon Constitution; (6) allowing the state’s
expert witnesses to opine on the standard of care applicable to a person in defen-
dant’s position; (7) instructing the jury that it could return a nonunanimous ver-
dict; and (8) accepting that nonunanimous verdict. Held: The trial court did not
err in denying defendant’s motions, imposing the statutorily mandated sentence,
or instructing the jury on, and accepting, a nonunanimous verdict. Defendant’s
sixth assignment of error regarding expert testimony was not preserved and does
not qualify as “plain” under ORAP 5.45.
Affirmed.
Daniel R. Murphy, Judge.
Andrew D. Coit argued the cause and filed the supple-
mental briefs for appellant. Also on the opening brief was
Cohen & Coit, P.C.
Cecil A. Reniche-Smith, Assistant Attorney General,
argued the cause for respondent. Also on the answering brief
were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solictor General. On the supplemental brief were
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General.
406 State v. Rossiter
Before Ortega, Presiding Judge, and Lagesen, Judge, and
Wilson, Senior Judge.
LAGESEN, J.
Affirmed.
Ortega, P. J., concurring in part, dissenting in part.
Cite as 300 Or App 405 (2019) 407
LAGESEN, J.
This case is a companion to State v. Rossiter, 300 Or
App 44, 453 P3d 562 (2019). As we recounted there, defen-
dant and his wife were charged with manslaughter in the
first degree for not seeking medical care for their 12-year-
old daughter, S, who died from untreated ketoacidosis.1
Following a joint trial, a jury found them both guilty. In
Rossiter, we addressed defendant’s wife’s appeal of her con-
viction; this is defendant’s appeal of his judgment of con-
viction for first-degree manslaughter. On appeal, he raises
a total of eight assignments of error, three of which were
raised in two separate supplemental briefs.
In all, defendant asserts that the trial court erred
in the following respects: (1) by denying defendant’s motion
to disclose grand jury testimony; (2) by permitting the state,
over defendant’s OEC 403 and state constitutional objec-
tions, to introduce evidence that, as part of his religion,
defendant avoided traditional medical care and looked to
God to heal the body; (3) by denying defendant’s motion to
dismiss or, alternatively, defendant’s motion to suppress
evidence from the state’s experts, Dr. Nicol and Dr. Nelson,
based on the fact that Nelson, in the course of standard busi-
ness practices, destroyed the audio recording of his autopsy
of the victim; (4) by denying defendant’s motion for judg-
ment of acquittal; (5) by imposing the 120-month statutorily
mandated sentence that, in defendant’s view, is unconstitu-
tionally disproportionate as applied to him, in violation of
Article I, section 16, of the Oregon Constitution; (6) by per-
mitting the state’s three expert witnesses to opine directly
on whether defendant’s conduct was either a negligent or
gross deviation from the standard of care applicable to a
parent or caregiver in defendant’s position; (7) by instruct-
ing the jury that it could return a nonunanimous verdict;
and (8) by accepting a nonunanimous verdict on the charge
of first-degree manslaughter. For the reasons that follow,
we conclude that none of those contentions warrant reversal
and, accordingly, affirm.
1
Defendant and his wife were also each charged with second-degree man-
slaughter, a charge on which the jury returned a guilty verdict. That verdict
merged with the verdict on the first-degree manslaughter charge.
408 State v. Rossiter
The facts underlying defendant’s prosecution are
set forth in our opinion resolving defendant’s wife’s appeal.
See Rossiter, 300 Or App at 46. We therefore do not recount
them here and turn directly to the task of resolving defen-
dant’s assignments of error.
Grand jury testimony. In his first assignment of
error, defendant challenges the trial court’s denial of his
motion in limine seeking disclosure of “all records of the
testimony of witnesses before the Linn County Grand Jury
which voted on the indictment in this case.” In his mem-
orandum supporting the motion, defendant narrowed his
request, explaining that he was “seeking the grand jury
testimony of all the witnesses the State intends to intro-
duce at trial regarding the religious belief or practice of the
Defendant.” On appeal, defendant contends that his “statu-
tory and federal constitutional rights were violated because
the defendant presented a sufficient rationale to the trial
court for the court to order the disclosure of Grand Jury
records relevant to the religious practices or belief of the
defendant.”2
We disagree. As for defendant’s statutory claim, the
state correctly points out that ORS 135.855(1)(c) precludes
pretrial discovery of “[t]ranscripts, recordings or mem-
oranda of testimony of witnesses before the grand jury,
except transcripts or recordings of statements made by the
defendant.” ORS 135.855(1)(c). Defendant has identified no
other statutory authority to support his pretrial request.3 As
for his constitutional claim, which is predicated on Brady v.
Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963),
defendant has not made even the threshold showing neces-
sary to require in camera review of the grand jury records,
2
Defendant does not contend that the trial court erred by failing to conduct
an in camera review of the grand jury records to determine whether those records
contained material to which defendant would be entitled. See State v. Covington,
291 Or App 514, 422 P3d 276, rev den, 363 Or 727 (2018). His contention is simply
that he was entitled to the records.
3
ORS 132.220(1) authorizes a court to order the disclosure of grand jury tes-
timony of a witness “for the purpose of ascertaining whether it is consistent with
that given by the witness before the court,” but does not, by its terms, authorize
the disclosure of a witness’s grand jury testimony before the witness has testified
at trial (or at another proceeding subsequent to the grand jury proceeding).
Cite as 300 Or App 405 (2019) 409
let alone require disclosure. As we explained in State v.
Covington, 291 Or App 514, 517, 422 P3d 276, rev den, 363
Or 727 (2018), a defendant requesting a trial court to con-
duct an in camera review of grand jury records for Brady
material must “make a threshold showing that it is reason-
able to believe that the records for which review is sought
contain evidence of sufficient import to the defendant’s guilt
to require disclosure of the evidence to the defendant.” Here,
defendant did not supply any explanation to the trial court
that would make it reasonable to think that any grand jury
witness had testified to the grand jury about defendant’s
religious beliefs in a way that was exculpatory. Although
defendant urged the trial court to conclude that the grand
jury testimony might be useful to impeach those trial wit-
nesses who testified before the grand jury, defendant identi-
fied no facts that would make it reasonable to think that any
particular witness would alter his or her testimony between
the grand jury proceedings and trial. Defendant therefore
has shown no error in the trial court’s denial of his pretrial
motion for discovery of grand jury testimony.
Evidence of religious beliefs. Defendant next assigns
error to the trial court’s admission of evidence of his religious
beliefs over his objections that the admission of the evidence
was contrary to OEC 403, and also contrary to his rights
under the religion provisions of the Oregon Constitution,
Article I, sections 2 and 3.4
Defendant’s OEC 403 arguments parallel those that
we rejected in our earlier decision in Rossiter and we reject
them for the same reasons. See Rossiter, 300 Or App at 58-60.
As for defendant’s arguments under Article I, sec-
tions 2 and 3, they are foreclosed by State v. Brumwell, 350
Or 93, 249 P3d 965 (2011), cert den, 565 US 1124 (2012).
In Brumwell, the Supreme Court held that evidence of a
4
Article I, section 2, provides:
“All men shall be secure in the Natural right, to worship Almighty God
according to the dictates of their own consciences.”
Article I, section 3, provides:
“No law shall in any case whatever control the free exercise, and enjoy-
ment of religious opinions, or interfere with the rights of conscience.”
410 State v. Rossiter
criminal defendant’s religious beliefs, when relevant to prove
motive, is admissible and does not violate the defendant’s
rights under Article I, section 2 or section 3, at least where
the defendant does not contest the trial court’s authority
to admit evidence of motive and does not contend that “we
should craft an exception for religiously motivated crimes
from the neutral rule that evidence of a defendant’s motives
for committing crimes is generally relevant and admissible.”
Id. at 108-09; see also State v. Hickman, 358 Or 1, 25, 358 P3d
987 (2015) (“As we stated in Brumwell and reiterate in this
case, parties who present an as-applied challenge to a gen-
erally applicable and neutral law must make ‘an individual
claim to exemption [from that law] on religious grounds.’ ”
(Quoting Brumwell, 350 Or at 108 (brackets in Hickman.)).
Here, as in Brumwell, defendant does not argue that
the trial court lacked authority to admit evidence of motive
and also has not claimed that he is entitled to a religious
exemption from “the neutral rule that evidence of a defen-
dant’s motives for committing crimes is generally relevant.”
350 Or at 109. Instead, his argument, as we understand it,
is that admitting the evidence created the unfairly prejudi-
cial risk that the jury convicted him based on its evaluation
of whether his religious beliefs were reasonable. That argu-
ment does not explain why defendant might be entitled to
an individual religious exemption from the otherwise appli-
cable neutral rules of evidence. Accordingly, defendant has
not demonstrated that the court’s admission of evidence of
his religious beliefs violated his rights under the religion
provisions of the Oregon Constitution.
Destruction of autopsy report. As a matter of stan-
dard practice,5 Nelson, who conducted S’s autopsy, destroyed
the audio recording of his observations during the autopsy
after he completed his written report. Defendant moved to
dismiss all the charges based on the destruction of the audio.
Alternatively, he requested that the trial court suppress tes-
timony by Nelson and another of the state’s experts, Nicol.
The court denied the motion in all respects. On appeal,
5
The trial court found as a matter of fact that the destruction of the tape was
part of the “standard operating practice in the profession.” Defendant does not
challenge that factual finding.
Cite as 300 Or App 405 (2019) 411
defendant assigns error to the denial of his motion. Although
defendant acknowledges that the destruction of the audio
recording was not the product of bad faith, he contends
that he adequately demonstrated that the destroyed tape
contained favorable evidence that would not be reasonably
available to him by other means, entitling him to some form
of remedy—dismissal or suppression—under State v. Zinsli,
156 Or App 245, 966 P2d 1200, rev den, 328 Or 194 (1998).
But, under Zinsli, “the defendant must show that
the claim of favorableness is genuine, not speculation.” 156
Or App at 252. Although defendant points to the fact that
there are some inconsistencies between the written autopsy
report and some of the photographs of S’s body, defendant
does not explain how those inconsistencies provide a non-
speculative basis for concluding that the audio recording con-
tained evidence favorable to the defense. Rather, defendant
simply argues that the inconsistencies suggest that Nelson’s
“observations were subject to reasonable alternative inter-
pretation,” making it critical for the defense to have access
to the original audio recording. Although it is understand-
able why the defense would want access to the audio record-
ing to conduct its own analysis, that does not equate to a
nonspeculative showing that the audio contained favorable
information. Defendant again has not demonstrated error
in the trial court’s challenged ruling.
Motion for judgment of acquittal. In the fourth
assignment of error, defendant contends that the trial court
erred in denying his motion for judgment of acquittal on
the counts of first-degree manslaughter and second-degree
manslaughter. Specifically, he contends that the evidence
was insufficient to support a finding that he acted (or failed
to act) with the requisite mental state for each of those
offenses: recklessness for first-degree manslaughter, ORS
163.118(1)(c)(B), and criminal negligence for second-degree
manslaughter, ORS 163.125(1)(c)(B).
On review of a denial of a motion for judgment of
acquittal, we view the record in the light most favorable
to the state and review to determine whether a rational
trier of fact could have made the required findings beyond
a reasonable doubt. State v. Miller, 289 Or App 353, 357,
412 State v. Rossiter
413 P3d 999 (2017). Considering the record under that stan-
dard, we conclude that the evidence was sufficient to permit
a rational factfinder to find that defendant had the mental
state required for each charge. Defendant was not entitled
to entry of a judgment of acquittal.
Proportionality of sentence under Article I, section 16.
In his fifth assignment of error, defendant asserts that the
trial court erred in rejecting his proportionality challenge to
the statutory 120-month sentence applicable to first-degree
manslaughter. We reject that contention for the same reason
that we did in Rossiter. Rossiter, 300 Or App at 60-63.
Testimony by experts. In his first supplemental
assignment of error, defendant contends that the “trial
court erred by allowing the state to introduce inadmissi-
ble expert opinion evidence regarding defendant’s culpable
mental state.” That assignment of error, which is unpre-
served, is the same claim of error raised in the first four
assignments of error in Rossiter. See Rossiter, 300 Or App
at 52. There, over a dissent, we reasoned that the alleged
errors, which defendant’s wife also failed to preserve, did
not qualify as “plain” under ORAP 5.45, so as to allow for
plain-error review. Rossiter, 300 Or App at 54-58; see also
id. at 66-68 (Ortega, P. J., dissenting). We reject defendant’s
first supplemental assignment of error for the same reason:
It is unpreserved and does not meet the requirements for
plain-error review.
Nonunanimous jury verdict issues. In his second and
third supplemental assignments of error, defendant con-
tends that the trial court plainly erred when it instructed
the jury that it could return a nonunanimous verdict and
also plainly erred when it received a nonunanimous verdict
on the first-degree manslaughter charge. Defendant con-
tends that the Sixth and Fourteenth Amendments to the
United States Constitution require unanimous jury ver-
dicts. We reject those arguments on the merits without fur-
ther discussion. See State v. Gerig, 297 Or App 884, 886 n 2,
444 P3d 1145 (2019) (taking that approach).
Affirmed.
Cite as 300 Or App 405 (2019) 413
ORTEGA, P. J., concurring in part, dissenting in
part.
For the reasons I expressed in State v. Rossiter, 300
Or App 44, 453 P3d 562 (2019) (Ortega, P. J., dissenting), I
again agree with the majority that defendant’s challenge to
the admission of the expert testimony is not preserved, but
conclude that the trial court’s admission of the testimony of
experts Nelson and Nicol was plain error, and I would exer-
cise discretion to correct that error. I agree with the major-
ity opinion in all other respects, but would reverse on that
basis.
Accordingly, on that ground only, I dissent.