State v. Prose ( 2020 )

167
Argued and submitted November 12, reversed and remanded December 23,
2020, petition for review denied March 18, 2021 (367 Or 709)
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAKOTA MARIE PROSE,
Defendant-Appellant.
Washington County Circuit Court
18CR06296; A170252
478 P3d 606
Theodore E. Sims, Judge.
Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed and remanded.
168 State v. Prose
PER CURIAM
Defendant appeals from a judgment of conviction
for first-degree criminal mistreatment, ORS 163.205, for
withholding necessary and adequate care for her three-
month-old son, L. The state’s case was based on evidence
that defendant and her codefendant, Eisenbeisz (L’s father),
had gone on a methamphetamine binge while L was in their
apartment. The binge ended when Eisenbeisz overdosed and
required hospitalization, which prompted a Department of
Human Services investigation that revealed methamphet-
amine in L’s system.
In her first assignment of error, defendant argues
that the state’s evidence was legally insufficient to establish
the type of risk to L that is required under ORS 163.205.
Having considered the record in light of our cases constru-
ing that statute, including State v. Burciaga, 263 Or App
440, 328 P3d 782, adh’d to on recons, 264 Or App 506, 333
P3d 1098, rev den, 356 Or 575 (2014), we reject that assign-
ment of error without additional discussion. In her remain-
ing assignments, defendant contends that the trial court
erred by admitting a pediatrician’s testimony about the
results of L’s urine test. The state concedes that, although
the pediatrician was entitled to rely on the results to form
her opinion, her testimony should not have been admitted
as substantive evidence of the test results over defendant’s
hearsay objection. The state further concedes that the evi-
dential error was prejudicial and requires us to reverse and
remand defendant’s conviction. We agree with and accept
the state’s concession. See State v. Knepper, 62 Or App 623,
626, 661 P2d 560 (1983) (“OEC 703 does not authorize an
expert witness to tell the jury the inadmissible details of the
basis of his opinion.”).
Reversed and remanded.