State v. Horn-Garcia ( 2022 )

100
Argued and submitted February 22, affirmed June 8, petition for review denied
October 20, 2022 (370 Or 404)
STATE OF OREGON,
Plaintiff-Respondent,
v.
SACORA HORN-GARCIA,
aka Sacora Garcia, aka Sacora Horn,
Defendant-Appellant.
Deschutes County Circuit Court
17CR22080; A172863
513 P3d 47
Defendant was convicted of murder by abuse and first-degree criminal mis-
treatment in connection with the starvation death of her five-year-old stepdaugh-
ter, M. On appeal, defendant contends that the trial court committed five errors:
(1) overruling a speculation objection to certain testimony by the emergency room
physician who treated M on the day that she died; (2) denying defendant’s motion
for judgment of acquittal on the murder-by-abuse charge; (3) giving a curative
instruction to the jury that murder by abuse is not a crime that is eligible for
the death penalty; (4) declining to give defendant’s requested jury instruction
on “extreme indifference to the value of human life,” as relevant to the murder-
by-abuse charge; and (5) instructing the jury on nonunanimous guilty verdicts.
Held: The trial court did not err in allowing the testimony by the emergency room
physician, because the testimony was not speculative and did not imply what
defendant claims that it did. The trial court did not err in denying defendant’s
motion for judgment of acquittal, because, viewed in the light most favorable to
the state, the evidence was legally sufficient to support a conviction. The trial
court did not err in giving a curative instruction on the death penalty, because
the instruction was appropriate in light of statements made by defense coun-
sel and jurors during voir dire, the unique nature of the death penalty, and the
jury not being death-penalty qualified. The trial court did not err in declining
to give defendant’s “extreme indifference” instruction to the jury, because the
instructions given accurately stated the law and adequately covered the points
that defendant wanted made. Finally, the trial court erred in instructing the jury
that it could find defendant guilty of criminal mistreatment by nonunanimous
verdict, but that error was harmless because the jury returned unanimous guilty
verdicts on those charges.
Affirmed.
Beth M. Bagley, Judge.
Harrison Latto argued the cause and filed the reply brief
for appellant. On the opening brief was Daniel J. Casey.
Cite as 320 Or App 100 (2022) 101
Rolf C. Moan, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Kistler, Senior Judge.
AOYAGI, J.
Affirmed.
102 State v. Horn-Garcia
AOYAGI, J.
Defendant was convicted of one count of murder
by abuse, ORS 163.115(1)(c)(B) (2015), amended by Or Laws
2019, ch 634, § 28; Or Laws 2019, ch 635, § 4,1 and one count
of first-degree criminal mistreatment, ORS 163.205(1)(a),
after her five-year-old stepdaughter, M, starved to death.
On appeal, she raises five assignments of error. She argues
that the trial court erred by (1) allowing certain testimony
by an emergency room physician; (2) denying her motion
for judgment of acquittal on the murder-by-abuse charge;
(3) instructing the jury that murder by abuse is not a crime
that is eligible for the death penalty; (4) declining to give
her proposed jury instruction on “extreme indifference to
the value of human life”; and (5) instructing the jury on
nonunanimous guilty verdicts.2 For the following reasons,
we affirm.
I. BACKGROUND
This case shares background facts and arises out of
the same circumstances described in State v. Garcia, 320 Or
App 123, 512 P3d 839 (2022).
Defendant was convicted after a 15-day trial, during
which numerous witnesses testified, including defendant and
her codefendant Garcia, and many exhibits were admitted,
including photographs, audio and video recordings, exten-
sive text messages, and medical records. A detailed recita-
tion of the trial evidence would serve little purpose here.
Instead, we provide only a very brief overview for context.
Defendant began dating Garcia in summer 2014. At
that time, defendant was living with her three daughters
from a prior marriage, and Garcia was living with M, his
biological niece who he had adopted as a baby. In September
2014, Garcia and M moved in with defendant and her
daughters. Defendant and Garcia married in December
2014. Defendant was a “stay-at-home mom” and M’s primary
caregiver.
1
Murder by abuse now constitutes second-degree murder, due to a 2019 stat-
utory amendment, but its elements have not changed. See ORS 163.115(1)(c)(B)
(2019).
2
We list defendant’s assignments of error in the order that we address them,
which is slightly different from the order that they are raised in defendant’s brief.
Cite as 320 Or App 100 (2022) 103
The state presented evidence that defendant and
Garcia treated M differently from the other children, includ-
ing withholding food from M as a form of discipline, denying
M access to food, and requiring M to ask to be fed. Text mes-
sages between defendant and Garcia showed that M’s eating
habits and the withholding of food from her were frequent
subjects of discussion. There was evidence that M would try
to get food during the night and otherwise, prompting defen-
dant and Garcia to put an alarm on M’s bedroom door.
M’s weight, which historically had been normal for
her age (and had been on an upward trajectory), began to
drop. In February 2016, at aged four, M weighed a pound
less than she had 10 months earlier. In March 2016, M saw
her pediatrician for a “well child” visit, and she had lost
another pound. The pediatrician was concerned that M was
losing weight and directed defendant to increase her caloric
intake and to bring her back for a follow-up weight check.
At her follow-up weight check in May 2016, M weighed
31.97 pounds, a 2.2-pound weight gain since her last visit,
which confirmed that the issue was inadequate caloric
intake. Defendant was told to continue giving M additional
calories.
The state presented evidence that M was visibly
emaciated during the summer and fall of 2016, including
photographs, and that various people expressed concern
about M’s weight to defendant and Garcia. Although other
children in the household were taken to the doctor during
that period, M was never taken to the doctor again after
May 2016. Meanwhile, defendant and Garcia were expe-
riencing marital problems, and they were also adopting a
baby.
According to defendant and Garcia, M had been
in good health and behaving normally until approximately
December 16, 2016, when M became sick with “flu-like”
symptoms. She was vomiting, shaky, and tired; had a “wet
cough”; was not keeping food or water down; and started
to look like she had sunken cheeks. Neither defendant nor
Garcia sought medical care for M.
On the morning of December 21, defendant and
Garcia exchanged text messages while Garcia was at work.
104 State v. Horn-Garcia
During that exchange, at 8:46 a.m., Garcia asked defendant
whether she would “feel scared taking [M] into urgent care,”
where “most likely they would just swab her nose to see if
she has the flu.” Defendant responded, “I don’t know.” Garcia
responded, “To me urgent care is always less professional
like there doctors are always laid back.” Approximately half-
hour later, at 9:19 a.m., defendant texted, “Alright, I think
she def needs to go in today.” Garcia responded “okay” a few
minutes later. At 10:44 a.m., he added, “Might be good to go
down there with all the kids to show they are healthy.” At
10:47 a.m., defendant texted Garcia that he needed to come
home and they needed to take her in. She then called him
several times, but he did not answer. At 10.53 a.m., defen-
dant texted Garcia that it was an “emergency” and that he
needed to answer.
At 10:58 a.m., defendant called 9-1-1. She reported
that M was unresponsive, almost unconscious, and possibly
not breathing. She further described M as spitting up brown
fluid, having stiff hands, and having open but unresponsive
eyes.
First responders arrived at 11:05 a.m. They were
“shocked” by M’s appearance, perceived her to be “extremely
underweight,” and had never seen a child so underweight.
One first responder described her as looking like a “rack of
bones,” another as “skeletal looking,” and another as “very,
very, very emaciated” with all of her ribs showing. M had
no heartbeat, her body was fairly stiff and cold to the touch,
and her skin was mottled, grayish, and purple. Because
they were told that she had just gone down, and because
she was a child, they tried for 17 minutes to revive her, but
she showed no signs of life. They then took M to the emer-
gency room. The emergency room doctor (Dr. Bouska) testi-
fied that M was already dead when she arrived, including
showing the beginnings of rigor mortis. However, they tried
for an hour and a half to revive her, during which she briefly
regained a faint pulse, although she showed no other signs
of life. M was ultimately declared dead.
At the time of her death, M was five years old and
weighed 24 pounds, which is the size of a typical two- or
three-year old. Given the “emaciated” and “wasted” condition
Cite as 320 Or App 100 (2022) 105
of M’s body, and having ruled out all other possible medi-
cal explanations, the medical examiner concluded that M’s
cause of death was “emaciation,” by which she meant “mal-
nutrition or starvation.” Among other things, M’s autopsy
revealed that M had minimal to no body fat stores and ele-
vated levels of urea nitrogen, indicating that she had been
burning muscle for energy because she was not consuming
carbohydrates from food and had no body fat stores. Her
internal organs also were “profound[ly]” deteriorated in size,
which is something that occurs with long-term starvation,
due to elevated levels of the stress hormone cortisol—and
which is “absolutely not” consistent with an otherwise healthy
individual getting a bad flu, as it takes “months” to occur.
Defendant was charged in connection with M’s
death. The thrust of her defense was that she did not know
that M was not getting enough food, perceived her to be nat-
urally thin and not abnormally so, and did not know that
she was starving to death. After hearing all of the evidence,
the jury found defendant guilty by unanimous verdicts of
murder by abuse and two counts of first-degree criminal
mistreatment. The court merged the criminal-mistreatment
verdicts. Defendant was sentenced to life imprisonment with
a 25-year minimum on the murder conviction and a con-
current 18-month sentence on the criminal-mistreatment
conviction. Defendant appeals, raising five assignments of
error.
II. ANALYSIS
A. Dr. Bouska’s Testimony
As part of the state’s case-in-chief, the jury heard
testimony from Dr. Bouska, the emergency room physician
who treated M on December 21, regarding M’s condition
when she arrived at the hospital and the efforts made to
try to revive her. Most of Bouska’s testimony is not at issue.
However, on redirect examination, Bouska gave one answer
that is the subject of defendant’s first assignment of error.
At the end of redirect, the prosecutor asked, “If this
patient that was on your table December 21st—if she had
arrived 12 hours prior to that time, based on what you saw in
front of you, is there something you could’ve done?” The court
106 State v. Horn-Garcia
overruled a “speculation” objection, which was described
as being based on Bouska having “testified he can’t sort of
reverse-engineer a timeline based on rigor mortis.” The court
overruled the objection and instructed the witness that, if he
could answer the question, he could answer. The prosecutor
repeated the question as, “If [M] had been brought to the hos-
pital sooner, the night before—is there something that you
could have done in the emergency room?” Bouska answered,
“To the best of my knowledge and training, I would say that
the—she would have likely been alive at that time and we
would’ve been able to evaluate for, if there was something
wrong at that time, how to reverse it.”
Defendant contends that the trial court erred in over-
ruling the “speculation” objection. Specifically, she argues
that Bouska’s opinion that M “likely would have been alive”
12 hours earlier was speculative because Bouska admitted
that he was unable to pin down M’s exact time of death,
which was the subject of heavy cross-examination. And she
argues that the rest of Bouska’s answer implied that M’s
condition could have been reversed and her life saved if M
had only been brought in 12 hours earlier, which was both
speculative and inconsistent with Bouska’s other testimony.
Bouska’s testimony that M “would have likely been
alive” on the night of December 20 was not improperly
speculative. It was based on his training and experience as
an emergency room physician, information received from
first responders, and his own observations of M in the emer-
gency room. See OEC 702 (a witness qualified as an expert
by knowledge, skill, experience, training, or education may
give opinion testimony); see also OEC 703 (an expert may
base an opinion or inference on “facts or data” that are “per-
ceived by or made known to the expert at or before the hear-
ing”). When pressed on his opinion that M was already dead
when she arrived at the hospital, Bouska admitted to being
unable to determine M’s exact time of death, and he also
explained in some detail that “death” is a process that can
mean different things and that takes longer than most peo-
ple realize. However, the fact that Bouska was unable to pin
down M’s precise time of death did not mean that his opin-
ion that M was likely alive 12 hours earlier was speculative.
Cite as 320 Or App 100 (2022) 107
Bouska explained both why he could not opine on an exact
time of death and why he believed that M’s death had
occurred within minutes or hours before her arrival at the
hospital, not days.3
As for Bouska’s statement regarding what would
have been done if M had been brought into the emergency
room while she was still alive, we disagree with defendant
that Bouska implied that they would have been able to
reverse M’s condition and save her life if only she had been
brought in 12 hours earlier. Bouska had already testified
on direct and cross regarding his efforts to revive M when
she arrived in the emergency room on December 21, which
included “checking for reversible causes,” such as correct-
able poisoning, trauma, blood loss, or “any possible revers-
ible cause.” No reversible cause was found. In that context,
Bouska’s later statement on redirect—that, if M had been
brought in the night before, when she was still alive, they
“would’ve been able to evaluate for, if there was something
wrong at that time, how to reverse it”—did little more than
indicate that they would have followed the same procedure,
i.e., evaluated M for reversible causes. At most, Bouska’s
answer suggested that it would have been better to evalu-
ate M for reversible causes while she was still alive—rather
than after she had died—but did not imply that such an
evaluation would have been successful in revealing a revers-
ible cause. That is particularly so given Bouska’s prior testi-
mony that, due to her poor general state of health, M “would
not be very resilient[.]” 4
The trial court did not err in overruling the objection.
3
The exact time of M’s death was significant insofar as part of the state’s
theory was that defendant and Garcia had inaccurately reported the events lead-
ing up to M’s death, including her physical condition on the morning of the 9-1-1
call. It would have been beneficial to the defense theory—and detracted from the
prosecution theory—to establish that M died after defendant called 9-1-1, thus
eliminating any possibility that defendant had called 9-1-1 when M was already
dead and lied to cover up the timing.
4
We note that a pediatrician reinforced the same point, testifying that
“there is this point of no return in malnutrition”; that, “[i]f the patient gets too low
in their weight, * * * they’re not going to survive, generally speaking, and [M] was
certainly in that category”; and that, based on a photograph, by December 19,
M’s malnourishment had reached the point that it was “not survivable,” that
she was close to death, and that it was “very dicey” whether she could have been
saved at that point.
108 State v. Horn-Garcia
B. Denial of Motion for Judgment of Acquittal (murder by
abuse)
At the conclusion of the state’s case-in-chief, defen-
dant moved for judgment of acquittal on the charge of mur-
der by abuse. As relevant here, a person commits murder
by abuse “when a person, recklessly under circumstances
manifesting extreme indifference to the value of human life,
causes the death of a child under 14 years of age * * *, and
* * * [t]he person causes the death by neglect or maltreat-
ment.” ORS 163.115(1)(c)(B) (2015). Defendant argues that
the trial court erred in denying her motion, because the evi-
dence was legally insufficient to prove that defendant acted
with “extreme indifference to the value of human life.”
On review of the denial of a motion for judgment of
acquittal, we examine the evidence “in the light most favor-
able to the state to determine whether a rational trier of
fact, accepting reasonable inferences and reasonable credi-
bility choices, could have found the essential element of the
crime beyond a reasonable doubt.” State v. Cunningham, 320
Or 47, 63, 880 P2d 431 (1994). We have reviewed the exten-
sive record in this case. Having done so, we conclude that
the evidence, when viewed in the light most favorable to the
state, was legally sufficient to allow a reasonable juror to
find that defendant acted with extreme indifference to the
value of human life. The trial court did not err in denying
defendant’s motion for judgment of acquittal.
C. Jury Instruction Regarding No Death Penalty
The remaining three assignments of error pertain
to jury instructions.
Murder by abuse is not a crime eligible for the death
penalty. However, during the first and third voir dire panels
for defendant’s trial, defense counsel and prospective jurors
discussed wrongly convicted defendants and the death pen-
alty in a way that led the state to ask for a curative instruc-
tion that this was not a death-penalty case.
During the first voir dire panel—which included
eight people who ended up serving on the jury—defense
Cite as 320 Or App 100 (2022) 109
counsel said, “We hear about like—who’s heard like the
Innocence Project? All these people who have been on
death row that they now find out [they’re] innocent after
the fact.” After a prospective juror said “yeah,” defense
counsel had a fairly lengthy back-and-forth with the pro-
spective jurors about how “that can happen,” during which
defense counsel referred to “a lot of those poor guys that
didn’t have DNA”; listed poor investigation, jumping to
conclusions, economics, and racism as how “that can hap-
pen”; and asked “[h]ow do we keep that from happening”
that “we have all these people sort of coming off of death
row, you know, that were—the highest punishment possible,
and they found out they’re innocent,” but “juries convicted
them.”
A shorter but similar exchange occurred in the
third voir dire panel, which included two people who were
chosen as alternates. Defense counsel asked if “inno-
cent people sometimes get convicte d.” A prospective juror
answered yes. Defense counsel asked how that happens and
how to stop it. The prospective juror cited “a number of cases
in recent years where people have been exonerated” by new
DNA evidence. Defense counsel asked about “all those poor
suckers that didn’t have DNA evidence” and “[d]o you think
there are people out there?” The prospective juror answered
that “there are probably people who have been wrongly exe-
cuted.” Defense counsel then asked a different prospective
juror how to “stop that from happening.” That prospective
juror answered, “Well, we stop the death penalty.” Defense
counsel clarified, “Not executed, but just convicted. How do
we stop that from happening?” A prospective jury answered,
“Be very aware of what true evidence is and make sure there
is no doubt whatsoever.”
In proposing jury instructions, the state requested
an instruction that murder by abuse is not a crime eligible
for the death penalty, so as to cure any misimpression that
the jurors might have obtained during voir dire. Defendant
opposed the instruction, arguing that it was enough that
the jurors would receive the standard instruction not to
consider the possible punishment in making their decision,
110 State v. Horn-Garcia
and asserting that the proposed additional instruction could
prejudice her.5
The trial court agreed with the state that a “cura-
tive” instruction was appropriate. The court was concerned
that some jurors might be unable to “render a verdict based
on the law and facts” if they were under the misimpression
that defendant could be sentenced to death. In the court’s
words, it was concerned about “a juror potentially making a
decision based on a misapprehension that the death penalty
could be imposed when we know there are people who would
adamantly refuse to convict under those circumstances.”
The court pointed out that, if it were actually a death-
penalty case, the jurors would be “death-penalty qualified,”
that is, they would have gone through a different voir dire
process to remove anyone who could not properly perform
the duties of a juror due to their personal views on the death
penalty. But, in the court’s words, “no one’s opinions or feel-
ings about the death penalty—because this is not a death-
penalty case—were appropriately explored so that any of the
attorneys would have the ability to challenge a juror who
would not be able to render a verdict based on the law and
facts.”
The court decided to give Uniform Criminal Jury
Instruction 1005, “Functions of the Court and Jury,” fol-
lowed by a one-sentence curative instruction:
“It is your duty to weigh the evidence calmly and dis-
passionately, and to decide this case on its merits. Do not
allow bias, sympathy, or prejudice any place in your delib-
erations. Do not decide this case on guesswork, conjecture,
or speculation. Do not consider what sentence might be
imposed by the Court if the defendant is found guilty.
“Under Oregon law, the charge of Murder by Abuse is
not a crime that is eligible for consideration of the death
penalty.”
(Emphasis added.) There was no other mention of this not
being a death-penalty case. As agreed by the parties, the
5
Only defendant objected. Defendant’s co-defendant, Garcia, agreed with
the instruction being given for curative purposes.
Cite as 320 Or App 100 (2022) 111
trial court ordered that there be no mention of it, in clos-
ing arguments or otherwise, “other than me reading the
instruction to the jury tomorrow.”
Defendant contends that it was error to give the
curative instruction. Specifically, she argues that it con-
flicts with a common-law principle, that it denied her a fair
trial, and that it violated her due process rights under the
Sixth and Fourteenth Amendments to the United States
Constitution. In her reply brief on appeal, she adds a new
argument that the instruction violated ORS 136.325.
There is a “general common-law principle” that “a
jury should reach its verdict based on the facts of the case
and the applicable law without being influenced by the con-
sequences of its verdict.” State v. Amini, 175 Or App 370,
383, 28 P3d 1204, rev den, 333 Or 73 (2001). Consistent with
that common-law principle, ORS 136.325 provides that, with
very limited exceptions, “the jury in a criminal proceeding
may not be informed of, and may not consider, any punish-
ment that the court may impose if the defendant is convicted
of the charge.” (Emphasis added.) Possibly alluding to ORS
136.325, the court noted at one point during argument on
the proposed instruction that there is a difference between
informing a jury of a punishment that may be imposed—
which is prohibited—and informing it of one that may not
be imposed.
We begin with the preserved argument. As defen-
dant acknowledges (while disagreeing with it), under exist-
ing precedent, informing the jury of the consequences of a
particular verdict does not in and of itself violate a defen-
dant’s due process rights under the Sixth and Fourteenth
Amendments or deprive the defendant of a fair trial. Amini,
175 Or App at 373-75, 383-86 (where the defendant was
charged with aggravated murder and raised the defense
of mental disease or defect constituting insanity, it did not
violate his federal due process rights that the jury was
instructed at length, as provided in ORS 161.313, as to the
consequences of a guilty-except-for-insanity verdict, and
he was not denied a fair trial). Rather, we must evaluate
the individual circumstances to determine whether the
112 State v. Horn-Garcia
particular information provided to the jury deprived the
defendant of a fair trial in the particular case.6
Here, the trial court reasonably was concerned
that the jurors might misapprehend that defendant could
be sentenced to death if convicted—based on the jurors’
interactions with defense counsel during voir dire—which
could affect their willingness to decide the case on the law
and the evidence. The unique nature of the death penalty
and the strong feelings that it may arouse are precisely
why jurors must be death-penalty qualified to sit on a case
involving the potential imposition of the death penalty. See
State v. Turnidge (S059155), 359 Or 364, 407, 411, 374 P3d
853 (2016), cert den, 137 S Ct 665 (2017) (prospective jurors
may be excused for cause in a capital case if they hold such
strong ethical or moral views regarding the death penalty
that it “would prevent or substantially impair” their ability
to follow the court’s instructions and would effectively cause
the juror to vote to acquit “no matter the law or evidence in
the case”); State v. Lotches, 331 Or 455, 478, 17 P3d 1045
(2000), cert den, 534 US 833 (2001) (affirming the excusal
of a prospective juror because his “strong opposition to the
death penalty would prevent him from following the court’s
instructions”).
Perhaps it would have been better if the issue had
been addressed during voir dire, as defendant suggests. It
was not, however,7 and we disagree with defendant that that
was the only time that it could be addressed. If the jurors
had been told during voir dire that this was not a death-
penalty case, the connection between that information and
the voir dire content would have been more obvious, but the
6
At times, defendant seems to argue the common-law principle separately
from due process or a fair trial, but she never explains how the analysis would be
different under the common-law principle or could lead to a different result than
a due-process analysis. Ultimately, we understand defendant’s argument to turn
on whether the instruction deprived her of a fair trial, whether the underlying
principle is one of common law or federal due process.
7
In arguing against the instruction, defense counsel suggested that the
state should have said something during voir dire, and the trial court recalled
that a prosecutor did say in one voir dire that they should “move on” because
it was not a death-penalty case. No one else remembered that, and the parties
agree that no such comment was made in any voir dire, at least not on the record
in front of the prospective jurors.
Cite as 320 Or App 100 (2022) 113
information would have been the same.8 And that informa-
tion was reasonably necessary to cure a misimpression that
voir dire may have created. Given the nature of the death
penalty and the lack of a death-penalty qualified jury, there
was a legitimate risk that at least one juror might vote to
acquit, despite being convinced of guilt beyond a reason-
able doubt, to avoid defendant getting the death penalty.
By contrast, it is highly implausible that any juror would
vote to convict defendant of murdering a child, despite not
being convinced beyond a reasonable doubt of her guilt, just
because the death penalty was not available. In the trial
court’s words, given the circumstances and the instructed
burden of proof, “advising [the jurors] in one sentence that
the death penalty is not an issue in this case does not
diminish that, minimize that, or run the risk of anything
other than letting the jury know they can decide this case
based on the law and the facts as they determine them to
be.”
By giving the instruction, the court cured the risk of
an unjust and improper acquittal, without creating the risk
of an unjust and improper conviction. That distinguishes
this situation from the one in State v. Wall, 78 Or App 81,
715 P2d 96, rev den, 301 Or 241 (1986), a case on which
defendant relies. In Wall, the defendant did not dispute that
he had killed the victim; his defense was that he was not
guilty by reason of mental disease or defect. 78 Or App at
83. During cross-examination of a psychiatrist, the prose-
cutor elicited testimony to the effect that a motive exists for
people to want to be found not guilty by reason of mental
disease or defect, because they can be confined by the state
only for so long as they have an “active mental illness” and
then must be released. Id. at 83-84. The jury subsequently
found the defendant guilty. Id. at 85.
8
The majority of the jurors—eight of 12 seated jurors and two of three alter-
nate jurors—had been exposed to potentially misleading voir dire discussions
regarding the death penalty. We express no opinion on whether the outcome
might be different if, for example, only one or two jurors had been exposed. At the
same time, we disagree with defendant that every single juror had to be exposed
for the instruction to be permissible. Jurors necessarily talk to each other during
deliberations and would be unlikely to perceive it as improper to discuss voir dire.
Moreover, it would only take one juror refusing to vote based on the evidence, due
to death-penalty concerns, to change the verdict.
114 State v. Horn-Garcia
On appeal, the defendant in Wall argued that the
testimony was improper and “could have influenced the jury
to find him guilty in order to avoid his early release back
into society, thereby depriving him of a fair trial.” Id. at
84. We agreed that the line of questioning was improper—
because “whether the defendant will be confined in a men-
tal institution is not ordinarily a matter for the jury’s
consideration”—and prejudicial—because “suggesting that
the state could not keep defendant confined if he were found
not guilty by reason of mental disease or defect” was “very
likely to have influenced the jury” by appealing to their
fears and tending “to persuade them to convict rather than
risk that defendant would soon be released.” Id. at 84-85.
Moreover, the general instruction given at the end of trial,
not to consider what sentence might be imposed, was “too
little, too late,” particularly as it did not tell the jury not to
consider what would happen if the defendant was found not
guilty by reason of mental disease or defect. Id. at 85.
In this case, the court was trying to prevent the
jury from relying on an improper consideration regarding
the consequences of its verdict and avert the risk of a juror
voting based on emotion rather than the evidence. The
court recognized that, even with a general instruction not
to consider sentencing, jurors who were not death-penalty
qualified might be unable to avoid thinking about the death
penalty and allow it to affect their decision. Under the
circumstances, the way to cure that was to simply advise
the jury that the death penalty was not at issue, to get it
off their minds, while also clearly instructing the jury not
to consider what sentence might be imposed if defendant
was found guilty. Defendant was not prejudiced by the
brief instruction that was given in the manner that it was
given.
As for ORS 136.325, defendant did not make a stat-
utory challenge to the instruction in the trial court, nor
did she make a statutory challenge in her opening brief on
appeal. Rather, defendant raises the statutory issue for the
first time in her reply brief on appeal. That is simply too
late. See ORAP 5.45(1) (we will not consider a claim of error
unless it “was preserved in the lower court and is assigned
Cite as 320 Or App 100 (2022) 115
as error in the opening brief”); Federal National Mortgage
Association v. Goodrich, 275 Or App 77, 86, 364 P3d 696
(2015) (we normally will not consider an issue raised for the
first time in a reply brief). Arguing that the instruction vio-
lated ORS 136.325, even if it did not violate federal due pro-
cess or deprive her of a fair trial, is a distinct new argument,
based on a different source of law, that has been raised far
too late, and by which defendant asks us to construe ORS
136.325—a statute as to which there appears to be no exist-
ing case law—without the state having an opportunity to
brief it. We therefore do not consider defendant’s belated
statutory argument.
In sum, the instruction that was given was reason-
ably necessary to cure a potential misimpression from voir
dire that could have improperly affected the verdict, and giv-
ing it did not deprive defendant of a fair trial. The jury was
clearly instructed that it should not consider the sentence
that might be imposed if defendant was convicted. To effec-
tuate that instruction in these particular circumstances,
it was necessary to remove from the jurors’ mind the one
sentence that had been discussed in voir dire—the death
penalty—which was a sentence that could not be imposed
and which is a sentence that is recognized as unique in our
judicial system, in that jurors in a death-penalty case are
not assumed to be able to follow the instruction not to con-
sider sentencing in deciding guilt, unless they have been
specifically “death-penalty qualified.” Although giving such
an instruction should be an exceedingly rare event, the trial
court did not err in giving the instruction that it did under
the circumstances that it did.
D. Jury Instruction Regarding “Extreme Indifference”
To find defendant guilty of murder by abuse, the
jury had to find that she recklessly under circumstances
manifesting extreme indifference to the value of human
life caused M’s death by neglect or maltreatment. ORS
163.115(1)(c)(B) (2015). The court instructed the jury exten-
sively on the murder-by-abuse charge, including giving the
following instruction on “extreme indifference to the value
of human life”:
116 State v. Horn-Garcia
“When a crime refers to the phrase, ‘recklessly under cir-
cumstances manifesting extreme indifference to the value
of human life,’ you must first determine that the defendant
acted recklessly as defined in that jury instruction.
“Recklessness alone, however, does not establish extreme
indifference to the value of human life. Rather, a person
acts with an extreme indifference to the value of human
life when, under the circumstances, the person’s conduct
demonstrates an extraordinary lack of concern that his or
her actions might cause a death of a human being. When
making this determination, you must consider defendant’s
conduct in light of all the circumstances. You may find the
defendant acted with extreme indifference to the value of
human life only if the defendant’s conduct revealed a great
lack of concern for the risk of death to another.”
(Emphasis added.)
Defendant had proposed an instruction that was
virtually identical, except that, in lieu of the italicized sen-
tences above, she requested:
“When making this determination you must consider
defendant’s conduct before, during, and after [M]’s death
and in light of all of the circumstances. A person can com-
mit a gross error in judgment without being indifferent to the
consequences of that error.”
(Emphases added.)
The court declined to give defendant’s proposed
instruction. It considered the “error in judgment” sentence
to be repetitive of other instructions, as well as potentially
misleading insofar as it might suggest that gross errors
in judgment can never demonstrate extreme indifference
“when, in fact, they can under certain circumstances.” As for
the “before, during, and after” language, the court viewed it
as not “particularly helpful or instructive to the jury.” The
court agreed that the jury could consider evidence of defen-
dant’s conduct before, during, and after M’s death—such as
her conduct at the hospital—but felt that that was already
covered by the “in light of all the circumstances” instruc-
tion.9 In the court’s words, “[I]t’s a long period of time. So
9
In discussing defendant’s requested instruction with the parties, the court
also pointed to factual differences between this case and, for example, State v.
Downing, 276 Or App 68, 366 P3d 1171 (2016), as making the “before, during,
Cite as 320 Or App 100 (2022) 117
what is before? What is during? What is after? And how is
that more instructive than in light of all the circumstances,
in light of it all?” The court also appeared to agree with
the state that the jury should not be instructed that it must
consider defendant’s conduct before, during, and after M’s
death, as it was for the jury to decide what it considered
relevant.10
Defendant claims error. She argues that she was
entitled to her proposed instruction because it correctly
stated the law, was supported by evidence, and supported her
theory of the case. We review the denial of a jury-instruction
request for legal error. State v. Labossiere, 307 Or App 560,
565, 477 P3d 1 (2020).
Generally, a defendant is entitled to a requested
jury instruction “if the instruction correctly states the
law and is supported by sufficient evidence in the record.”
State v. Moreno, 287 Or App 205, 209, 402 P3d 767 (2017).
However, “[a] trial court does not err in refusing to give a
requested instruction ‘if the substance of the requested jury
instruction, even if correct, was covered fully by other jury
instructions given by the trial court.’ ” State v. Harrison, 292
Or App 232, 240, 423 P3d 736 (2018), aff’d, 365 Or 584, 450
P3d 499 (2019) (quoting Hernandez v. Barbo Machinery Co.,
327 Or 99, 106, 957 P2d 147 (1998)). Trial courts also should
avoid giving instructions that are “reasonably capable of
confusing or misleading the jury.” State v. Roberts, 293 Or
App 340, 346, 427 P3d 1130 (2018) (internal quotation marks
omitted). Ultimately, we will reverse a conviction based on
the refusal to give a requested jury instruction only if the
instructions given “probably created an erroneous impres-
sion of the law in the minds of the [jurors] which affected
and after” concept less pertinent here. However, the court also expressly agreed
that the jury could consider evidence of defendant’s conduct before, during, and
after M’s death—reasoning that it was already covered by the “all” instruction,
not that it was inapplicable—so we do not view those comments as especially
relevant.
10
At one point, the court offered to instruct the jury that it “may consider
defendant’s conduct before, during, and after” M’s death. Defense counsel agreed
that “may” was “a correct statement” of the law but asserted that “must” was
“more correct” and continued to press for “must consider.” The court ultimately
decided not to add “before, during, and after” language, due to it not being helpful
to the jury.
118 State v. Horn-Garcia
the outcome of the case.” State v. Thompson, 328 Or 248,
266, 971 P2d 879, cert den, 527 US 1042 (1999) (internal
quotation marks omitted); see also State v. Egeland, 260 Or
App 741, 746, 320 P3d 657 (2014) (reiterating same).
Because defendant’s requested instruction language
derives from State v. Downing, 276 Or App 68, 366 P3d 1171
(2016), we begin there. In Downing, the trial court gave a jury
instruction on the meaning of “extreme indifference to the
value of human life” that included the statement, “Conduct
manifesting extreme indifference to the value of human
life displays indifference or a lack of concern for social or
legal responsibility.” Id. at 87. The defendant excepted to
that part of the instruction, arguing that it misstated the
law, as the jury was required to “specifically assess her
level of concern for the value of human life, not her concern
for a broader category of legal and social responsibilities.”
Id. at 79. On appeal, she similarly argued that the instruc-
tion wrongly “told the jury that it could find the element
based on the mere failure to meet social and legal respon-
sibilities,” “failed to convey that the failure to meet those
responsibilities must be extreme and related to the value of
human life,” and allowed the jury to convict her on serious
charges upon a lesser culpability finding than was actually
required. Id. at 87.
We agreed that the instruction given in Downing
misstated the law in a way that could have affected the
outcome and therefore reversed the defendant’s conviction.
Id. at 88-89. We first noted that the court never explained
to the jury “that extreme indifference to the value of human
life describes a state of mind about whether a person cares
that the person’s conduct might cause the death of another
human being,” nor did it explain the relationship between
recklessness and extreme indifference to the value of
human life. Id. at 88. In that context, the “social and legal
responsibilities” instruction could have misled the jury to
believe “that extreme indifference to the value of human life
is less blameworthy than plain recklessness.” Id. at 88-89(emphasis in original). That is because conduct that is “a
gross deviation from the standard of care that a reasonable
person would observe in the situation”—i.e., reckless—“may
Cite as 320 Or App 100 (2022) 119
be worse than conduct that merely shows ‘a lack of concern
for social and legal responsibility.’ ” Id. at 89. The instruc-
tion improperly “blur[red] the distinction” between reckless-
ness and extreme indifference. Id. Further, as to extreme
indifference, the jury was supposed “to evaluate whether
defendant’s actions before, during, and after the crimes
revealed a great lack of concern, not just for any social or
legal responsibility, but for the specific responsibility to
adjust one’s actions to avoid the risk of death of another.”
Id. (emphases added). “The erroneous instruction allowed
the jury to convict defendant based on her disregard of a
different duty.” Id.
Correctly understood, “[e]xtreme indifference to the
value of human life is a state of mind that is both more
blameworthy than plain recklessness and that specifically
relates to whether one cares about the death of another
human being.” Id. at 88. Because extreme indifference is
more blameworthy than plain recklessness, a person can
“commit a gross error in judgment”—i.e., act recklessly—
“without being indifferent to the consequences of that error.”
Id. at 89. Ultimately, the instruction in Downing was erro-
neous and prejudicial because it could have led the jury to
find the defendant guilty based only on a finding of plain
recklessness or dereliction of the wrong duty.
Returning to the present case, the trial court did
not err in refusing to give defendant’s requested instruction.
With respect to the “before, during, and after [M’s] death”
language, we agree with the court that, although it could
have added those words, it was not required to do so. The
jury had heard a large amount of evidence—mostly regard-
ing defendant’s conduct before M’s death, but also some
regarding her conduct during and after it, such as her con-
duct with the first responders and at the hospital. There was
no reason for the jury to believe that it could not consider all
of that evidence. To the contrary, the jury was specifically
instructed to consider “all” the circumstances in deciding
extreme indifference, and it was also generally instructed to
consider “all the evidence you find worthy of belief” in decid-
ing the case. See State v. Crosby, 342 Or 419, 427, 154 P3d 97
(2007) (“[W]e read the instructions as a whole to determine
120 State v. Horn-Garcia
whether they state the law accurately.” (Internal quotation
marks omitted.)).
Instructing the jury to consider defendant’s conduct
“in light of all the circumstances”—without adding “before,
during, and after [M]’s death”—did not create “an erroneous
impression of the law in the minds of the jurors.” Egeland,
260 Or App at 746. Defendant argues that her requested
language would have served to “emphasize and clarify” that
“all” circumstances included those after M’s death, but we
disagree that the court was required to emphasize or clarify
that point. See Harrison, 292 Or App at 241 (concluding that
trial court did not err, where it gave a legally correct instruc-
tion, in declining to give an instruction that the defendant
felt would have “clarified” a point).
The court also did not err in declining to instruct
the jury that “[a] person can commit a gross error in judg-
ment without being indifferent to the consequences of that
error.” The jury was instructed that recklessness alone was
not enough to establish extreme indifference to the value of
human life; that a person’s conduct must demonstrate an
“extraordinary lack of concern that his or her actions might
cause a death of a human being” to constitute extreme indif-
ference; and that extreme indifference could be found only
if defendant’s conduct “revealed a great lack of concern for
the risk of death to another.” Unlike in Downing, the jury
was properly instructed on the difference between reckless-
ness and extreme indifference and the need for both to find
defendant guilty.
The trial court is “not required to give a specifically
requested instruction where it chooses to present different
instructions that adequately cover the same subject.” State
v. McWilliams, 29 Or App 101, 106, 562 P2d 577, rev den, 279
Or 1 (1977). That is true even when, as here, the requested
instruction quotes a precedential appellate opinion. As we
have pointed out previously, the way that appellate opinions
are written is not necessarily conducive to easy cutting and
pasting of individual lines into jury instructions, and not
“every quote from every opinion should become a required
jury instruction.” State v. Nefstad, 309 Or 523, 551, 789
P2d 1326 (1990); see also Torres v. Persson, 305 Or App 466,
Cite as 320 Or App 100 (2022) 121
477-78, 471 P3d 119 (2020) (discussing same). The point that
we were making in Downing, 276 Or App at 88-89—that
recklessness and extreme indifference do not always occur
together—was well conveyed by the court’s instructions and
did not have to be conveyed in the exact words that we used
in one sentence of Downing. See Harrison, 292 Or App at
241 (“The court was not required to give an instruction that
was merely an enlargement on another correct and complete
instruction already given.”).11
In sum, the trial court did not err in declining to
give defendant’s requested instruction on extreme indiffer-
ence to the value of human life.
E. Jury Instruction Regarding Nonunanimous Verdicts
The trial court correctly instructed the jury that
it could find defendant guilty of murder by abuse only by
unanimous verdict. However, over defendant’s objection, the
court instructed the jury that it could find defendant guilty
of criminal mistreatment if “10 or more” jurors agreed. That
instruction is the subject of defendant’s final assignment of
error.
Defendant is correct that it was error to give the
instruction. See Ramos v. Louisiana, 590 US ___, 140 S Ct
1390, 206 L Ed 2d 583 (2020) (holding that, under the
Sixth Amendment, a criminal defendant may be convicted
of a serious offense only by unanimous verdict). However,
because the jury returned unanimous guilty verdicts on the
criminal mistreatment charges, the error was harmless.12
State v. Kincheloe, 367 Or 335, 338-39, 478 P3d 507 (2020),
cert den, ___ US ___, 141 S Ct 2837 (2021). We reject defen-
dant’s final assignment of error.
11
Because we conclude that the court did not err in declining to give the
“error in judgment” instruction, we need not address whether adding that sen-
tence to the jury instruction might also have confused the jury as to whether a
gross error in judgment can ever demonstrate an extreme indifference to the
value of human life—an additional reason that the court expressed for declining
to give the instruction.
12
The court also instructed the jury that it could return nonunanimous
guilty verdicts on the lesser included offenses. To the extent that aspect of the
instruction is included in defendant’s assignment of error, the error was harm-
less because the jury found defendant guilty of the greater offenses and did not
return verdicts on the lesser included offenses.
122 State v. Horn-Garcia
III. CONCLUSION
Having rejected each of defendant’s assignments of
error for the reasons described, we affirm the judgment of
conviction.
Affirmed.