State v. Courtier , 316 Or. App. 121 ( 2021 )

121
Argued and submitted October 28; conviction on Count 4 reversed and
remanded, remanded for resentencing, otherwise affirmed December 1, 2021;
petition for review denied March 24, 2022 (369 Or 505)
STATE OF OREGON,
Plaintiff-Respondent,
v.
RUSSELL ORLANDO COURTIER,
Defendant-Appellant.
Multnomah County Circuit Court
16CR50154; A172468
502 P3d 264
Jerry B. Hodson, Judge.
George W. Kelly argued the cause and filed the brief for
appellant.
Leigh A. Salmon, 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
Conviction on Count 4 reversed and remanded; remanded
for resentencing; otherwise affirmed.
122 State v. Courtier
PER CURIAM
Defendant appeals his judgments of conviction for
murder in the second degree (Count 1), ORS 163.115; failure
to perform the duties of a driver to injured persons (Count 2),
ORS 811.705; and intimidation in the second degree (Count 4),
ORS 166.155(1)(b).1 Defendant raises four assignments of
error challenging: (1) the admission of evidence of antiso-
cial personality disorder as rebuttal to defendant’s defense
of extreme emotional disturbance (EED); (2) the admission
of testimony from the state’s expert witness to provide a
diagnosis of antisocial personality disorder; (3) the denial of
defendant’s motion for judgment of acquittal on the charge
of intimidation in the second degree; and (4) the instruction
and acceptance of a nonunanimous verdict on Count 4. We
reverse and remand the conviction on Count 4, and other-
wise affirm.
At trial, defendant presented the defense of EED,
ORS 163.135(1), which can reduce a charge of intentional
murder to manslaughter. State v. Zielinski, 287 Or App 770,
777, 404 P3d 972 (2017). Defendant challenges the admission
of the state’s rebuttal evidence of his diagnosis of antisocial
personality disorder on three bases: (1) it was irrelevant
because antisocial personality disorder is not a qualifying
diagnosis to support the defense of extreme emotional dis-
turbance; (2) it was more prejudicial than probative; and
(3) the state’s expert’s diagnosis was scientifically invalid.
First, the trial court properly admitted the evidence
of the competing diagnosis because it was relevant to rebut
the EED defense. See OEC 401 (evidence is relevant if it has
“any tendency to make the existence of any fact that is of
consequence to the determination of the action more proba-
ble or less probable than it would be without the evidence”).
Defendant argues that, because evidence of antisocial per-
sonality disorder is not a qualifying diagnosis to establish
EED, any evidence of the diagnosis is irrelevant. See State
v. Wille, 317 Or 487, 499, 858 P2d 128 (1993) (excluding
1
After defendant committed the crimes at issue in this case, the legislature
amended and renamed the statute. See Or Laws 2019, ch 553, § 1. Because the
amendments did not alter the portions of the statute that are relevant for this
case, we cite the current statute.
Cite as 316 Or App 121 (2021) 123
defendant’s evidence of his personality disorder because “in
determining whether a defendant has acted under the influ-
ence of an extreme emotional disturbance, ORS 163.135,
the defendant’s ‘personality characteristics’ or ‘personality
traits’ are not relevant”). However, the fact that the evidence
is not relevant to establish an affirmative defense does not
make it irrelevant to rebut one. Cf. OEC 105 (describing
guidelines for admitting evidence that is admissible for
one purpose but not admissible for a different purpose). If
the evidence that defendant suffered another mental dis-
turbance could lead a jury to conclude that defendant was
“under the influence,” ORS 163.135(1), of that disturbance,
as opposed to EED, then the jury would be free to reject the
EED defense. Given the probative value of the evidence of
antisocial personality disorder as well as the court’s instruc-
tion limiting the jury’s consideration of it, we do not find
that the trial court abused its discretion in admitting the
evidence.
We further reject defendant’s challenge to the state’s
expert because the state laid a sufficient foundation for its
expert witness to testify to his diagnosis of antisocial per-
sonality disorder. See State v. Brown, 297 Or 404, 416-18,
687 P2d 751 (1984) (outlining the guidelines for scientific
evidence). We also conclude that the record contained suffi-
cient evidence for a rational factfinder to find beyond a rea-
sonable doubt all the elements of intimidation in the second
degree, and thus we reject the third assignment of error.
ORS 166.155(1)(b).
As to defendant’s final assignment of error, the trial
court erred in instructing the jury it could convict on Counts
2 and 4 by nonunanimous verdicts, and the error was not
harmless as to Count 4 because the verdict was not unan-
imous. State v. Flores Ramos, 367 Or 292, 333-34, 478 P3d
518 (2020). Accordingly, we reverse defendant’s conviction
on Count 4.
Conviction on Count 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.