State v. Rossiter

44

Argued and submitted March 16, 2017, affirmed October 16, 2019

STATE OF OREGON,

Plaintiff-Respondent,

v.

WENONA ROSSITER,

Defendant-Appellant.

Linn County Circuit Court

13CR06277; A158920

453 P3d 562

A jury found defendant guilty of first-degree manslaughter, ORS 163.118

(1)(c), for failing to seek medical treatment for her daughter, who died of dia-

betic ketoacidosis. At trial, the court admitted expert testimony indicating that

defendant’s failure to seek medical treatment for her daughter was a gross devi-

ation from the applicable standard of care. The court also admitted evidence

that defendant’s religion proscribed seeking conventional medical treatment. On

appeal, defendant assigns error to the trial court’s (1) admission of the expert tes-

timony, (2) admission of evidence of defendant’s religion, and (3) imposition of the

statutorily mandated 120-month sentence for manslaughter, which defendant

contends is unconstitutionally disproportionate as applied to her under Article I,

section 16, of the Oregon Constitution. Held: Defendant’s challenge to the court’s

admission of expert testimony was not preserved, and any error was not plain

under Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991).

The court was within its discretion under OEC 403 to admit evidence of defen-

dant’s religious beliefs, and it did not err in rejecting defendant’s proportionality

challenge to her statutorily mandated sentence.

Affirmed.

Daniel R. Murphy, Judge.

David Sherbo-Huggins, Deputy Public Defender, argued

the cause for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services.

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, Solicitor General. On the supplemental brief were

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Jennifer S. Lloyd, Assistant Attorney

General.

Cite as 300 Or App 44 (2019) 45

Before Ortega, Presiding Judge, and Lagesen, Judge, and

Wilson, Senior Judge.

LAGESEN, J.

Affirmed.

Ortega, P. J., dissenting.

46 State v. Rossiter

LAGESEN, J.

Defendant’s 12-year-old daughter, S, died from

untreated diabetic ketoacidosis. For not seeking medical

treatment for S, defendant and her husband, S’s father, were

charged with first-degree manslaughter. After a joint trial,

a jury found them both guilty.1 On appeal, defendant assigns

error to (1) the trial court’s admission of testimony from the

state’s three expert witnesses generally to the effect that

the failure to seek medical care under the circumstances

was either a negligent or a gross deviation from the stan-

dard of care applicable to a parent or caregiver in defen-

dant’s position; (2) the court’s admission of evidence, over

defendant’s OEC 403 objection, that as part of her religion,

defendant avoided conventional medicine and looked to God

to heal the body; and (3) the court’s imposition of the statuto-

rily mandated 120-month sentence for manslaughter, which

defendant contends is unconstitutionally disproportionate

as applied to her, in violation of Article I, section 16, of the

Oregon Constitution.2

We conclude that (1) defendant’s challenge to the

admission of the expert testimony is not preserved and that

the trial court did not plainly err in admitting the evidence;

(2) the court was within its discretion under OEC 403 to

admit evidence of defendant’s religious beliefs; and (3) the

court did not err in rejecting defendant’s proportionality

challenge to her sentence. Accordingly, we affirm.

I. BACKGROUND

The facts relevant to the issues before us are few.

After S died, an autopsy revealed that she suf-

fered from Type I diabetes and that diabetic ketoacidosis

caused her death. At the time of her death, S had been sick

1

Defendant and her husband were also each charged with second-degree

manslaughter, a charge on which the jury returned a guilty verdict. That verdict

merged with the verdict on the first-degree manslaughter charge.

2

Defendant raises two additional assignments of error relating to the non-

unanimous jury verdict in this case. Defendant contends that the Sixth and

Fourteenth Amendments to the United States Constitution require unanimous

jury verdicts for the charges in this case. We reject those assignments of error

on the merits without further discussion. See State v. Gerig, 297 Or App 884, 886

n 2, 444 P3d 1145 (2019) (taking that approach).

Cite as 300 Or App 44 (2019) 47

for more than a month. She missed school for most of that

time and lost a significant amount of weight. In the days

and hours before her death, her symptoms intensified. The

day of her death, she was uncommunicative and so weak

that she could not walk to the bathroom on her own. At one

point, while in the bathroom, she fell. She was vomiting and

“peed everything she * * * drank” and “wasn’t really making

sense” when she did try to speak. At no point did defendant

or her husband seek medical care for S. Had they done so

even shortly before her death, S’s death likely could have

been prevented. The test for diabetic ketoacidosis takes just

a few minutes, and the condition is highly treatable even in

an advanced state.

For their failure to seek medical treatment for S,

the state charged defendant and her husband each with

one count of first-degree manslaughter, ORS 163.118(1)(c),

and one count of second-degree manslaughter, ORS 163.125

(1)(c). The state’s theory of the case was that the risk of

death to S absent medical treatment was or should have

been apparent to both parents, that the failure to seek med-

ical treatment caused S’s death, and that both parents acted

either recklessly (making S’s death first-degree manslaugh-

ter) or with criminal negligence (making S’s death second-

degree manslaughter) in disregarding the risk that S would

die if they did not seek medical treatment for her. Defendant

and her husband disputed that they were reckless or negli-

gent in failing to seek medical care for S. They contended

that they reasonably believed that S was suffering from

the flu—other members of the family had come down with

it around the same time—and that they had no reason to

think that medical treatment was required to prevent S

from dying.

Before trial, defendant moved under OEC 401 and

OEC 403 to preclude the state from introducing evidence of

her religious beliefs. Defendant and her husband are mem-

bers of the General Assembly and Church of the First Born.

As part of their religious beliefs, they avoid conventional

medicine and look to God to heal the body. It is counter to

their religious beliefs to take a child to a doctor, and defen-

dant would not do so unless a child asked to be taken to

48 State v. Rossiter

the doctor. She argued that the evidence was not relevant

and would be unfairly prejudicial. Opposing the motion, the

state argued that the evidence was probative of motive—

that is, that it would support an inference that defendant

had an affirmative reason to not seek medical care for S,

undercutting her claim that she thought that S was merely

suffering from the flu. The state further argued that the

risk of unfair prejudice did not substantially outweigh the

probative value of the evidence on the point of motive. The

trial court agreed with the state and ruled that the evidence

was admissible:

“It is not properly the court’s role to second guess the

parties’ trial strategy but this is an unusual one indeed.

Absent any evidence of the defendant’s religious convic-

tions or their relevance to the defendant’s conduct in this

case the state’s case is reduced to two parents whose child

becomes gravely ill, they take no action to provide medical

care for the child for no discernible reason, and the child

dies as a result. It would seem that this would be far more

prejudicial to the defense than an explanation that they

elected not to provide allopathic medical care out of reli-

gious conviction. Absent any evidence of the parents’ reli-

gious conviction[,] their actions appear not only reckless

but wanton and grossly reckless.

“This court cannot find that evidence of a religious

motive is more prejudicial in this case than the absence

of such evidence. The probative value depends on what the

evidence would indicate. If the evidence supported the con-

clusion that defendants’ religious beliefs compelled them to

the conduct in this case that occurred th[e]n it serves as

a form of motive evidence and is probative and relevant.

Under the OEC 401/403 analysis it is probative and not

highly prejudicial.

“Therefore, if offered to show that defendants acted in

conformance with a religious directive or belief such evi-

dence is admissible.”

At trial, in accordance with the court’s ruling, the

state introduced evidence regarding defendant’s religious

beliefs about relying on God rather than conventional med-

icine, and that, consistent with those beliefs, she would not

seek medical treatment for a child unless the child asked.

Cite as 300 Or App 44 (2019) 49

The state also called three medical experts at trial:

Dr. Goby, a general practitioner who served as the county

medical examiner and who had examined S’s body at the

family home the day S died; Dr. Nelson, the deputy state

medical examiner who performed S’s autopsy; and Dr. Nicol,

a board-certified pediatric endocrinologist. All three testi-

fied about the progression of untreated diabetic ketoaci-

dosis. According to their testimony, the early signs of the

condition might be mistaken for flu-like illness. However,

all three agreed that, in the hours leading up to S’s death,

her symptoms would have manifested as a medical emer-

gency. Goby testified that her condition would appear to be

an “emergency” and “dire,” but that she likely would have

survived if she had received medical treatment in the hour

before her death. Nelson testified that the symptoms of the

condition would be “obvious” and would appear to be a med-

ical emergency to a layperson. Nicol testified that a per-

son in the advanced stages of diabetic ketoacidosis would

look “gravely ill” and “appear to be experiencing a medical

emergency.”

The state also elicited testimony from each expert

that a parent or caregiver’s failure to seek medical care for

a child suffering from the symptoms of advanced diabetic

ketoacidosis deviated from the standard of care for someone

in that role, as well as testimony from Goby that a parent’s

failure to seek medical care for a child exhibiting the symp-

toms of advanced diabetic ketoacidosis would create a sub-

stantial risk of death to the child.

The state asked Goby:

“Do you feel that based on the symptoms that would

have manifested or based on the appearance of the body

as you saw it or what you learned from that, that not tak-

ing this child for medical care, seeking medical help, was

negligent?”

Goby responded, “[y]es.” Defendant did not object to the

admission of the testimony. Shortly thereafter, the state

posed a similar question to Goby:

“So I want to go back and sort of home in a little closer

on the last question I asked before we took a break. And

ask if a child exhibits some of the symptoms that you listed

50 State v. Rossiter

like labored breathing, the shallow eyes, vomiting, the

thirst, the weakness, lethargy, if they exhibit all of those

things collectively together or over a certain period of time,

say many hours, is it your opinion that a conscious failure

to seek medical care by a parent who can see these things

would create a substantial risk to a child?”

Defendant objected on the ground that the question sought

testimony on “the ultimate issue in the case.” The state

responded that such testimony was authorized under OEC

704, which provides that “[t]estimony in the form of an opin-

ion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the

trier of fact.” The court asked if the parties had “[a]nything

further on the objection” and, hearing nothing, overruled it.

Goby testified that the failure to seek medical care would

create a substantial risk of death to a child.

When Nelson was on the stand, the state asked:

“If a child, a child, any child, presented with those

symptoms to their parent, would it constitute a gross devi-

ation from the standard of care for that parent to not take

the child?”

Nelson responded, “[y]es.” Defendant did not object.

Finally, when examining Nicol, the state inquired:

“Can you also testify that in a situation like that had

that child been accompanied by adults, caretakers, par-

ents, that failure to obtain medical care would have consti-

tuted a gross deviation from the standard of care you would

expect from a reasonable person?”

Defendant objected:

“I am going to object to that question. The issue is what

someone would observe and his question was if accompa-

nied by adults, caretakers, etcetera, doesn’t really address

the issue of how long someone would be with that child,

whether they would be there the whole day, whether they

would observe the child the whole day, whether the child

was sleeping or conscious. And I think because it’s so vague

and so crucial to the case I’m going to object on that basis.”

The trial court overruled the objection, and the state posed

the question to Nicol again:

Cite as 300 Or App 44 (2019) 51

“You may answer that question, would it constitute a

gross deviation from the standard of care that you would

expect from a reasonable person in that situation?”

Nicol responded, “[y]es.”

The jury returned guilty verdicts on both charges

against defendant. Those verdicts merged into a single con-

viction for first-degree manslaughter. The trial court sen-

tenced defendant to the applicable mandatory 120-month

sentence under ORS 137.700(2)(a)(D). In so doing, the court

rejected defendant’s argument that the mandatory sen-

tence, as applied to defendant, was unconstitutionally dis-

proportionate under Article I, section 16. Although the court

concluded that the sentence was “harsh in this instance and

under these facts,” the court determined that it was not “so

harsh as to shock the consci[ence].” Elaborating on its deci-

sion, the court explained:

“There is not enough difference from a more typical

manslaughter case to distinguish it sufficiently to ren-

der the Measure 11 sentence so unjust as to violate the

constitution.

“The Measure 11 sentence required in this case is not

the best possible sentence the court could impose and if the

court had discretion to formulate a sentence that was more

just and more likely to protect the public, and in particular

children, the court would do so. Absent a clear constitu-

tional disproportionality the court does not have that dis-

cretion under Measure 11.”

The court memorialized that ruling in its written judgment.

Defendant appealed. In her first four assignments

of error, defendant challenges the trial court’s admission of

the testimony by Goby, Nelson, and Nicol that is set forth

above. Defendant contends generally that the expert testi-

mony at issue was admitted in violation of OEC 702, OEC

703, and OEC 403. The state responds that defendant did

not preserve the issues that she is raising on appeal because

she never objected on the grounds that the evidence was

inadmissible under those particular rules. The state argues

further that any error in admitting the challenged evidence

is not plain.

52 State v. Rossiter

In her fifth assignment of error, defendant assigns

error to the trial court’s admission of the evidence regarding

her religious beliefs, contending that the court abused its

discretion under OEC 403 in concluding that the probative

value of the evidence was not substantially outweighed by

the danger of unfair prejudice. The state responds that the

court’s decision was within its discretion, pointing to other

cases upholding the admission of similar evidence under

OEC 403.

Finally, in her sixth assignment of error, defendant

contends that the trial court erred in rejecting her as-applied

proportionality challenge to the 120-month sentence that the

trial court imposed pursuant to ORS 137.700(2)(a)(D). The

state responds that the court was correct to conclude that

this case does not present the sort of “rare circumstances” in

which Article I, section 16, requires a court to override the

legislature’s policy judgment as to the appropriate penalty

for the crime of first-degree manslaughter.

II. ANALYSIS

A. Expert Testimony

Defendant’s first four assignments of error chal-

lenge the trial court’s admission of expert testimony from

Goby, Nelson, and Nicol. But those assignments of error

have not been presented in a way that facilitates meaning-

ful appellate review, are not preserved, and, to the extent

plain error review might be appropriate, do not demonstrate

plain error.

We start with presentation. It is difficult for us to

review these assignments of error in a manner consistent

with the principle that “it is not this court’s function to

speculate as to what a party’s argument might be. Nor is it

our proper function to make or develop a party’s argument

when that party has not endeavored to do so itself.” Beall

Transport Equipment Co. v. Southern Pacific, 186 Or App

696, 700 n 2, 64 P3d 1193, adh’d to on recons, 187 Or App

472, 68 P3d 259 (2003). That is largely because the assign-

ments are presented to us in way that only loosely complies

with ORAP 5.45.

Cite as 300 Or App 44 (2019) 53

The gravamen of defendant’s assignments of error

is that the trial court admitted four distinct pieces of testi-

mony in violation of one or more specific rules of evidence:

OEC 702; OEC 703; OEC 403. Rather than developing each

assignment of error separately, she has combined them

without meaningfully addressing the distinctions between

the individual items of evidence or the individual rules as

applied to particular items of evidence.

Although defendant generally contends that the

assigned errors are preserved, and includes a preserva-

tion section in her brief, the content of that section does not

demonstrate that defendant ever argued to the trial court

that the admission of any of the challenged evidence violated

any of those rules, as is required by ORAP 5.45(1) (2015).3

Instead, the preservation section indicates that defendant

objected to some but not all of the challenged testimony,

and that her objections below do not match her objections on

appeal.

At the close of the preservation section, defendant

does acknowledge the possibility that her assignments of

error are not preserved and requests plain error review if

we conclude that is the case. However, her arguments as

to why plain error review might be appropriate are cursory

and her ensuing arguments on the merits do not frame the

legal discussion in terms of the well-defined standards for

plain error review under Ailes v. Portland Meadows, Inc.,

312 Or 376, 381-82, 823 P2d 956 (1991).

Defendant’s brief also does not address the stan-

dards of review applicable to evidentiary rulings under the

OEC provisions identified. That conflicts with ORAP 5.45(5).

It also imposes an additional impediment to our review.

ORAP 5.45(5) provides: “Under the subheading ‘Standard of

Review,’ each assignment of error shall identify the applica-

ble standard or standards of review, supported by citation to

3

Defendant’s opening brief was filed while ORAP 5.45 (2015) was in effect

and is thus governed by that version of the rule, which has been amended since

defendant filed her brief. ORAP 1.10(1). All references to the ORAP provision

in this opinion are to the 2015 version of the rules. ORAP 5.45(4) provides, in

pertinent part, that, in the section of a brief addressing preservation of error,

“[e]ach assignment of error must set out pertinent quotations of the record where

the question or issue was raised and the challenged ruling was made[.]”

54 State v. Rossiter

the statute, case law, or other legal authority for each stan-

dard of review.” As we have observed, “[t]he requirement that

parties to an appeal set out the proper standard of review

for each assignment of error is not a mere formality.” Dillard

and Dillard, 179 Or App 24, 26 n 1, 39 P3d 230, rev den,

334 Or 491 (2002). This court’s fundamental function is to

review the decisions of trial courts and administrative agen-

cies, and the standard of review defines our role on review.

The requirement that the parties to an appeal identify the

standard of review applicable to a certain assignment of

error “serves the purpose of causing the parties to frame

their arguments appropriately to the types of rulings being

challenged. It also helps to identify any differences that the

parties may have regarding the proper scope of review[.]”

State v. Schwartz, 173 Or App 301, 305 n 2, 21 P3d 1128

(2001). In other words, defendant’s failure to identify the

standard of review applicable to the challenged rulings, and

to analyze the assignments of error through that lens, is a

significant omission in her arguments to us.

Finally, defendant’s argument on the merits con-

sists of (1) a general summary of her view of the principles

captured by OEC 702, OEC 703, and OEC 403,4 and (2) a

very general argument that the admission of the challenged

evidence violated those principles. In the end, what we are

presented with is a highly generalized argument that the

admission of the evidence violated “the Oregon Evidence

Code,” without much regard to whether defendant preserved

those issues, what this court’s proper role is in reviewing

the trial court’s ostensible rulings, or much guidance about

how the particular rules apply to the distinct items of evi-

dence. Reviewing defendant’s claims of error in view of that

approach would place us in the position of developing defen-

dant’s arguments for her, at least to a fair extent.

To the extent that defendant’s assignments of error

have been properly presented to us, they are not preserved,

and, as we explain, defendant has not demonstrated that

the criteria for plain error review are present. For an alleged

error to qualify as “plain,” so as to permit plain error review,

4

Defendant also identifies OEC 401 and OEC 704, but does not appear to

base her argument on those rules.

Cite as 300 Or App 44 (2019) 55

it must (1) be a legal error that is (2) “obvious, not reasonably

in dispute[,]” and (3) “appear ‘on the face of the record,’ i.e.,

the reviewing court must not need to go outside the record to

identify the error or choose between competing inferences,

and the facts constituting the error must be irrefutable.”

Ailes, 312 Or at 381-82 (quoting State v. Brown, 310 Or 347,

355-56, 800 P2d 259 (1990)).

Defendant first contends that Goby’s testimony that

defendant was “negligent” for not obtaining medical care for

S “is an unhelpful legal conclusion drawn by a witness with

no superior ability to apply the facts to the law than the

jury.” Assuming that that assertion could establish grounds

for excluding evidence under one or more of the evidentiary

rules cited by defendant, defendant has not demonstrated

that it is “plain” either that Goby’s testimony was “unhelp-

ful” or that Goby had no superior ability to the jury’s to

assess whether defendant was negligent.

As for helpfulness, the Supreme Court has explained:

“There are situations * * * where a jury clearly is not equally

well qualified and needs help to find the truth. There are

also situations where a jury clearly is equally qualified

without help from opinion testimony such as offered here.

It is the area between the clearly qualified and the clearly

unqualified where the trial judge should be granted a cer-

tain latitude of decision in excluding or receiving expert

opinion testimony.”

Yundt v. D & D Bowl, Inc., 259 Or 247, 259, 486 P2d 553

(1971). In such circumstances involving a factual issue that

is “neither clearly within, nor beyond, the jury’s assumed

level of understanding,” a trial court has discretion in deter-

mining whether particular testimony will assist the jury in

some way. State v. Jesse, 360 Or 584, 599, 385 P3d 1063

(2016). A trial court may admit expert testimony specifically

addressing an issue to be decided by the jury so long as the

issue is one that is not “clearly” within the jury’s under-

standing. Madrid v. Robinson, 324 Or 561, 567-68, 931 P2d

791 (1997).

Madrid illustrates the point. It involved a negli-

gence claim by the plaintiff, a guardian ad litem for a runner

who was struck by the defendant’s car while running along

56 State v. Rossiter

a highway. Id. at 563. The runner’s position in the roadway

was disputed at trial. Id. Over the plaintiff’s objection, the

trial court permitted two accident reconstruction experts to

opine that the runner had been in the travel portion of the

roadway, and that the runner’s position was the cause of the

accident. Id. at 564-66. The jury found in favor of the defen-

dant. Id. at 566. On appeal, we reversed. We reasoned:

“At trial, the point of impact between [the runner] and defen-

dant’s car was a hotly contested factual issue. Although [the

accident reconstruction experts’] testimony about the point

of impact was cumulative, their testimony as to the cause of

the accident was pure opinion on the legal consequences of

disputed facts. * * * That testimony impermissibly told the

jury that it should reach a particular result on the question

of defendant’s alleged negligence.”

Madrid v. Robinson, 138 Or App 130, 134, 906 P2d 855 (1995)

(internal quotation marks and citations omitted).

The Supreme Court saw things differently. It con-

cluded that it was a discretionary call for the trial court

whether the testimony would be helpful to the jury under

the circumstances. The court explained:

“In this case, plaintiff argues that the officers’ expert

testimony about what ‘caused’ the accident should have

been excluded, because it did not assist the jury to under-

stand the evidence or a fact in issue but, instead, it merely

told the jury to decide the case for defendant. The trial

court reasonably could have sustained plaintiff’s objections

on those grounds. However, testimony about causation may

refer to a question of fact that is properly within the realm

of expert opinion, where the expert’s evaluation and inter-

pretation of evidence will assist the jury to understand it.

Thus, the court reasonably could have found that the offi-

cers’ opinion testimony addressed a fact in issue, i.e., the

point of impact, in a way that would assist the jury.”

Madrid, 324 Or at 568.

Here, similar as in Madrid, knowledge of how a

parent or other caregiver might respond to the signs of dia-

betic ketoacidosis in a child is not something that is clearly

within the assumed understanding of the jury—at least,

Cite as 300 Or App 44 (2019) 57

in view of our plain error standards, it is not obvious that

that is the case. Consequently, it is not obvious that Goby’s

testimony could not help the jury by “adding specialized

confirmation and, thus, confidence to general propositions

otherwise likely to be assumed more tentatively by the trier

[of fact].” Jesse, 360 Or at 594 (identifying some of the ways

that expert testimony can assist a jury). It therefore is not

obvious that the trial court erred by admitting it.

As for whether Goby had no more of a “superior abil-

ity” than the jury to evaluate whether defendant’s conduct

was negligent, that also is not plain on this record. Goby had

been a family practitioner for 43 years and had treated chil-

dren with diabetes. That would permit a reasonable infer-

ence that Goby has developed expertise over time on what

sorts of symptoms typically result in parents and caregivers

seeking medical treatment for a child in their care. In any

event, definitively resolving the question of Goby’s compe-

tency to testify to whether a parent’s failure to seek medical

care for a child comports with the standard of care for a

caregiver would require us to go outside the record created

in the trial, which is something we cannot do in the context

of plain error review. Ailes, 312 Or at 381-82.

Defendant next argues that the trial court erred in

permitting Goby to testify that a conscious failure to seek

medical care created a substantial risk of death. Although

defendant characterizes that testimony as “less problem-

atic” than Goby’s opinion on negligence, defendant asserts

that “the doctor essentially testified that defendant’s disre-

gard of the risk was negligent and the reason it was negli-

gent is because it created a substantial risk” of S’s death.

Thus, defendant contends, the admission of the testimony

“violated the above-described rules of evidence.”

That argument does not demonstrate any plain

error. Again, knowledge about diabetic ketoacidosis, the risks

that it poses, and the circumstances under which a reason-

able caregiver ordinarily would seek medical treatment for

a child suffering from complications from Type I diabetes,

is not obviously something that is “clearly” within a jury’s

assumed understanding, such that a trial court would have

no choice but to exclude expert opinion on the point.

58 State v. Rossiter

Defendant’s final argument is as follows:

“Lastly, both Doctors Nelson and Nicol specifically tes-

tified that the failure to take a child who is suffering from

the symptoms of DKA to the doctor constitutes a gross

deviation from the standard of care that a reasonable per-

son would observe—an express element of first-degree

manslaughter. As repeatedly noted above, the doctors pro-

vided no insight uncommon to the jury that would help it

resolve that question—yet their credentials and positions

of authority carried with them an unacceptably high risk

that the jury would defer to their assessments.”

Assuming again that the points made in that argument

could supply a basis for excluding the challenged evidence

under the identified evidentiary rules, it does not demon-

strate plain error for the same reasons identified in our dis-

cussion of Goby’s testimony. Beyond that, it is not plain that

Nicol or Nelson had no helpful insights to supply. Nicol, in

particular, regularly treats children ages 0 to 18 for diabe-

tes. She testified, without objection, that children who are

ultimately diagnosed with Type I diabetes are typically

brought to a pediatrician “because their child has lost weight

or they are drinking or peeing all the time.” That testimony

would support the inference that Nicol’s experience as a

pediatric endocrinologist puts her in a position to observe

the circumstances that cause typical parents and caregivers

to seek medical care for children. That is information that

could help a jury evaluate how defendant’s conduct comports

with what is reasonable to expect of a parent in similar cir-

cumstances. Although it is less evident on this record that

Nelson, a forensic pathologist, was in a position to supply

insight to the jury on the circumstances in which parents

and caregivers seek care for diabetic children, definitively

resolving that question would require us to go outside the

record, contrary to the rules of plain error review.

For those reasons, we reject defendant’s first four

assignments of error.

B. Evidence of Religious Beliefs

Defendant next assigns error to the trial court’s

admission of evidence of her religious beliefs. She contends

that the court’s reasoning in its letter opinion demonstrates

Cite as 300 Or App 44 (2019) 59

that the court erred in concluding that the evidence was

admissible under OEC 403. Specifically, she contends that

the court erred in its assessment of the state’s need for

the evidence and also in its assessment of the potential for

unfair prejudice presented by the evidence.

We review a trial court’s OEC 403 decision for abuse

of discretion. State v. Schmidt, 296 Or App 363, 366, 439

P3d 500, rev den, 364 Or 849 (2019). “Generally, we defer to

a trial court’s ‘decision whether the probative value of the

evidence is substantially outweighed by the potential for

prejudice.’ ” Id. (quoting State v. Williams, 313 Or 19, 29-30,

828 P2d 1006, cert den, 506 US 858 (1992)).

Under that deferential standard of review, we will

not displace the trial court’s determination that the proba-

tive value of the evidence was not substantially outweighed

by the risk of unfair prejudice. The Supreme Court has held

that evidence of a defendant’s religious beliefs is admissi-

ble to prove motive when it is reasonable to infer that those

beliefs operated as a motive to commit the charged crime.

State v. Brumwell, 350 Or 93, 107-09, 249 P3d 965 (2011);

State v. Hayward, 327 Or 397, 406-09, 963 P3d 667 (1998).

In this case, a disputed issue on the manslaughter charge

was whether defendant had consciously disregarded the risk

of failing to seek medical care for S. Defendant’s theory was

that she had no reason to think that S’s situation was so

dire; the state’s theory was that defendant was aware of the

risk and consciously disregarded it. Under those circum-

stances, evidence that defendant’s religious beliefs directed

her to rely on God rather than on conventional medicine to

heal the body was highly probative because it would support

the reasonable inference that defendant had a motive for not

seeking medical care for S, even though she was aware of the

risk. We acknowledge, as does the state, that the introduc-

tion of evidence of a defendant’s religious beliefs gives rise

to a risk that hostility to those beliefs may influence a jury’s

deliberations. See Brumwell, 350 Or at 107 (recognizing the

risk presented by evidence of religious beliefs, when those

beliefs might be ones that jurors could view with hostility in

view of their own religious beliefs). But, it was not outside

the trial court’s discretion to conclude that the probative

60 State v. Rossiter

value of the evidence on the issue of motive was not substan-

tially outweighed by the risk that the jury would decide the

case based on hostility to defendant’s religious beliefs. See,

e.g., id. (where evidence of the defendant’s religious beliefs

was “integrally related” to the reason the crimes were com-

mitted, trial court did not abuse its discretion by concluding

that probative value was not substantially outweighed by

the risk of unfair prejudice for purposes of OEC 403).

Defendant also argues that the trial court’s remarks

questioning defendant’s strategic choice to seek to exclude

the evidence demonstrates that the court misjudged how

prejudicial the evidence could be. We do not disagree with

defendant that the court’s remarks can be read that way.

Ultimately, though, it appears that the court’s remarks were

largely gratuitous. After opining on defendant’s (and her

husband’s) trial strategy, the court went on to explain:

“If the evidence supported the conclusion that defen-

dants’ religious beliefs compelled them to the conduct in

this case that occurred th[e]n it serves as a form of motive

evidence and is probative and relevant. Under the OEC

401/403 analysis it is probative and not highly prejudicial.”

That explanation indicates that the trial court ulti-

mately understood and ruled on the arguments presented

to it about whether the evidence’s probative value as motive

evidence was substantially outweighed by the risk that the

jury would decide the case based on improper hostility to

defendant’s religion. Therefore, notwithstanding its digres-

sion about defendant’s trial strategy, we conclude that the

trial court’s decision to admit the evidence comported with

OEC 403.

C. Proportionality

Defendant’s final contention is that the trial court

erred when it rejected her as-applied proportionality chal-

lenge to the statutorily required 120-month sentence for

manslaughter. Specifically, she asserts that the trial court

erred in three respects: (1) by stating that it was not permit-

ted to consider certain mitigating factors in assessing the

proportionality of the sentence; (2) by finding the sentence to

be proportionate, notwithstanding the fact that defendant

Cite as 300 Or App 44 (2019) 61

has no criminal history; and (3) by applying an incorrect

legal standard in determining proportionality. None of those

arguments demonstrates reversible error.

Starting with defendant’s third point—whether the

trial court applied the incorrect legal standard in assessing

proportionality—that is of no moment in light of our stan-

dard of review. “In considering a sentence proportionality

challenge under Article I, section 16, ‘we review for legal

error the trial court’s conclusion that defendant’s sentence

was constitutional[.]’ ” State v. Cook, 297 Or App 862, 865,

445 P3d 343 (2019) (quoting State v. Ryan, 361 Or 602, 614,

396 P3d 867 (2017)). That is, we ourselves are required to

assess the legal merits of defendant’s proportionality chal-

lenge with fresh eyes, accepting any supported factual find-

ings by the trial court. In so doing, we will apply the correct

legal standard, even if the trial court applied an incorrect

one. Defendant does not suggest that the trial court’s osten-

sible application of an incorrect legal standard affected its

factfinding or otherwise influenced its ruling in a way that

would require a remand. As a result, defendant’s argument

that the court erroneously required her to show that the

sentence was “clearly” disproportionate does not establish

reversible error.

Defendant’s first point fails to demonstrate revers-

ible error because it is predicated on a misreading of the

trial court’s order. As the state points out, the court’s “obser-

vations as to the limits of its authority to consider mitigat-

ing factors were directed at its authority under Measure

11, and not under Article I, section 16.” Those observations

about the scope of its authority under Measure 11 were

legally correct. Under Measure 11, “the trial court has no

discretion to impose a lesser sentence based on the specific

facts of the case, harm to the victim, or characteristics of the

defendant.” State v. Rodriguez/Buck, 347 Or 46, 52, 217 P3d

659 (2009).

Finally, as to the merits of defendant’s proportion-

ality challenge, defendant has not demonstrated that this

case is one of the rare ones in which Article I, section 16,

permits a court to displace the legislatively prescribed

sentence for the offense of which defendant was convicted.

62 State v. Rossiter

See State v. Wheeler, 343 Or 652, 670, 175 P3d 438 (2007)

(explaining that the standard for displacing a legislatively

prescribed sentence under Article I, section 16, is one “that

would find a penalty to be disproportionately severe for a

particular offense only in rare circumstances”). The ques-

tion, ultimately, is whether defendant’s sentence can be said

to “shock the moral sense” of reasonable people “as to what is

right and proper under the circumstances.” Sustar v. County

Court of Marion Co., 101 Or 657, 665, 201 P 445 (1921). Three

factors inform the consideration of that question:

“(1) a comparison of the severity of the penalty and the grav-

ity of the crime; (2) a comparison of the penalties imposed

for other, related crimes; and (3) the criminal history of the

defendant.”

Rodriguez/Buck, 347 Or at 58.

Considering those factors, defendant’s sentence is

not one that shocks the moral sense of reasonable people.

The crime of which defendant was convicted was grave. The

jury found that defendant caused her daughter’s death by

consciously disregarding a substantial risk that her daugh-

ter would die without medical treatment. As a result of

defendant’s conduct, as found by the jury, a child is dead

because the people entrusted with her care did not seek

medical care for her even though they were aware she faced

a risk of death. The 120-month sentence is not overly severe

for conduct causing the death of the child. The 120-month

sentence also is in line with the sentences for other forms

of homicide.5 Although defendant’s lack of criminal history

weighs in her favor in this calculus, that fact ultimately does

not convince us that this is one of the rare circumstances in

which we may displace the legislatively prescribed penalty

for defendant’s offense, in view of the severity of the offense

and the fact that the sentence is in line with the penalties

for other forms of homicide. As the trial court recognized,

defendant has not demonstrated that the circumstances of

this case are so different from other cases of first-degree

manslaughter that it would shock the conscience to require

5

Under ORS 137.700(2)(a)(A), the mandatory minimum sentence for murder

is 300 months. Under ORS 137.700(2)(a)(E), the mandatory minimum sentence

for second-degree manslaughter, ORS 163.125, is 75 months.

Cite as 300 Or App 44 (2019) 63

defendant to serve the legislatively prescribed sentence, but

not shock the conscience to require other defendants to do

so, and defendant does not contend that the prescribed sen-

tence is facially unconstitutional.6

Affirmed.

ORTEGA, P. J., dissenting.

Although I agree with the majority that defendant’s

challenge to the admission of the expert testimony is not

preserved, the trial court’s admission of the testimony of

Nelson and Nicol was plain error, in my view, and I would

exercise discretion to correct that error. Because I would

reverse on that basis, I dissent.17

I acknowledge at the outset that the error that

I find to be plain is not plain to the majority. However, I

remain convinced that the error is plain and that we should

correct it under these circumstances. This case presented a

challenge to the jury; a child is dead, and she died while in

the care of a parent who, by all accounts, was an otherwise

law-abiding person with whom the jury members otherwise

might identify. The testimony whose admission was plain

error relieved the jury of a burden that it was capable of

bearing and was required to bear. It improperly gave the

jury the backing of an expert to reach a decision that might

well have been emotionally difficult to make otherwise. As

I will explain, doing so was plainly erroneous and may well

have allowed members of the jury to rely on the experts for

a determination that they were required to make. For that

reason, I would exercise discretion to correct that error.

I begin by setting some context. Consideration of

an unpreserved claim of error encompasses two steps, the

first being a determination of whether the trial court plainly

erred. Error is “plain” if

60

In her sentencing memorandum to the trial court, defendant argued that,

among other things, the influence that her religious beliefs had on her conduct

should bear on the proportionality analysis. Defendant has not further developed

that argument on appeal.

17

I agree with the majority that the court was within its discretion under

OEC 403 to admit evidence of defendant’s religious beliefs and that the court did

not err in rejecting defendant’s proportionality challenge to her sentence.

64 State v. Rossiter

“(1) the error is one of law, (2) the error is ‘obvious, not rea-

sonably in dispute,’ and (3) the error ‘appears on the face

of the record,’ so that we need not ‘go outside the record to

identify the error or choose between competing inferences,

and the facts constituting the error are irrefutable.’ State v.

Reyes-Camarena, 330 Or 431, 435, 7 P3d 522 (2000) (inter-

nal quotation marks omitted).”

State v. Corkill, 262 Or App 543, 551, 325 P3d 796, rev den,

355 Or 751 (2014). If we determine that a trial court plainly

erred, we consider whether we should exercise our discre-

tion to correct that error. State v. Vanornum, 354 Or 614,

630, 317 P3d 889 (2013) (“That discretion entails making

a prudential call that takes into account an array of con-

siderations, such as the competing interests of the parties,

the nature of the case, the gravity of the error, and the ends

of justice in the particular case.”). Because the asserted

errors are legal ones and appear on the face of the record,

plain error analysis in this case turns on whether the error

is “obvious, not reasonably in dispute” and, if obvious, the

prudential call of exercising our discretion to correct it.

To explain why I see the error as plain and meriting the

exercise of discretion to correct it, I begin with a discussion

of the relevant elements of the crime of first- and second-

degree manslaughter involving the death of a child under

14 years of age and when the death is caused by neglect or

maltreatment.

In that circumstance, second-degree manslaugh-

ter requires the culpable mental state of criminal negli-

gence, ORS 163.125(1)(c), and first-degree manslaughter

requires the culpable mental state of recklessness, ORS 163.118

(1)(c).28 Those terms are defined as follows. “Criminal negli-

gence” or “criminally negligent”

“means that a person fails to be aware of a substantial

and unjustifiable risk that the result [the death of another

28

For first-degree manslaughter not involving a child under age 14, the

required mental state is “reckless[ness] under circumstances manifesting

extreme indifference to the value of human life,” ORS 163.118(1)(a), or intentional

murder but mitigated by a defendant “under the influence of extreme emotional

disturbance,” ORS 163.118(1)(b). For second-degree manslaughter not involving

a child under 14 years of age, the mental state is causing the death of another

“recklessly,” or “intentionally” when “caus[ing] or aid[ing] another person to com-

mit suicide.” ORS 163.125(a), (b).

Cite as 300 Or App 44 (2019) 65

person] * * * will occur * * *. The risk must be of such nature

and degree that the failure to be aware of it constitutes a

gross deviation from the standard of care that a reasonable

person would observe in the situation.”

ORS 161.085(10). “Recklessly”

“means that a person is aware of and consciously disre-

gards a substantial and unjustifiable risk that the result

will occur or that the circumstance exists. The risk must

be of such nature and degree that disregard thereof con-

stitutes a gross deviation from the standard of care that a

reasonable person would observe in the situation.”

ORS 161.085(9). We have explained that the “difference

between the two mental states is that a criminally negligent

defendant grossly deviates from the standard of care for a

reasonable person by failing to be aware of a risk, whereas

a reckless defendant grossly deviates from the standard of

care of a reasonable person by consciously disregarding a

known risk.” State v. Clark, 256 Or App 428, 435 n 6, 300

P3d 281 (2013) (emphases in original). A person charged

with the crime of manslaughter that requires the mental

state of recklessness or criminal negligence has, in both

cases, a “duty to exercise that degree of care that a reason-

ably prudent person would use under the circumstances,”

and the disregard of a known risk or the failure to be aware

of a risk must constitute a gross deviation from that degree

of care. Id. at 435. Thus, a factfinder must assess, for both

mental states, the degree of care required by a reasonable

person in the given circumstances and assess whether the

failure to be aware of the risk or the disregard of a known

risk is a gross deviation from that standard.

Here, the state adduced evidence that the victim

presented symptoms associated with advanced diabetic

ketoacidosis, and the jury (if it believed that the victim

presented those symptoms or some of them) had to decide

whether defendant failed to be aware that the victim was

at a substantial risk of dying (criminal negligence) or

whether defendant knew that there was a substantial risk

of the victim dying and disregarded that risk (recklessness).

That assessment depended on a determination of whether

a reasonable person responsible for a child faced with those

66 State v. Rossiter

symptoms would seek medical help, the standard of care,

and whether defendant’s failure to seek medical help was a

“gross deviation” from that standard of care. Gross deviation

is the necessary degree of that failure, and it was the jury’s

task to decide whether that deviation was to such a degree

that defendant’s failure to seek medical help made her crim-

inally responsible for the victim’s death (rather than civilly

responsible). See State v. Lewis, 352 Or 626, 641, 290 P3d

288 (2012) (stating that “the ordinary negligence standard of

care * * * provides the benchmark for determining whether

the defendant’s conduct was a ‘gross deviation’ ”); State v.

Stringer, 49 Or App 51, 55, 618 P2d 1309 (1980), aff’d, 291 Or

527, 633 P2d 770 (1981), on reh’g, 292 Or 388, 639 P2d 1264

(1982) (concluding that the trial court’s instruction that the

jury must find that the defendant’s conduct constituted a

gross deviation from the standard of reasonable care was

the correct instruction because it “correctly informed the

jury as to the degree of the breach of duty which was requi-

site to a finding of criminal liability under ORS 163.145”).

I turn to the challenged testimony from Nelson

and Nicol. Nelson, the forensic pathologist, testified to the

symptoms of diabetic ketoacidosis and that they would be

observable to a layperson and would manifest as an emer-

gency and ultimately, that it would “constitute a gross devi-

ation from the standard of care for that parent to not take

[a] child” with those symptoms to a hospital. Nicol, the pedi-

atric endocrinologist, likewise testified to the symptoms of

diabetic ketoacidosis and that the failure to seek medical

care would “constitute a gross deviation from the standard of

care that you would expect from a reasonable person in that

situation[.]”

I agree with the majority that the two doctors could

assist the jury in understanding the symptoms of diabetic

ketoacidosis and that Nicol could assist the jury in under-

standing the typical response she sees from caregivers who

encounter such symptoms in their children. Such testimony

was outside the jury’s expertise and could help the jury per-

form its task of determining the standard of care. But in pro-

ceeding to opine that it was a gross deviation from the stan-

dard of care for a parent (or other responsible person) to not

seek medical care when a child is presenting the symptoms

Cite as 300 Or App 44 (2019) 67

of diabetic ketoacidosis, Nelson and Nicol went too far: They

opined that a person in defendant’s situation deviated from

the standard of care necessary (that is, if a person knew of

the risk and disregarded it or should have known of the risk)

to establish that the person was criminally culpable for a

child’s death. The doctors lacked specialized understanding

or knowledge to make that assessment; they usurped the

jury’s task rather than assisting it.

The assessment of “gross deviation” requires a

decision by the jury that involves an appraisal of the defen-

dant’s culpability based on qualitative factors that is out-

side the ambit of medical expertise. Indeed, that assess-

ment requires an analysis of what an ordinary parent—that

is, a parent without the benefit of medical training or

experience—should have done; allowing an expert (no more

qualified than the jury members) to make that determina-

tion for the jury is particularly unhelpful.

We have upheld the allowance of testimony as to

complex matters outside the jury’s expertise. See, e.g., State

v. Nistler, 268 Or App 470, 487, 342 P3d 1035 (2015) (allow-

ing expert testimony as to the regulation of securities and

whether the transaction at issue was part of a “common

enterprise”). In Nistler, to determine whether the trans-

actions at issue were securities, a four-element test for an

investment contract had to be met, including whether the

transaction was part of a “common enterprise,” which in

turn required “horizontal commonality.” Id. at 483. As we

explained, that factual finding which the jury was tasked

with making was the “archetype” of a situation requiring

“enlightenment from those having a specialized under-

standing of the subject involved in the dispute.” Id. at 486

(quoting Legislative Commentary to OEC 702, reprinted in

Laird C. Kirkpatrick, Oregon Evidence § 702.02, 619 (6th

ed 2013) (emphasis omitted)). Put another way, the expert’s

testimony in Nistler was helpful because the “regulation

of securities is not within the purview of the ‘untrained

layman’—nor, for that matter, most legally trained profes-

sionals.” Id. at 486.

In this case, however, the jury’s task—finding that

the deviation from a reasonable standard of care was enough

68 State v. Rossiter

to constitute criminal negligence or recklessness—was nei-

ther complex nor outside of the purview of an “untrained

layman.” To be sure, the medical experts’ testimony was

helpful to establish how the victim died, how the symp-

toms of diabetic ketoacidosis would have presented, and

that timely medical intervention would have prevented her

death. However, the jury members were well-qualified by

their life experiences, judgment, and ability to assess the

evidence and to answer the question whether the failure to

heed those exhibited symptoms was a gross deviation from

the standard of care. In this instance, no “enlightenment”

was needed to determine the issue of criminal culpability—

and allowing the medical experts to opine on that issue sug-

gested that medical expertise was necessary to resolve it

and held the potential to improperly influence a determina-

tion that belonged to the jury alone.

Accordingly, I would conclude that the opinions of

Nelson and Nicol were clearly unhelpful under OEC 702 and

that their admission was an “obvious” error that is not “rea-

sonably in dispute.”

Before discussing why I would exercise Ailes discre-

tion to correct the trial court’s failure to disallow Nelson’s

and Nicol’s challenged testimony, I address why I would

conclude that their unhelpful testimony was not “otherwise

admissible” as not unduly prejudicial under OEC 403. Ailes

v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991).

That evidence rule provides:

“Although relevant, evidence may be excluded if its pro-

bative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay or needless pre-

sentation of cumulative evidence.”

Because defendant primarily relies on State v. Southard,

347 Or 127, 218 P3d 104 (2009), to support her argument

that the medical experts’ testimony was unduly prejudicial,

I turn to that decision.

In Southard, the Supreme Court decided whether a

medical diagnosis of child sexual abuse is admissible scien-

tific evidence when there is no physical evidence of sexual

abuse. 347 Or at 129-31. To assess the probative value of the

Cite as 300 Or App 44 (2019) 69

medical diagnosis, the court first concluded that the diag-

nosis—based on procedures that included interviews, the

child’s history, and guidelines—was valid scientific evidence.

Id. at 139. Despite the scientific validity of the evidence, the

court, when deciding whether the trial court erred under

OEC 403 by admitting the diagnosis, reasoned that, in

“determining the probative value of the doctor’s ultimate

conclusion of sexual abuse, we note that her diagnosis did

not tell the jury anything that it was not capable of deter-

mining on its own. As noted above, whether defendant

caused the boy to engage in oral sex (and thus sexually

abused him) does not present the sort of complex factual

determination that a lay person cannot make as well as an

expert.”

Id. at 140. Because the record lacked physical evidence of

abuse, the jury’s finding of sexual abuse rested on credibility

determinations, and “the doctor’s diagnosis * * * did not tell

the jury anything that it was not equally capable of deter-

mining, the marginal value of the diagnosis was slight.” Id.

Further, the

“risk of prejudice * * * was great. The fact that the diag-

nosis came from a credentialed expert, surrounded by the

hallmarks of the scientific method, created a substantial

risk that the jury ‘may be overly impressed or prejudiced

by a perhaps misplaced aura of reliability or validity of

the evidence.’ * * * [T]he diagnosis is particularly problem-

atic because the diagnosis, which was based primarily on

an assessment of the boy’s credibility, posed the risk that

the jury will not make its own credibility determination,

which it is fully capable of doing, but will instead defer to

the expert’s implicit conclusion that the victim’s reports of

abuse are credible.”

Id. at 140-41; see id. at 142 (quoting Christopher B. Mueller

& Laird C. Kirkpatrick, 3 Federal Evidence § 7:9, 810-13 (3d

ed 2007) (“Where the issue and subject are ones lay jurors

can appreciate and evaluate by applying common knowl-

edge and good sense, admitting expert testimony seems the

wrong thing to do and may warrant reversal if it is likely

to dissuade the jury from exercising its own independent

judgment or if it effectively takes over the jury’s traditional

function to judge the credibility of witnesses.”).

70 State v. Rossiter

Here, Nelson’s and Nicol’s challenged testimony

had scant probative value. The jury was required to assess

the degree of deviation from the standard of care to support

a finding of recklessness or criminal negligence, and that

assessment was one that did not require assistance from

the medical experts. Nor were the medical experts helpful

in that regard. Not unlike the encroachment in Southard

on the jury’s exclusive role in determining credibility, the

challenged testimony in this case likewise “did not tell

the jury anything that it was not capable of determining

on its own.” 347 Or at 140. That is, the degree of devia-

tion from the standard of care was an assessment that the

jurors could “ ‘appreciate and evaluate by applying common

knowledge and good sense.’ ” Id. at 142 (quoting Mueller and

Kirkpatrick, 3 Federal Evidence § 7:9, 810-13). In this case,

the jury was “equally capable” of assessing whether there

was a gross deviation from the standard of care, and the tes-

timony that encompassed that finding had little probative

value.

As to unfair prejudice, the state finished its direct

examinations of Nelson and Nicol by summarizing the

symptoms associated with diabetic ketoacidosis and then

asking whether the failure to seek medical care was a gross

deviation from the standard of care expected from a rea-

sonable person in defendant’s situation. Because those final

opinions as to the degree of deviation from the standard of

care were significantly tied to testimony that had an “aura

of reliability or validity,” that connection created a “sub-

stantial risk that the jury may be overly impressed or preju-

diced.” Consequently, because I believe that the risk that the

jury would defer to that testimony substantially outweighed

its minimal probative value, I would conclude that it was

unfairly prejudicial under OEC 403.

Finally, I address why I would exercise discretion to

correct the trial court’s failure to sua sponte exclude the chal-

lenged testimony. It is a longstanding principle that “only

in rare and exceptional cases” will we “notice an alleged

error where no ruling has been sought by the trial judge.”

Hotelling v. Walther, 174 Or 381, 385, 148 P2d 933 (1944). An

appellate court’s decision to exercise its discretion to address

an unpreserved claim of error “should be made with utmost

Cite as 300 Or App 44 (2019) 71

caution” because “[s]uch action is contrary to the strong pol-

icies requiring preservation and raising of error.” Ailes, 312

Or at 382. The Ailes court articulated the following factors

as relevant to the exercise of plain-error discretion:

“[I]n deciding whether to exercise its discretion to consider

an error of law apparent on the face of the record, among

the factors that a court may consider are: the competing

interests of the parties; the nature of the case; the grav-

ity of the error; the ends of justice in the particular case;

how the error came to the court’s attention; and whether

the policies behind the general rule requiring preservation

of error have been served in the case in another way, i.e.,

whether the trial court was, in some manner, presented

with both sides of the issue and given an opportunity to

correct any error. Those factors do not comprise a neces-

sary or complete checklist; they merely are some of the per-

missible considerations.”

Id. at 382 n 6 (citations omitted). Considering those factors,

I would conclude that we should exercise our discretion to

correct the errors in this case.

To begin with, the gravity of the errors and the

ends of justice in this case weigh in favor of exercising dis-

cretion to correct, because the errors concerned the piv-

otal disputed issue. Defendant’s position was that it was

reasonable for her to believe that the victim was sick with

the flu—a non-life-threatening illness that afflicted other

family members and church members on the day the vic-

tim died. Nelson’s and Nicol’s opinions formed the core of

the state’s case that the victim died of diabetic ketoacidosis,

that the symptoms of that condition would have appeared

to a lay person as serious, and that, had defendant obtained

medical care for the victim, she would have survived. From

that testimony, the jurors could have arrived at the conclu-

sion that defendant’s failure to obtain medical care for the

victim consciously disregarded or failed to be aware of the

risk that the victim would die and was a “gross deviation

from the standard of care that a reasonable person would

observe in the situation.” The prosecutor acknowledged that

that particular issue was a “difficult” one, particularly in

light of the circumstances of the case, which the prosecu-

tor acknowledged as a “tragedy” and that he “honestly * * *

72 State v. Rossiter

believe[d defendants] were surprised when” their daughter

died. Such testimony would have been in the realm of what

is allowed under Madrid v. Robinson, 324 Or 561, 568, 931

P2d 791 (1997), relied on by the majority.

But here, the testimony ventured further into an

area that was “clearly” within the jury’s understanding and

therefore improper. By opining that failing to recognize the

risk that they had described amounted to a “gross deviation”

from the standard of care, the medical experts provided

an additional—potentially persuasive—basis which jurors

could lean on to make that emotionally difficult assessment.

See State v. Ramirez, 343 Or 505, 513, 173 P3d 817 (2007)

(consideration of the likelihood that the error affected the

outcome of the proceeding below for determination of the

gravity of the error).39

That is especially true because Nelson’s and Nicol’s

impermissible opinions were not ones that a juror was likely

to overlook. Both opinions were offered at the conclusion of

the medical experts’ testimony on direct examination and

were presented as a summary of their previous helpful and

admissible testimony. Further, the effect of those opinions

was magnified by the fact that the two medical experts

agreed with each other by providing essentially identical

conclusions. In such a case, it is unlikely that the opinions

would have been easily dismissed by the jury.

I also would conclude that defendant’s failure to

preserve the arguments she raises on appeal was not a plau-

sible tactic to advance her defense. See State v. Fults, 343 Or

515, 523, 173 P3d 822 (2007) (the “possibility that defendant

made a strategic choice not to object” is a factor a court may

consider). Defendant did make objections to the challenged

opinion testimony, albeit on grounds other than the ones

made on appeal, so defense counsel’s failure to object on the

grounds defendant now raises was not an attempt to avoid

drawing attention to the opinions or emphasizing their sig-

nificance. It is more plausible to conclude that counsel was

39

The first-degree manslaughter verdict was not unanimous, and an error

“is more likely to be considered grave when the case is a close one, as reflected by

a split jury verdict to convict.” State v. Inman, 275 Or App 920, 959, 366 P3d 721

(2015) (Sercombe, J., dissenting).

Cite as 300 Or App 44 (2019) 73

either unaware of the correct arguments necessary to chal-

lenge that testimony or believed that the trial court would

again overrule the “ultimate issue” objection.

For all of those reasons, I would conclude that

Nelson’s and Nicol’s testimony was not “otherwise admissi-

ble” under OEC 702 because it was unhelpful expert opin-

ion testimony and also unfairly prejudicial, and therefore

that its admission constitutes an error apparent on the face

of the record. I would exercise our discretion to correct the

error, given its gravity.

Accordingly, I dissent.