State v. Sells

29

Submitted February 23, 2021, affirmed February 1, petition for review denied

July 20, 2023 (371 Or 308)

STATE OF OREGON,

Plaintiff-Respondent,

v.

AMBER ELLEN SELLS,

Defendant-Appellant.

Josephine County Circuit Court

17CR25302; A171406

524 P3d 517

Defendant appeals a judgment of conviction for murder in the second degree

with a firearm, ORS 163.115; ORS 161.610. She asserts that the trial court erred

in refusing to consider the impact that her methamphetamine intoxication had

on the mental state element of the offense. She argues that the trial court’s speak-

ing verdict demonstrated that the court believed voluntary intoxication was not

available to negate the mental state required for murder, in direct conflict with

ORS 161.125(1), which allows the finder of fact to consider evidence of drug use,

dependency, or intoxication, “whenever it is relevant to negat[e] an element of

the crime charged.” Held: The trial court did not err. Although at times the trial

court may have improperly used the term “a defense” to mean both a complete

defense to the charges (as prohibited by the statute) and a defense theory that

negated the mental state (as permitted by the statute), the trial court, in its

speaking verdict, expressly considered defendant’s evidence of voluntary intoxi-

cation before it found that defendant had formed the intent to murder the victim.

Affirmed.

Thomas M. Hull, Judge.

Lindsey Burrows and O’Connor Weber LLC filed the

brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Joanna Hershey, Assistant Attorney

General, filed the brief for respondent.

Before Mooney, Presiding Judge, and Hellman, Judge,

and DeVore, Senior Judge.

HELLMAN, J.

Affirmed.

30 State v. Sells

HELLMAN, J.

Defendant appeals a judgment of conviction for

murder in the second degree with a firearm, ORS 163.115;

ORS 161.610, entered after a trial to the court. On appeal,

she asserts that the trial court erred in refusing to con-

sider the impact that her methamphetamine intoxication

had on the mental state element of the offense. Specifically,

defendant argues that the trial court’s speaking verdict

demonstrated that the court believed voluntary intoxication

was not available to negate the mental state required for

murder, in direct conflict with ORS 161.125(1).1 The state

responds that defendant’s asserted error is not preserved

and that we should not exercise our discretion to review it

for plain error. For the reasons explained below, we agree

with defendant that the error was preserved. However, we

disagree with defendant that the trial court misapplied the

law. Accordingly, we affirm.

Because the question in this case involves whether

the trial court correctly understood the law, we examine

the record in some detail, focusing on the portions of the

record that involve the issue of intoxication and its possi-

ble relevance to defendant’s trial. The relevant facts of this

case are undisputed and mostly procedural. Defendant shot

and killed the victim while high on methamphetamine.

Defendant was arrested and subsequently charged with

murder with a firearm, ORS 163.115 and ORS 161.610.2

The issue of defendant’s voluntary intoxication

first arose in defendant’s pretrial motion to postpone the

trial. One reason trial counsel gave for needing additional

time was that he had “secured the services of an expert

1

ORS 161.125(1) provides:

“The use of drugs or controlled substances, dependence on drugs or con-

trolled substances or voluntary intoxication shall not, as such, constitute a

defense to a criminal charge, but in any prosecution for an offense, evidence

that the defendant used drugs or controlled substances, or was dependent

on drugs or controlled substances, or was intoxicated may be offered by

the defendant whenever it is relevant to negative an element of the crime

charged.”

2

ORS 163.115(1) provides, in relevant part:

“[C]riminal homicide constitutes murder in the second degree * * * [w]hen it

is committed intentionally[.]”

Cite as 324 Or App 29 (2023) 31

consultant and likely trial witness * * * in connection with

the [evidence of defendant’s intoxication] as [the evidence]

potentially relate[s] to voluntary intoxication and culpa-

ble mental state.” The state did not object, and the court

granted the motion.

The issue next arose in litigation surrounding the

state’s pretrial motion to exclude lay witness testimony. In a

written motion, the state asked the court to “prohibit[ ] the

defendant from offering testimony from lay witnesses that:

1) the defendant suffers from a mental illness; and 2) that

the defendant engaged in odd behavior prior to the murder.”3

At the hearing on the motion, defense counsel stated that he

wanted to consult an expert to “look at the case in terms of

voluntary intoxication and mental state.” He requested that

the court not rule on the motion until “I know more about

what [the expert] might say about voluntary intoxication or

the effects—possible combined effects of the psychotic drug

and methamphetamine [as well as how] voluntary intoxi-

cation potentially relates to defraying [the] intentionality

and knowingly [elements of the offense].” He then provided

the court with various hypothetical situations in which lay-

person testimony would be relevant to the defense. The court

responded with its own hypothetical stating, “[T]he most

direct circumstance would be [a lay witness stating] that

I saw her snort or consume[ ] methamphetamine an hour

before [the killing]. I don’t see that as a defense.” Defense

counsel responded, “Voluntary intoxication bears on intent

* * *[.]”

At trial, defendant admitted that she shot the vic-

tim. Her defense was that there was insufficient evidence

to conclude beyond a reasonable doubt that she acted with

conscious intent to kill the victim, as is required by ORS

163.115. Instead, she argued that she acted recklessly with

a conscious disregard for human life and therefore had com-

mitted the lesser-included offense of manslaughter.

In advocating for that mental state, defense counsel

highlighted the impact of methamphetamine intoxication on

defendant’s ability to form intent. During cross-examination

3

The state also filed a motion for a psychiatric evaluation of defendant.

Defendant stipulated to that motion.

32 State v. Sells

of Dr. Penumetcha, the state’s expert psychiatrist, the par-

ties and the court engaged in the following colloquy:

“[DEFENSE COUNSEL]: All right. Dr. Penumetcha,

you testified quite clearly for [the state] that * * * there was

nothing to bar [defendant] from forming the intent to kill?

“[DR. PENUMETCHA]: Psychiatrically, yes.

“[DEFENSE COUNSEL]: Thank you. Good qualifica-

tion there. Can substance use or abuse prevent or inhibit

the forming of that intent?

“[DR. PENUMETCHA]: No.

“[DEFENSE COUNSEL]: They cannot?

“[DR. PENUMETCHA]: Well, substance use, I don’t

think it will affect an individual’s ability to formulate an

intent. I should have been more clear. Sorry.

“[DEFENSE COUNSEL]: Okay. Now, I want to make

sure I have this. So it is your clinical determination

whether or not it corresponds with current Oregon law, it is

your clinical statement today that the use or abuse of sub-

stances cannot inhibit a person’s capacity to form intent?

“[DR. PENUMETCHA]: So I think if—we’re generaliz-

ing a bit here, when someone uses a substance and becomes

psychotic, they can be unable to formulate an intent. I’m

being more narrow and specific that substance use in itself,

meaning that if someone takes methamphetamine, it does

not affect their ability to formulate an intent.

“[DEFENSE COUNSEL]: Does it prevent their capac-

ity to form an intent?

“[DR. PENUMETCHA]: No, it doesn’t affect their—

“[DEFENSE COUNSEL]: Can it inhibit their capacity

to form intent?

“[DR. PENUMETCHA]: That’s—

“[DEFENSE COUNSEL]: Can it mar their capacity to

form intent?

“[DR. PENUMETCHA]: No.

“[DEFENSE COUNSEL]: How about alcohol?

“[PROSECUTOR]: Objection, relevance.

Cite as 324 Or App 29 (2023) 33

“THE COURT: I’m not sure what you’re trying to

compare.

“[DEFENSE COUNSEL]: All right. I’ll go another

direction. Substances—

“THE COURT: And what’s—

“[DEFENSE COUNSEL]: —of any kind inclu—

“THE COURT: What’s ringing in my head is your first

question about that you’re asking—

“[DEFENSE COUNSEL]: Well, I’m trying to find a

way to—

“THE COURT: —with regard to the fact that it’s not a

defense. But you go right ahead and keep asking. Go ahead.

“[DEFENSE COUNSEL]: Well, I mean, there is—

“THE COURT: Well, I’m not asking you to explain it

for me—

“[DEFENSE COUNSEL]: Sure. Yes, Judge.

“THE COURT: I’m just telling you—

“[DEFENSE COUNSEL]: We’ll argue about that, yes.

“THE COURT: —that I’m thinking about that and I’m

sure it’ll become an argument. Go ahead.”

During closing argument, defense counsel asked

the court to consider the effect of defendant’s intoxication on

the mens rea element of the offense.

“We are pointing you to, however, the existence of men-

tal health issues, including personality disorders, metham-

phetamine, her history as they contribute to whether or not

she formed the intent, period, Judge, necessary for mur-

der. In conjunction with the voluntary intoxication defense

in which you are able to take * * * into consideration as to

whether or not she had a qualifying disorder for purposes

of intent or lack thereof.”

Defense counsel then pointed out the inconsistency between

Penumetcha’s testimony, and the standard jury instruction

which permits a jury to consider a person’s voluntary intoxi-

cation in evaluating the defendant’s state of mind:

“But when pressed, [Dr. Penumetcha] insisted that no

amount of intoxicants, here meth, could ever impact or

34 State v. Sells

limit the person’s capacity to form intent. To mitigate it,

potentially to recklessness. That’s contrary to the standard

jury instruction on voluntary intoxication, which permits,

in cases of intentional or knowing, not reckless to start * * *

permits the factfinder to take into consideration—specif-

ically take into consideration voluntary intoxication as it

might rebut the finding of the appropriate culpable men-

tal state, here intent. And that’s one of the standard jury

instructions I’d recall to the Court’s attention. You know

about it, of course.

“* * * * *

“We question whether Dr. Penumetcha considered or was

even aware of the meaning of intent as applied to the law

and degrees of criminal homicide.”

To illustrate his point, defense counsel offered the

following hypothetical:

“[H]ypothetically, we have some guys—some fellows drink-

ing up on BLM- BLM lands, shooting cans and just par-

tying up there. Intoxicated. One guy’s pretty sure of his

ability with a gun, decides he wants to scare another fellow

and make him jump out of his shorts. Pops off a shot in his

general direction, intending to fire in his general direction,

but intending to scare him and have a gag, a laugh with

the other guys. Instead, it catches the guy in the head and

he’s dead. That’s not murder, Judge, that’s manslaughter.”

The state addressed the issue during its closing

argument:

“Meth-induced psychosis is no defense. Whether or not

she would have made this choice sober has no bearing on

the decision. If the meth caused her to do it, if the meth

made her decide to intentionally take [the victim’s] life, she

is guilty of murder. It doesn’t matter that she would not

have done this when she was sober. It is not an excuse, and

for good reason. We don’t want people killing, we don’t want

people hurting, we don’t want people committing crimes

and then being able to fall back on the excuse of voluntary

intoxication. If you decide to kill because you’ve taken too

much meth, you are still as guilty of murder as if you made

that choice stone-cold sober. And for good reason.

“If you get high on meth and because you’re high on

meth you take a life, you have assumed that risk, and you

Cite as 324 Or App 29 (2023) 35

must bear the consequences of that choice. If you are high

on meth and decide to kill, you have no defense.”

The trial court then entered a speaking verdict in

which it concluded beyond a reasonable doubt that defen-

dant was guilty of murder. The court explained:

“[I]’ll start with psychological issues that [defendant]

did or didn’t have. The psychiatrist made it clear that she

is able to form an intent, which I think she did. We know

that she doesn’t have a mental disease or defect that would

affect her ability. I also note that there could be some psy-

chosis because of her drug use and I appreciate that. I also

understand that voluntary intoxication does not and is not

a defense.

“* * * * *

“Beyond that, as I indicated—as [the state] indicated

yesterday that it’s not a defense. Where that comes in and

where it can have an impact, for example, was the two

drunken folks [and] one tries to shoot somebody close or

comes close and actually has an accident. I think that’s an

accident. I don’t think that’s showing—as long as that indi-

vidual had an intent to kill, I think that’s all that’s neces-

sary. And they didn’t in your * * * example[.]”

PRESERVATION

We first address the state’s contention that defen-

dant’s argument is not preserved. The state argues that

to preserve the argument, defense counsel was required

to object to the trial court’s speaking verdict after it was

issued. We disagree.

“[T]he primary purposes of the preservation rule

are to allow the trial court to consider a contention and cor-

rect any error, to allow the opposing party an opportunity

to respond to a contention, and to foster a full development

of the record.” State v. Clemente-Perez, 357 Or 745, 752, 359

P3d 232 (2015). The Supreme Court, however, has cautioned

that “problems * * * may arise if the preservation onion is

sliced too thinly.” State v. Amaya, 336 Or 616, 629, 89 P3d

1163 (2004). Thus, “[p]recisely what is required [for preser-

vation] may vary with the individual circumstances of each

case.” State v. K. J. B., 362 Or 777, 790, 416 P3d 291 (2018).

36 State v. Sells

“In some circumstances, a fairly abbreviated short-

hand reference may suffice to put the trial court and

the parties on notice of the nature of the argument.” Id.

Nevertheless, to be adequately preserved, the reference

“must be used in a way and context in which the other par-

ties and the court would understand that the word or phrase

refers to a particular legal or factual argument, and also

would understand from that single reference the essential

contours of the full argument.” State v. Haynes, 352 Or 321,

335, 284 P3d 473 (2012).

An objection is not the only method by which a

defendant may preserve an argument for appeal. See, e.g.,

State v. Sorrow, 312 Or App 40, 44-45, 489 P3d 1127 (2021)

(explaining that where the defendant raises an issue, the

state responds, and the trial court, in its verdict, offers an

explanation as to why it agreed with the state, the issue

is “adequately raised and ruled on, and, consequently, pre-

served”); State v. Nicholson, 282 Or App 51, 54-55, 383 P3d

977 (2016) (concluding an objection by defense counsel is not

necessary for preservation when defense counsel raised the

issue in closing argument, the prosecutor understood and

engaged with that issue, and the court endorsed the state’s

legal position). See also, State v. Satterfield, 274 Or App 756,

759, 362 P3d 728 (2015), rev den, 358 Or 794 (2016) (conclud-

ing that where defense counsel’s argument throughout trial

was consistent with his argument on appeal and where his

closing argument “[drew] the court’s attention to the correct

rule,” the argument was preserved). Additionally, in a bench

trial, a defendant may preserve an issue by submitting jury

instructions to the court and allowing the court “to instruct

itself on the correct version of the law, thereby creating a

record that allows us to review whether the court applied

the correct principles of law in reaching its verdict.” State v.

Colby, 295 Or App 246, 252, 433 P3d 447 (2018).

Here, defense counsel repeatedly raised the issue of

voluntary intoxication as it relates to the mental state ele-

ment of the offense. The state responded to that issue during

its closing argument, and the trial court addressed the issue

during its speaking verdict. That sequence of events, alone,

would be sufficient to preserve defendant’s argument for

Cite as 324 Or App 29 (2023) 37

appeal. See Nicholson, 282 Or App at 54-55; Sorrow, 312 Or

App at 44-45.

In addition, here, like in Satterfield, 274 Or App at

759, defense counsel’s argument throughout trial was con-

sistent with his argument on appeal, and defense counsel

called the court’s attention to the applicable statute during

closing argument, noting that Penumetcha’s testimony was

“contrary to the standard jury instruction on voluntary

intoxication, which permits, * * * the factfinder to take into

consideration * * * voluntary intoxication as it might rebut

the finding of the appropriate culpable mental state, here

intent.”

We conclude that the purposes of preservation were

met in this case. Although some of defense counsel’s refer-

ences to the issue could be characterized as abbreviated,

we cannot say that “other parties and the court would [not]

understand” that defense counsel was “refer[ing] to a par-

ticular legal or factual argument.” Haynes, 352 Or at 335.

Nor can we say that the state was “taken by surprise, mis-

led, or denied opportunities to meet an argument.” Davis v.

O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995).

Because we conclude that defendant’s argument is

preserved, we need not exercise our discretion to review for

plain error. Instead, because the facts relevant to the legal

issue that we address are undisputed, we review the trial

court’s application of law to the facts for legal error. State v.

Ehly, 317 Or 66, 75, 854 P2d 421 (1993).

LEGAL ANALYSIS

Defendant argues that the trial court misapplied

ORS 161.125(1) when it summarily concluded that “volun-

tary intoxication is not a defense” and refused to consider

the broader issue of the effect of voluntary intoxication on

defendant’s ability to form intent. Under ORS 161.125(1),

“[t]he use of drugs or controlled substances, dependence

on drugs or controlled substances or voluntary intoxica-

tion shall not, as such, constitute a defense to a criminal

charge, but in any prosecution for an offense, evidence

that the defendant used drugs or controlled substances, or

was dependent on drugs or controlled substances, or was

38 State v. Sells

intoxicated may be offered by the defendant whenever it is

relevant to negative an element of the crime charged.”

The trial court was thus correct that voluntary

intoxication is not “a defense” as that term is defined in the

statute. But the inquiry does not stop there. ORS 161.125(1)

states that voluntary intoxication “shall not, as such, con-

stitute a defense to a criminal charge[.]” (Emphasis added.)

That phrase must be read in connection with the next part

of the sentence which states that evidence of voluntary

intoxication “may be offered * * * whenever it is relevant to

negat[e] an element of the crime charged.” Id. The latter

half of the sentence establishes that evidence of voluntary

intoxication can be considered to determine the defendant’s

mental state at the time of an offense. Practically speaking,

then, voluntary intoxication is not “a defense” that would

allow a defendant avoid responsibility for criminal conduct

altogether. However, it is potentially relevant to the defen-

dant’s state of mind and could lead to a conviction for a

crime such as manslaughter, which reflects a lesser degree

of criminal culpability than intentional murder.

The concern in this case is that the trial court may

have improperly used the term “a defense” to mean both a

complete defense to the charges (as prohibited by the stat-

ute) and a defense theory that negated the mental state (as

permitted by the statute).

Indeed, there were several times in the pretrial and

trial proceedings where the trial court appeared to conflate

both parts of the statute. For example, when the issue of

defendant’s voluntary intoxication arose during a pretrial

hearing on the state’s motion to exclude lay testimony, the

trial court stated, “I don’t see that as a defense.” When

defense counsel reminded the court that “voluntary intox-

ication bears on intent,” the court responded, “I guess I’m

more—it may be a rhetorical question for you to think about

whether somebody can use that as a defense.”

In addition, during cross-examination, the state’s

expert testified that when someone uses substances “they

can be unable to formulate intent,” but that substance use,

in and of itself, does not affect an individual’s ability to form

intent or inhibit their capacity to form intent. The state

Cite as 324 Or App 29 (2023) 39

objected, citing relevance. In sustaining the objection, the

trial court cautioned defense counsel against continuing to

explore that issue, explaining that “What’s ringing in my

head is * * * the fact that it’s not a defense.”

Finally, in its speaking verdict, the trial court

referred favorably to the state’s closing argument that vol-

untary intoxication is not “a defense.” However, based on its

characterization of defense counsel’s hypothetical in that

context, the trial court seemingly did not recognize that

defense counsel had offered evidence of voluntary intoxica-

tion to lessen, not eliminate, criminal culpability.

In those examples, the trial court responded to

defendant’s arguments about a lack of intent with a com-

ment about the unavailability of “a defense.” Those com-

ments could be read as the trial court eliminating the pos-

sibility that voluntary intoxication could be used to lessen,

but not eliminate, defendant’s criminal culpability. That, of

course, would be incorrect under ORS 161.125(1).

If those were the only statements in the record

regarding the trial court’s engagement with the voluntary

intoxication issue, we may very well have agreed with defen-

dant that the trial court misapplied the law. But they are

not the only statements. When it announced its verdict,

the trial court explicitly found that defendant had formed

the required intent, stating “the psychiatrist made it clear

that she is able to form an intent, which I think she did.”

(Emphasis added.) The trial court also indicated that it had

considered the evidence of defendant’s voluntary intoxica-

tion, stating that “there could be some psychosis because of

her drug use and I appreciate that.” In light of those clear

statements in the speaking verdict, we do not read the trial

court’s next statement that “voluntary intoxication does not

and is not a defense” as a misstatement of the law. Although

the trial court may have been focused on the first part of

the statute for most of the trial, in announcing its verdict it

did consider defendant’s evidence of voluntary intoxication

before finding that defendant formed the intent to murder

the victim.

Affirmed.