State v. Garcia

Decision Date08 June 2022
Docket NumberA172910
Citation320 Or.App. 123,512 P.3d 839
Parties STATE of Oregon, Plaintiff-Respondent, v. Estevan Adrian GARCIA, Defendant-Appellant.
CourtOregon Court of Appeals

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Kistler, Senior Judge.


Defendant was convicted of one count of murder by abuse, ORS 163.115(1)(c)(B) (2015), amended by Or. Laws 2019, ch. 634, § 28; Or. Laws 2019, ch. 635, § 4,1 and one count of first-degree criminal mistreatment, ORS 163.205(1)(a), after his five-year-old daughter, M, starved to death. On appeal, he raises five assignments of error. He argues that the trial court erred by (1) dismissing two manslaughter charges before trial; (2) allowing certain testimony by a pediatrician; (3) allowing certain testimony by an emergency room physician; (4) denying defendant's motion for judgment of acquittal on the murder-by-abuse charge; and (5) instructing the jury on nonunanimous guilty verdicts. For the following reasons, we affirm.


This case shares background facts and arises out of the same circumstances described in State v. Horn-Garcia , 320 Or. App. 100, ––– P.3d –––– (2022).

Defendant was convicted after a 15-day trial, during which numerous witnesses testified, including defendant and his co-defendant Horn-Garcia, and many exhibits were admitted, including photographs, audio and video recordings, extensive text messages, and medical records. A detailed recitation of the trial evidence would serve little purpose here. Instead, we provide only a very brief overview for context.

Defendant adopted M, his biological niece, in 2012 when she was a baby. In summer 2014, defendant began dating Horn-Garcia. Defendant and M moved in with Horn-Garcia and her three daughters from a prior marriage in September 2014, and defendant and Horn-Garcia married in December 2014. Defendant worked at a local grocery store to support the family, while Horn-Garcia was a "stay-at-home mom" and M's primary caregiver.

The state presented evidence that defendant and Horn-Garcia treated M differently from the other children, including withholding food from M as a form of discipline, denying M access to food, and requiring M to ask to be fed. Text messages between defendant and Horn-Garcia showed that M's eating habits and the withholding of food from her were frequent subjects of discussion. There was evidence that M would try to get food during the night and otherwise, prompting defendant and Horn-Garcia to put an alarm on M's bedroom door.

M's weight, which historically had been normal for her age (and had been on an upward trajectory), began to drop. In February 2016, at aged four, M weighed a pound less than she had weighed 10 months earlier. In March 2016, M saw her pediatrician for a "well child" visit, and she had lost another pound. The pediatrician was concerned that M was losing weight and directed Horn-Garcia to increase M's caloric intake and to bring her back for a follow-up weight check. At her follow-up weight check in May 2016, M weighed 31.97 pounds, a 2.2-pound weight gain since her last visit, which confirmed that the issue was inadequate caloric intake. Horn-Garcia was told to continue giving M additional calories, and there is evidence that that information was relayed to defendant.

The state presented evidence that M was visibly emaciated during the summer and fall of 2016, including photographs, and that various people expressed concern about M's weight to defendant and Horn-Garcia. Although other children in the household were taken to the doctor during that period, M was never taken to the doctor again after May 2016. Meanwhile, defendant and Horn-Garcia were experiencing marital problems, and they were also adopting a baby.

According to defendant and Horn-Garcia, M had been in good health and behaving normally until approximately December 16, 2016, when M became sick with "flu-like" symptoms. She was vomiting, shaky, and tired; had a "wet cough"; was not keeping food or water down; and started to look like she had sunken cheeks. Neither defendant nor Horn-Garcia sought medical care for M.

On the morning of December 21, defendant and Horn-Garcia exchanged text messages while defendant was at work. During that exchange, at 8:46 a.m., defendant asked Horn-Garcia whether she would "feel scared taking [M] into urgent care," where "most likely they would just swab her nose to see if she has the flu." Horn-Garcia responded, "I don't know." Defendant responded, "To me urgent care is always less professional like there doctors are always laid back." Approximately half-hour later, at 9:19 a.m., Horn-Garcia texted defendant, "Alright, I think she def needs to go in today." Defendant responded "okay" a few minutes later. At 10:44 a.m., he added, "Might be good to go down there with all the kids to show they are healthy." At 10:47 a.m., Horn-Garcia texted defendant that he needed to come home and they needed to take her in. She then called defendant several times, but he did not answer. At 10.53 a.m., Horn-Garcia texted defendant that it was an "emergency" and that he needed to answer.

At 10:58 a.m., Horn-Garcia called 9-1-1. She reported that M was unresponsive, almost unconscious, and possibly not breathing. She further described M as spitting up brown fluid, having stiff hands, and having open but unresponsive eyes. First responders arrived at 11:05 a.m. They were "shocked" by M's appearance, perceived her to be "extremely underweight," and had never seen a child so underweight. One first responder described her as looking like a "rack of bones," another as "skeletal looking," and another as "very, very, very emaciated" with all of her ribs showing. M had no heartbeat, her body was fairly stiff and cold to the touch, and her skin was mottled, grayish, and purple. Because they were told that she had just gone down, and because she was a child, they tried for 17 minutes to revive her, but she showed no signs of life. They then took M to the emergency room. The emergency room physician testified that M was already dead when she arrived, including showing the beginnings of rigor mortis . However, they tried for an hour and a half to revive her, during which she briefly regained a faint pulse, although she showed no other signs of life. M was ultimately declared dead.

At the time of her death, M was five years old and weighed 24 pounds, which is the size of a typical two- or three-year old. Given the "emaciated" and "wasted" condition of M's body, and having ruled out all other possible medical explanations, the medical examiner concluded that M's cause of death was "emaciation," by which she meant "malnutrition or starvation." Among other things, M's autopsy revealed that M had minimal to no body fat stores and elevated levels of urea nitrogen, indicating that she had been burning muscle for energy because she was not consuming carbohydrates from food and had no body fat stores. Her internal organs also were "profound[ly]" deteriorated in size, which is something that occurs with long-term starvation, due to elevated levels of the stress hormone cortisol—and which is "absolutely not" consistent with an otherwise healthy individual getting a bad flu, as it takes "months" to occur.

Defendant was charged in connection with M's death. The thrust of his defense was that he did not know that M was not getting enough food, perceived her to be thin because she was naturally thin as well as growing, and did not know that she was starving to death. After hearing all of the evidence, the jury found defendant guilty by unanimous verdicts of murder by abuse and two counts of first-degree criminal mistreatment. The court merged the criminal-mistreatment verdicts. Defendant was sentenced to life imprisonment with a 25-year minimum on the murder conviction and a concurrent 18-month sentence on the criminal-mistreatment conviction. Defendant appeals, raising five assignments of error.

A. Pretrial Dismissal of Manslaughter Charges

Defendant's first assignment of error pertains to two charges dismissed before trial. Defendant was charged by secret indictment with five crimes: murder by abuse (Count 1); two counts of first-degree manslaughter, on different theories (Counts 2 and 3); and two counts of first-degree criminal mistreatment (Counts 4 and 5). Before trial, the state moved to dismiss Counts 2 and 3 from the indictment, because they were lesser included offenses of murder by abuse. Defendant opposed dismissal.

At a hearing on the motion, the state reiterated its request and noted that defendant had requested that the jury consider several lesser included offenses of murder by abuse, specifically first-degree manslaughter, second-degree manslaughter, and criminally negligent homicide. Defendant explained that his concern was that, if the first-degree manslaughter charges were removed from the indictment, the state might be able to suggest that defendant had "cooked up" the idea of the lesser included offenses, such as by arguing to the jury in closing that it was "ridiculous" to even consider anything less than murder by abuse. Later, defendant added an additional concern that dismissal would prejudice him in light of the "order of deliberations" jury instruction.

The trial court dismissed Counts 2 and 3, stating its reasons on the record but not in its written order. The court stated that the state was "entitled to dismiss any charges that [it did not] wish to proceed on"; that the defense was "entitled to request or not any lesser included offenses"; and that, regardless of how the charges were presented or whether the jury was given...

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2 cases
  • State v. Horn-Garcia
    • United States
    • Oregon Court of Appeals
    • June 8, 2022
    ...we affirm.I. BACKGROUNDThis case shares background facts and arises out of the same circumstances described in State v. Garcia , 320 Or. App. 123, 512 P.3d 839 (2022). Defendant was convicted after a 15-day trial, during which numerous witnesses testified, including defendant and her co-def......
  • State v. Dippre
    • United States
    • Oregon Court of Appeals
    • June 15, 2022

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