State v. Horn-Garcia

• Decision Date: 08 June 2022
• Docket Number: A172863
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Sacora HORN-GARCIA, aka Sacora Garcia, aka Sacora Horn, Defendant-Appellant.
• Court: Oregon Court of Appeals

320 Or.App. 100

513 P.3d 47

STATE of Oregon, Plaintiff-Respondent,

v.Sacora HORN-GARCIA, aka Sacora Garcia, aka Sacora Horn, Defendant-Appellant.

A172863

Court of Appeals of Oregon.

Argued and submitted February 22, 2022.

June 8, 2022

Harrison Latto, Portland, argued the cause and filed the reply brief for appellant. On the opening brief was Daniel J. Casey.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Salem, and Benjamin Gutman, Solicitor General, Salem.

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

AOYAGI, J.

Defendant was convicted of one count of murder by abuse, ORS 163.115(1)(c)(B) (2015), amended by Or. Laws 2019, ch. 634, § 28; Or. Laws 2019, ch. 635, § 4,¹ and one count of first-degree criminal mistreatment, ORS 163.205(1)(a), after her five-year-old stepdaughter, M, starved to death. On appeal, she raises five assignments of error. She argues that the trial court erred by (1) allowing certain testimony by an emergency room physician; (2) denying her motion for judgment of acquittal on the murder-by-abuse charge; (3) instructing the jury that murder by abuse is not a crime that is eligible for the death penalty; (4) declining to give her proposed jury instruction on "extreme indifference to the value of human life"; and (5) instructing the jury on nonunanimous guilty verdicts.² For the following reasons, we affirm.

I. BACKGROUND

This case shares background facts and arises out of the same circumstances described in State v. Garcia , 320 Or. App. 123, 512 P.3d 839 (2022).

Defendant was convicted after a 15-day trial, during which numerous witnesses testified, including defendant and her co-defendant 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 began dating Garcia in summer 2014. At that time, defendant was living with her three daughters from a prior marriage, and Garcia was living with M, his biological niece who he had adopted as a baby. In September 2014, Garcia and M moved in with defendant and her daughters. Defendant and Garcia married in December 2014. Defendant was a "stay-at-home mom" and M's primary caregiver.

The state presented evidence that defendant and 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 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 Garcia to put an alarm on M's bedroom door.

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

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

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

On the morning of December 21, defendant and Garcia exchanged text messages while Garcia was at work.

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

At 10:58 a.m., defendant called 9-1-1. She reported that M was unresponsive, almost unconscious, and possibly not breathing. She further described M as spitting up brown fluid, having stiff hands, and having open but unresponsive eyes.

First responders arrived at 11:05 a.m. They were "shocked" by M's appearance, perceived her to be "extremely underweight," and had never seen a child so underweight.

One first responder described her as looking like a "rack of bones," another as "skeletal looking," and another as "very, very, very emaciated" with all of her ribs showing. M had no heartbeat, her body was fairly stiff and cold to the touch, and her skin was mottled, grayish, and purple. Because they were told that she had just gone down, and because she was a child, they tried for 17 minutes to revive her, but she showed no signs of life. They then took M to the emergency room. The emergency room doctor (Dr. Bouska) 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 her defense was that she did not know that M was not getting enough food, perceived her to be naturally thin and not abnormally so, and did not know that she was starving to death. After hearing all of the evidence, the jury found defendant guilty by unanimous verdicts of murder by abuse and two counts of first-degree criminal mistreatment. The court merged the criminal-mistreatment verdicts. Defendant was sentenced to life imprisonment with a 25-year minimum on the murder conviction and a concurrent 18-month sentence on the criminal-mistreatment conviction. Defendant appeals, raising five assignments of error.

II. ANALYSIS

A. Dr. Bouska's Testimony

As part of the state's case-in-chief, the jury heard testimony from Dr. Bouska, the emergency room physician who treated M on December 21, regarding M's condition when she arrived at the hospital and the efforts made to try to revive her. Most of Bouska's testimony is not at issue. However, on redirect examination, Bouska gave one answer that is the subject of defendant's first assignment of error.

At the end of redirect, the prosecutor asked, "If this patient that was on your table December 21st—if she had arrived 12 hours prior to that time, based on what you saw in front of you, is there something you could've done?" The court overruled a "speculation" objection, which was described as being based on Bouska having "testified he can't sort of reverse-engineer a timeline based on rigor mortis ." The court overruled the objection and instructed the witness that, if he could answer the question, he could answer. The prosecutor repeated the question as, "If [M] had been brought to the hospital sooner, the night before—is there something that you could have done in the emergency room?" Bouska answered, "To the best of my knowledge and training, I would say that the—she would have likely been alive at that time and we would've been able to evaluate for, if there was something wrong at that time, how to reverse it."

Defendant contends that the trial court erred in overruling the "speculation" objection. Specifically, she argues that Bouska's opinion that M "likely would have been alive" 12 hours earlier was speculative because Bouska admitted that he was unable to pin down M's exact time of death, which was the subject of heavy cross-examination. And she argues that the rest of Bouska's answer implied that M's...