State v. Rossiter

• Decision Date: 16 October 2019
• Docket Number: A158920
• Citation: 300 Or.App. 44,453 P.3d 562
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Wenona ROSSITER, Defendant-Appellant.
• Court: Oregon Court of Appeals

300 Or.App. 44

453 P.3d 562

STATE of Oregon, Plaintiff-Respondent,

v.Wenona ROSSITER, Defendant-Appellant.

A158920

Court of Appeals of Oregon.

Argued and submitted March 16, 2017.

October 16, 2019

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.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Wilson, Senior Judge.

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 standard of care applicable to a parent or caregiver in defendant’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 statutorily 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 suffered from Type I diabetes

and that diabetic ketoacidosis caused her death. At the time of her death, S had been sick 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 medical treatment caused S’s death, and that both parents acted either recklessly (making S’s death first-degree manslaughter) 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 negligent 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 members 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 defendant would not do so unless a child asked to be taken to 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 convictions 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 religious conviction. Absent any evidence of the parents’ religious 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 conclusion 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 evidence 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 medicine, and that, consistent with those beliefs, she would not seek medical treatment for a child unless the child asked.

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 testified about the progression of untreated diabetic ketoacidosis

. 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 emergency. 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 medical emergency to a layperson. Nicol testified that a person 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 symptoms of advanced diabetic ketoacidosis would create a substantial 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 taking 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 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 opinion 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...