State v. Wagner

• Citation: 319 Or.App. 399,509 P.3d 731
• Decision Date: 27 April 2022
• Docket Number: A173918
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Kenneth Sheridan WAGNER, Defendant-Appellant.
• Court: Court of Appeals of Oregon

319 Or.App. 399

509 P.3d 731

STATE of Oregon, Plaintiff-Respondent,

v.Kenneth Sheridan WAGNER, Defendant-Appellant.

A173918

Court of Appeals of Oregon.

Argued and submitted January 18, 2022.

April 27, 2022

Laura A. Frikert, 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.

Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Mooney, Presiding Judge, and Joyce, Judge, and Hadlock, Judge pro tempore.^*

JOYCE, J.

Defendant appeals from a judgment of conviction for multiple offenses, including second-degree assault, strangulation, fourth-degree assault, and menacing. Defendant's convictions stem from his repeated assaults on his domestic partner, including an incident in which defendant put a pillow over her face and also strangled her. In several combined assignments of error, he challenges the trial court's ruling that a detective had the requisite expertise to testify about physical aspects of strangulation and cycles of domestic violence. In his fifth assignment of error, defendant challenges the trial court's denial of his motion for judgment of acquittal on the second-degree assault charge, arguing that no rational trier of fact could conclude that a pillow constitutes a dangerous weapon. In his sixth assignment of error, defendant challenges the trial court's instruction to the jury that it could reach nonunanimous verdicts. In his seventh assignment of error, defendant argues that the trial court committed plain error in imposing a sentence on his second-degree assault conviction that exceeds the statutory maximum sentence. We agree that the trial court erred in imposing sentence on defendant's second-degree assault conviction and remand for resentencing. Otherwise, we affirm.

CHALLENGE TO TRIAL COURT'S RULING ON EXPERT TESTIMONY

In his first through fourth assignments of error, defendant challenges the trial court's conclusion that an investigating detective could offer expert testimony about two categories of evidence: (1) the physical signs and symptoms of strangulation and (2) the cycle of domestic violence and "counterintuitive" victim behavior. We review for legal error, see State v. Brown , 294 Or. App. 61, 62, 430 P.3d 160 (2018), and affirm.

We begin by summarizing all the evidence relevant to the trial court's admission of expert testimony under OEC 702. Id. The victim and defendant were in a relationship. The victim reported several incidents of domestic violence. In one incident, the victim was at defendant's home and they got into an argument after defendant accused the victim of having an affair. At some point, defendant shoved the victim's face into her sweatshirt while he held the back of her head, which impaired her breathing. During that incident, the victim urinated. She recalled then being on her back on a bed and defendant placing a pillow over her face. She felt like she was going to die and she urinated again. The phone rang and defendant left to answer it, allowing the victim to escape and leave the house.

When she returned to her home, the victim's sister-in-law became concerned because the victim's memory appeared to be impaired. She called an ambulance and the victim went to the hospital. Detective Dorsey interviewed the victim at the hospital, and she disclosed several additional incidents in which defendant assaulted her. The victim described an incident where defendant pinned her down on her bed while telling the victim's three children that he was going to kill them. She was able to get up, at which point defendant then pinned her down in the living room.

In another incident, defendant grabbed her by the throat and shoved her backwards. The victim was not able to breathe normally when he first grabbed her neck. The victim also described an assault that occurred when the victim tried to end their relationship. Defendant grabbed the victim and pushed his thumb into her neck, impairing the victim's ability to breathe. After that assault, the victim could not swallow without pain.

The day after her hospitalization and interview with Dorsey, the victim's eyelids were bruised

, her lip was cut, she had bruises on her arms, the back of her neck was swollen, and she had bruises on the front of her neck. She could not move her head without pain and was unable to eat.

As a result of the series of assaults, the state charged defendant with a number of crimes. Before trial, the state filed two memorandums, asking the trial court to allow Dorsey to provide expert testimony (1) that strangulation frequently occurs without bruising and (2) that urination is a common psychological response to strangulation. The state also sought to have the detective testify about cycles of domestic violence and "counterintuitive victim behavior."

At a hearing on the question of Dorsey's expert qualifications, Dorsey testified about her background, training, and expertise. That testimony included the following. Dorsey has worked in law enforcement for 22 years and has been a detective for eight of those. To become a law enforcement officer, Dorsey attended the corrections academy and a police academy. Over the course of her career, she has attended over 2100 hours of law enforcement training. She has specialized training in assault, rape, and investigations, among other things.

Dorsey has also attended conferences and obtained specialized training in fatal and non-fatal strangulation and wound identification, as well as "pattern injuries and mechanism of injuries." She estimated that she has attended 15 or 16 trainings on the topics of domestic violence and strangulation. The training on strangulation included the signs and symptoms of strangulation.

She also has served as a deputy medical examiner for four years, which required specialized training in death investigations.¹ Dorsey attended a week-long course at the State Medical Examiner's Office and then passed a test, followed by an externship at the State Medical Examiner's Office. She then became certified in her county, which required undergoing practical exams with the county medical examiner. She has to attend 12 hours of training a year and performs case reviews every month. As a deputy medical examiner, she has examined approximately 250 bodies, 25 to 30 of which have involved strangulation and asphyxiation

.

Dorsey testified that strangulation is well understood by law enforcement and deputy medical examiners. Dorsey has reviewed research about the physiology of strangulation, how it occurs, and what it does to the victim's body. In the course of her career, Dorsey has investigated cases of nonfatal strangulation and has seen the signs and symptoms of it.

Dorsey also has specialized training in domestic violence investigations and in her 22 years of experience, she has responded to "probably" 400 domestic violence cases. She has reviewed research in the area of domestic violence and that research is discussed at the various trainings that she has attended, including training on "the cycle of domestic violence" and "the way that victims behave."

After hearing Dorsey's qualifications, the trial court ruled that Dorsey could testify as an expert on particular matters. More specifically, the court ruled that Dorsey could testify about the cycle of violence and counterintuitive victim behaviors. The court also ruled that Dorsey could testify about the absence of physical evidence of strangulation and that urination can be a sign or symptom of strangulation.

During defendant's jury trial, Dorsey testified to her training and experience with strangulation and domestic violence. Dorsey testified that strangulation blocks oxygen from getting to the brain and can cause a loss of consciousness. Some of the signs of strangulation are physical and include petechia

and bruising. Other signs are not visible, including dizziness, nausea, and urination. She explained that she has personally observed deceased victims who have urinated or defecated after being strangled and that it occurs because the brain is deprived of oxygen, causing the muscles that control those bodily functions to relax. Dorsey testified that she has investigated nonfatal strangulation cases where the victim urinated or defecated and that when someone urinates, that victim is as close to death as the victim can get, without actually dying. Not every victim shows the same signs and Dorsey explained that it is possible that some victims may not have any visible signs of strangulation, in part because the neck is primarily soft tissue.

Dorsey also described the cycle of violence and testified that the most dangerous time in a violent relationship is when the victim tries to leave. She testified that many domestic violence victims demonstrate "counterintuitive behaviors," including minimizing the abuse, delaying reporting, and remaining with and/or returning to the abuser.

As noted, defendant argues on appeal that the trial court erred in allowing Dorsey to testify that strangulation often occurs without bruising and that urination is a common psychological response to strangulation that is caused by lack of oxygen to the brain. He also contends that the court erred in allowing Dorsey to testify about the cycle of domestic violence and counterintuitive victim behavior. We disagree.

OEC 702 allows a "witness qualified as an expert by knowledge, skill, experience, training or education" to testify to "scientific, technical or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." Whether a witness is qualified to testify as an expert is relative to the topic about which the witness is asked to testify. State v. Wendt , 294 Or. App. 621, 625, 432 P.3d 367 (2018). We focus on "the knowledge of the...