State v. Wendt

Decision Date31 October 2018
Docket NumberA161467
Citation294 Or.App. 621,432 P.3d 367
Parties STATE of Oregon, Plaintiff-Respondent, v. Leon Erwin WENDT, Defendant-Appellant.
CourtOregon Court of Appeals

David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

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

Before Armstrong, Presiding Judge, and Shorr, Judge, and Bunch, Judge pro tempore.

SHORR, J.

Defendant appeals from a judgment of conviction for manslaughter in the second degree (Count 1), ORS 163.125, and two counts of assault in the fourth degree (Counts 2 and 3), ORS 163.160.1 The convictions arose out of a car crash in which the vehicle that defendant was driving collided with another vehicle, killing defendant's passenger and injuring the driver and passenger of the other vehicle. Defendant raises five assignments of error on appeal. We write to address only defendant's fifth assignment of error, that the trial court erred in determining that a nurse who drew defendant's blood at the hospital was qualified to give opinion testimony that people should not consume alcohol while taking antiseizure medication. We conclude that, on the record before us, the witness was not qualified to testify as an expert regarding the effect of combining alcohol and antiseizure medication. We also conclude that the trial court's error was not harmless. Consequently, we reverse and remand on Counts 1, 2, and 3 and otherwise affirm.2

We summarize all the evidence relevant to a trial court's admission of testimony under OEC 702. State v. Brown , 294 Or. App. 61, 62, 430 P.3d 160 (2018). The state presented evidence that defendant and his roommate, Spinney, drove from their home in Alsea, Oregon, to see a friend's band play at a bar in Lebanon, Oregon. Defendant admitted to consuming at least three alcoholic drinks over the course of the evening.3 After the band finished playing, around 1:30 a.m., defendant and Spinney left the bar, intending to drive back to Alsea. Defendant was driving and Spinney was in the passenger seat. The weather was windy and rainy after defendant left the bar, and visibility was limited. Defendant ran a stop sign while travelling at a speed of approximately 45 miles per hour and struck another vehicle. Spinney was killed as a result of the collision, and the two passengers in the other vehicle were injured.

When police arrived on the scene, defendant was responsive and did not have any major injuries. A detective noticed that defendant was limping

and that his eyes were bloodshot. Defendant agreed to accompany the detective to a nearby hospital to give blood and urine samples. At the hospital, a registered nurse, Atchley, checked defendant for injuries and drew his blood at around 3:51 a.m. A phlebotomist drew a second blood sample approximately half an hour later. From these two blood samples, defendant's blood-alcohol content (BAC) was determined to be .059 percent and .052 percent, respectively.

Defendant was indicted for one count of manslaughter in the first degree, ORS 163.118, for Spinney's death; two counts of assault in the third degree, ORS 163.165, one count for each of the two passengers of the other vehicle; and one count of DUII, ORS 813.010. The case proceeded to a jury trial.

At trial, an expert for the state testified that, using retrograde extrapolation, defendant's BAC at the time of the accident was likely within the range of .082 and .106 percent. Pertinent to this case, "[a] person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person *** [h]as 0.08 percent or more by weight of alcohol in the blood." ORS 813.010 (1)(a).

Defendant's theory at trial was that he had a seizure at the time of the accident. Defendant suffers from a seizure disorder for which he takes medication twice per day. He testified that he last took his medication on the morning of the accident, before he and Spinney left for Lebanon. Defendant reported that he missed his second dose of medication that evening. One of the responding deputies testified that defendant told him that "bad things" could happen if he misses a dose. Defendant also testified that the seizure medication was his "stupid pill" because it made concentrating and multitasking difficult for him. Defendant testified that the prescription sheet for his antiseizure medication instructed him that drinking in moderation was permitted.4

As an element of the crimes of manslaughter and assault, the state was required to prove at trial that defendant acted with a reckless mental state.5 ORS 163.125(1)(a) ; ORS 163.160(1)(a). The state's theory of recklessness was, in part, that defendant disregarded a risk when he mixed alcohol and antiseizure medication. On this point, the state called Atchley, the nurse who drew defendant's blood at the hospital, as an expert witness. Atchley testified to the following: (1) that she had been a registered nurse since 2007; (2) that she had a four-year degree in nursing from Oregon Health & Science University (OHSU), which required two years of prerequisite classes and two years of nursing courses "where we do clinicals, learn skills, learn review of systems, you know, just a little about everything that you need to be a nurse"; (3) that she passed the NCLEX national standardized test for nursing; (4) that she reapplies for her license every two years; (5) that she was required to have additional certifications in trauma, emergency nurse pediatric, basic life support, and advanced cardiac life support

; and (6) that her daily tasks involve "taking care of patients that come in, drawing blood, providing medications, doing assessments, whatever needs to be done to take care of whatever patients arrive."

After questioning Atchley about her observation of the events on the night of the accident, the state asked Atchley, "Based on your training and experience, are individuals supposed to consume alcohol while taking seizure medications?" She responded, "No." Defendant objected to the question "for lack of foundation." The state responded that the question was asked "based on her training and experience." The trial court then overruled defendant's objection.

During closing argument, the state reiterated Atchley's testimony that mixing antiseizure medication and alcohol was not advised, to support the state's theory of defendant's recklessness:

"What was the reckless conduct that night? What did the Defendant do? He was drinking while taking his medications. ***
"* * * * *
"You heard from Katie Atchley, who was a nurse, an emergency room nurse, that drinking with seizure medications is not recommended."

The state also provided alternative theories of defendant's recklessness, including that he missed a dose of his medication, that he had been drinking, and that he could have taken a taxi or stayed with his sister who lived in Lebanon instead of driving that night. The jury acquitted defendant on the DUII charge, which is not at issue in this appeal, and convicted him of manslaughter in the second degree and two counts of assault in the fourth degree. Defendant now appeals his convictions.

On appeal, defendant assigns error to the trial court's determination that Atchley was qualified as an expert under OEC 702 to testify that people should not consume alcohol while taking antiseizure medication. We review for legal error a trial court's determination of whether a witness is qualified to testify about a particular topic. State v. Althof , 273 Or. App. 342, 344, 359 P.3d 399 (2015), rev. den. , 358 Or. 550, 368 P.3d 25 (2016). OEC 702 provides that,

"[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."

A witness's competency to testify is relative to the particular topic about which the witness is asked.

Myers v.Cessna Aircraft , 275 Or. 501, 521, 553 P.2d 355 (1976). " ‘A person may be sufficiently skilled upon one question, and totally unskilled upon the next.’ " Id. (quoting John Henry Wigmore, 2 Wigmore on Evidence § 555, at 634 (3d ed. 1940) ). A witness is not presumed to be disqualified merely because the witness lacks a particular degree. State v. Rogers , 330 Or. 282, 316, 4 P.3d 1261 (2000). However, a witness still needs to demonstrate her expertise relative to the topic about which she is asked to make her statement. Meyer v. Harvey Aluminum , 263 Or. 487, 489, 501 P.2d 795 (1972). Our cases emphasize "the knowledge of the expert, rather than the expert's particular medical degree or specialty, when examining the qualifications of medical experts." Trees v. Ordonez , 354 Or. 197, 210, 311 P.3d 848 (2013). For instance, a registered nurse's competency to testify as an expert under OEC 702 can be established exclusively through the nurse's professional experience if the experience provides the nurse with "specialized knowledge" from which to testify. See State v. Woodbury , 289 Or. App. 109, 115, 408 P.3d 267 (2017) (holding that a registered nurse's experience working with patients with traumatic brain injury

(TBI) qualified her to testify as an expert about the behaviors and mannerisms of TBI patients).

Here, there is insufficient evidence in the record to establish that Atchley had relevant training or education to form a basis for specialized knowledge about the specific question of whether people are supposed to mix antiseizure medication and alcohol. Atchley had a bachelor's degree in nursing and was a registered nurse. As part of her course-work toward her...

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5 cases
  • State v. Wagner
    • United States
    • Court of Appeals of Oregon
    • April 27, 2022
    ...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 expert, rather than the expert's particular medical degree or specialty, when exa......
  • State v. Wagner
    • United States
    • Court of Appeals of Oregon
    • April 27, 2022
    ...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 expert, rather than the expert's particular medical degree or specialty, when exa......
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    • United States
    • Court of Appeals of Oregon
    • October 31, 2018
    ...294 Or.App. 631432 P.3d 363Daniel HARSHBARGER, Plaintiff-Respondent,v.KLAMATH COUNTY, Oregon, a political subdivision of the State of Oregon, Defendant-Appellant.A163379Court of Appeals of Oregon.Submitted May 4, 2018.October 31, 2018Jeffrey D. Laveson, Washington, Linda B. ......
  • State v. Threlkeld, A172263
    • United States
    • Court of Appeals of Oregon
    • September 9, 2021
    ...that determination, we look to "the knowledge of the expert" rather than the expert's particular degree or specialty." State v. Wendt, 294 Or.App. 621, 626, 432 P.3d 367 (2018). Specifically, an expert [314 Or.App. 437] on a given subject is a person who "has acquired certain habits of judg......
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