State v. Rossiter

                                        44

       Argued and submitted March 16, 2017, affirmed October 16, 2019


                         STATE OF OREGON,
                          Plaintiff-Respondent,
                                    v.
                        WENONA ROSSITER,
                          Defendant-Appellant.
                       Linn County Circuit Court
                         13CR06277; A158920
                                   

     A jury found defendant guilty of first-degree manslaughter, ORS 163.118
(1)(c), for failing to seek medical treatment for her daughter, who died of diabetic ketoacidosis. At trial, the court admitted expert testimony indicating that
defendant’s failure to seek medical treatment for her daughter was a gross deviation from the applicable standard of care. The court also admitted evidence
that defendant’s religion proscribed seeking conventional medical treatment. On
appeal, defendant assigns error to the trial court’s (1) admission of the expert testimony, (2) admission of evidence of defendant’s religion, and (3) imposition of the
statutorily mandated 120-month sentence for manslaughter, which defendant
contends is unconstitutionally disproportionate as applied to her under Article I,
section 16, of the Oregon Constitution. Held: Defendant’s challenge to the court’s
admission of expert testimony was not preserved, and any error was not plain
under Ailes v. Portland Meadows, Inc., 

, 

 (1991).
The court was within its discretion under OEC 403 to admit evidence of defendant’s religious beliefs, and it did not err in rejecting defendant’s proportionality
challenge to her statutorily mandated sentence.
    Affirmed.



    Daniel R. Murphy, Judge.
   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.
Cite as 

 (2019)                          45

  Before Ortega, Presiding Judge, and Lagesen, Judge, and
Wilson, Senior Judge.
  LAGESEN, J.
  Affirmed.
  Ortega, P. J., dissenting.
46                                                        State v. Rossiter

           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

    1
      Defendant and her husband were also each charged with second-degree
manslaughter, a charge on which the jury returned a guilty verdict. That verdict
merged with the verdict on the first-degree manslaughter charge.
    2
      Defendant raises two additional assignments of error relating to the nonunanimous jury verdict in this case. Defendant contends that the Sixth and
Fourteenth Amendments to the United States Constitution require unanimous
jury verdicts for the charges in this case. We reject those assignments of error
on the merits without further discussion. See State v. Gerig, 

, 886
n 2, 

 (2019) (taking that approach).
Cite as 

 (2019)                                47

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
48                                               State v. Rossiter

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.
Cite as 

 (2019)                                      49

         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
50                                                 State v. Rossiter

     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 child.
           When Nelson was on the stand, the state asked:
         “If a child, a child, any child, presented with those
     symptoms to their parent, would it constitute a gross deviation from the standard of care for that parent to not take
     the child?”
Nelson responded, “[y]es.” Defendant did not object.
           Finally, when examining Nicol, the state inquired:
        “Can you also testify that in a situation like that had
     that child been accompanied by adults, caretakers, parents, that failure to obtain medical care would have constituted a gross deviation from the standard of care you would
     expect from a reasonable person?”
Defendant objected:
        “I am going to object to that question. The issue is what
     someone would observe and his question was if accompanied by adults, caretakers, etcetera, doesn’t really address
     the issue of how long someone would be with that child,
     whether they would be there the whole day, whether they
     would observe the child the whole day, whether the child
     was sleeping or conscious. And I think because it’s so vague
     and so crucial to the case I’m going to object on that basis.”
The trial court overruled the objection, and the state posed
the question to Nicol again:
Cite as 

 (2019)                                       51

      “You may answer that question, would it constitute a
   gross deviation from the standard of care that you would
   expect from a reasonable person in that situation?”
Nicol responded, “[y]es.”
         The jury returned guilty verdicts on both charges
against defendant. Those verdicts merged into a single conviction for first-degree manslaughter. The trial court sentenced defendant to the applicable mandatory 120-month
sentence under ORS 137.700(2)(a)(D). In so doing, the court
rejected defendant’s argument that the mandatory sentence, as applied to defendant, was unconstitutionally disproportionate under Article I, section 16. Although the court
concluded that the sentence was “harsh in this instance and
under these facts,” the court determined that it was not “so
harsh as to shock the consci[ence].” Elaborating on its decision, the court explained:
      “There is not enough difference from a more typical
   manslaughter case to distinguish it sufficiently to render the Measure 11 sentence so unjust as to violate the
   constitution.
      “The Measure 11 sentence required in this case is not
   the best possible sentence the court could impose and if the
   court had discretion to formulate a sentence that was more
   just and more likely to protect the public, and in particular
   children, the court would do so. Absent a clear constitutional disproportionality the court does not have that discretion under Measure 11.”
The court memorialized that ruling in its written judgment.
         Defendant appealed. In her first four assignments
of error, defendant challenges the trial court’s admission of
the testimony by Goby, Nelson, and Nicol that is set forth
above. Defendant contends generally that the expert testimony at issue was admitted in violation of OEC 702, OEC
703, and OEC 403. The state responds that defendant did
not preserve the issues that she is raising on appeal because
she never objected on the grounds that the evidence was
inadmissible under those particular rules. The state argues
further that any error in admitting the challenged evidence
is not plain.
52                                           State v. Rossiter

         In her fifth assignment of error, defendant assigns
error to the trial court’s admission of the evidence regarding
her religious beliefs, contending that the court abused its
discretion under OEC 403 in concluding that the probative
value of the evidence was not substantially outweighed by
the danger of unfair prejudice. The state responds that the
court’s decision was within its discretion, pointing to other
cases upholding the admission of similar evidence under
OEC 403.
         Finally, in her sixth assignment of error, defendant
contends that the trial court erred in rejecting her as-applied
proportionality challenge to the 120-month sentence that the
trial court imposed pursuant to ORS 137.700(2)(a)(D). The
state responds that the court was correct to conclude that
this case does not present the sort of “rare circumstances” in
which Article I, section 16, requires a court to override the
legislature’s policy judgment as to the appropriate penalty
for the crime of first-degree manslaughter.
                       II. ANALYSIS
A. Expert Testimony
         Defendant’s first four assignments of error challenge the trial court’s admission of expert testimony from
Goby, Nelson, and Nicol. But those assignments of error
have not been presented in a way that facilitates meaningful appellate review, are not preserved, and, to the extent
plain error review might be appropriate, do not demonstrate
plain error.
        We start with presentation. It is difficult for us to
review these assignments of error in a manner consistent
with the principle that “it is not this court’s function to
speculate as to what a party’s argument might be. Nor is it
our proper function to make or develop a party’s argument
when that party has not endeavored to do so itself.” Beall
Transport Equipment Co. v. Southern Pacific, 

, 700 n 2, 

, adh’d to on recons, 

, 

 (2003). That is largely because the assignments are presented to us in way that only loosely complies
with ORAP 5.45.
Cite as 

 (2019)                                                 53

         The gravamen of defendant’s assignments of error
is that the trial court admitted four distinct pieces of testimony in violation of one or more specific rules of evidence:
OEC 702; OEC 703; OEC 403. Rather than developing each
assignment of error separately, she has combined them
without meaningfully addressing the distinctions between
the individual items of evidence or the individual rules as
applied to particular items of evidence.
         Although defendant generally contends that the
assigned errors are preserved, and includes a preservation section in her brief, the content of that section does not
demonstrate that defendant ever argued to the trial court
that the admission of any of the challenged evidence violated
any of those rules, as is required by ORAP 5.45(1) (2015).3
Instead, the preservation section indicates that defendant
objected to some but not all of the challenged testimony,
and that her objections below do not match her objections on
appeal.
         At the close of the preservation section, defendant
does acknowledge the possibility that her assignments of
error are not preserved and requests plain error review if
we conclude that is the case. However, her arguments as
to why plain error review might be appropriate are cursory
and her ensuing arguments on the merits do not frame the
legal discussion in terms of the well-defined standards for
plain error review under Ailes v. Portland Meadows, Inc.,

, 

 (1991).
         Defendant’s brief also does not address the standards of review applicable to evidentiary rulings under the
OEC provisions identified. That conflicts with ORAP 5.45(5).
It also imposes an additional impediment to our review.
ORAP 5.45(5) provides: “Under the subheading ‘Standard of
Review,’ each assignment of error shall identify the applicable standard or standards of review, supported by citation to
     3
       Defendant’s opening brief was filed while ORAP 5.45 (2015) was in effect
and is thus governed by that version of the rule, which has been amended since
defendant filed her brief. ORAP 1.10(1). All references to the ORAP provision
in this opinion are to the 2015 version of the rules. ORAP 5.45(4) provides, in
pertinent part, that, in the section of a brief addressing preservation of error,
“[e]ach assignment of error must set out pertinent quotations of the record where
the question or issue was raised and the challenged ruling was made[.]”
54                                                    State v. Rossiter

the statute, case law, or other legal authority for each standard of review.” As we have observed, “[t]he requirement that
parties to an appeal set out the proper standard of review
for each assignment of error is not a mere formality.” Dillard
and Dillard, 

, 26 n 1, 

, rev den,

 (2002). This court’s fundamental function is to
review the decisions of trial courts and administrative agencies, and the standard of review defines our role on review.
The requirement that the parties to an appeal identify the
standard of review applicable to a certain assignment of
error “serves the purpose of causing the parties to frame
their arguments appropriately to the types of rulings being
challenged. It also helps to identify any differences that the
parties may have regarding the proper scope of review[.]”
State v. Schwartz, 

, 305 n 2, 

(2001). In other words, defendant’s failure to identify the
standard of review applicable to the challenged rulings, and
to analyze the assignments of error through that lens, is a
significant omission in her arguments to us.
          Finally, defendant’s argument on the merits consists of (1) a general summary of her view of the principles
captured by OEC 702, OEC 703, and OEC 403,4 and (2) a
very general argument that the admission of the challenged
evidence violated those principles. In the end, what we are
presented with is a highly generalized argument that the
admission of the evidence violated “the Oregon Evidence
Code,” without much regard to whether defendant preserved
those issues, what this court’s proper role is in reviewing
the trial court’s ostensible rulings, or much guidance about
how the particular rules apply to the distinct items of evidence. Reviewing defendant’s claims of error in view of that
approach would place us in the position of developing defendant’s arguments for her, at least to a fair extent.
         To the extent that defendant’s assignments of error
have been properly presented to us, they are not preserved,
and, as we explain, defendant has not demonstrated that
the criteria for plain error review are present. For an alleged
error to qualify as “plain,” so as to permit plain error review,

    4
      Defendant also identifies OEC 401 and OEC 704, but does not appear to
base her argument on those rules.
Cite as 

 (2019)                                         55

it must (1) be a legal error that is (2) “obvious, not reasonably
in dispute[,]” and (3) “appear ‘on the face of the record,’ i.e.,
the reviewing court must not need to go outside the record to
identify the error or choose between competing inferences,
and the facts constituting the error must be irrefutable.”
Ailes, 

-82 (quoting State v. Brown, 

, 

 (1990)).
          Defendant first contends that Goby’s testimony that
defendant was “negligent” for not obtaining medical care for
S “is an unhelpful legal conclusion drawn by a witness with
no superior ability to apply the facts to the law than the
jury.” Assuming that that assertion could establish grounds
for excluding evidence under one or more of the evidentiary
rules cited by defendant, defendant has not demonstrated
that it is “plain” either that Goby’s testimony was “unhelpful” or that Goby had no superior ability to the jury’s to
assess whether defendant was negligent.
         As for helpfulness, the Supreme Court has explained:
   “There are situations … where a jury clearly is not equally
   well qualified and needs help to find the truth. There are
   also situations where a jury clearly is equally qualified
   without help from opinion testimony such as offered here.
   It is the area between the clearly qualified and the clearly
   unqualified where the trial judge should be granted a certain latitude of decision in excluding or receiving expert
   opinion testimony.”
Yundt v. D & D Bowl, Inc., 

, 

(1971). In such circumstances involving a factual issue that
is “neither clearly within, nor beyond, the jury’s assumed
level of understanding,” a trial court has discretion in determining whether particular testimony will assist the jury in
some way. State v. Jesse, 

, 

(2016). A trial court may admit expert testimony specifically
addressing an issue to be decided by the jury so long as the
issue is one that is not “clearly” within the jury’s understanding. Madrid v. Robinson, 

, 

 (1997).
        Madrid illustrates the point. It involved a negligence claim by the plaintiff, a guardian ad litem for a runner
who was struck by the defendant’s car while running along
56                                                 State v. Rossiter

a highway. 

. The runner’s position in the roadway
was disputed at trial. 

 Over the plaintiff’s objection, the
trial court permitted two accident reconstruction experts to
opine that the runner had been in the travel portion of the
roadway, and that the runner’s position was the cause of the
accident. 

. The jury found in favor of the defendant. 

. On appeal, we reversed. We reasoned:
     “At trial, the point of impact between [the runner] and defendant’s car was a hotly contested factual issue. Although [the
     accident reconstruction experts’] testimony about the point
     of impact was cumulative, their testimony as to the cause of
     the accident was pure opinion on the legal consequences of
     disputed facts. … That testimony impermissibly told the
     jury that it should reach a particular result on the question
     of defendant’s alleged negligence.”

Madrid v. Robinson, 

, 

 (1995)
(internal quotation marks and citations omitted).
         The Supreme Court saw things differently. It concluded that it was a discretionary call for the trial court
whether the testimony would be helpful to the jury under
the circumstances. The court explained:
         “In this case, plaintiff argues that the officers’ expert
     testimony about what ‘caused’ the accident should have
     been excluded, because it did not assist the jury to understand the evidence or a fact in issue but, instead, it merely
     told the jury to decide the case for defendant. The trial
     court reasonably could have sustained plaintiff’s objections
     on those grounds. However, testimony about causation may
     refer to a question of fact that is properly within the realm
     of expert opinion, where the expert’s evaluation and interpretation of evidence will assist the jury to understand it.
     Thus, the court reasonably could have found that the officers’ opinion testimony addressed a fact in issue, i.e., the
     point of impact, in a way that would assist the jury.”

Madrid, 

.
         Here, similar as in Madrid, knowledge of how a
parent or other caregiver might respond to the signs of diabetic ketoacidosis in a child is not something that is clearly
within the assumed understanding of the jury—at least,
Cite as 

 (2019)                               57

in view of our plain error standards, it is not obvious that
that is the case. Consequently, it is not obvious that Goby’s
testimony could not help the jury by “adding specialized
confirmation and, thus, confidence to general propositions
otherwise likely to be assumed more tentatively by the trier
[of fact].” Jesse, 

 (identifying some of the ways
that expert testimony can assist a jury). It therefore is not
obvious that the trial court erred by admitting it.
          As for whether Goby had no more of a “superior ability” than the jury to evaluate whether defendant’s conduct
was negligent, that also is not plain on this record. Goby had
been a family practitioner for 43 years and had treated children with diabetes. That would permit a reasonable inference that Goby has developed expertise over time on what
sorts of symptoms typically result in parents and caregivers
seeking medical treatment for a child in their care. In any
event, definitively resolving the question of Goby’s competency to testify to whether a parent’s failure to seek medical
care for a child comports with the standard of care for a
caregiver would require us to go outside the record created
in the trial, which is something we cannot do in the context
of plain error review. Ailes, 

.
         Defendant next argues that the trial court erred in
permitting Goby to testify that a conscious failure to seek
medical care created a substantial risk of death. Although
defendant characterizes that testimony as “less problematic” than Goby’s opinion on negligence, defendant asserts
that “the doctor essentially testified that defendant’s disregard of the risk was negligent and the reason it was negligent is because it created a substantial risk” of S’s death.
Thus, defendant contends, the admission of the testimony
“violated the above-described rules of evidence.”
         That argument does not demonstrate any plain
error. Again, knowledge about diabetic ketoacidosis, the risks
that it poses, and the circumstances under which a reasonable caregiver ordinarily would seek medical treatment for
a child suffering from complications from Type I diabetes,
is not obviously something that is “clearly” within a jury’s
assumed understanding, such that a trial court would have
no choice but to exclude expert opinion on the point.
58                                                State v. Rossiter

           Defendant’s final argument is as follows:
         “Lastly, both Doctors Nelson and Nicol specifically testified that the failure to take a child who is suffering from
     the symptoms of DKA to the doctor constitutes a gross
     deviation from the standard of care that a reasonable person would observe—an express element of first-degree
     manslaughter. As repeatedly noted above, the doctors provided no insight uncommon to the jury that would help it
     resolve that question—yet their credentials and positions
     of authority carried with them an unacceptably high risk
     that the jury would defer to their assessments.”
Assuming again that the points made in that argument
could supply a basis for excluding the challenged evidence
under the identified evidentiary rules, it does not demonstrate plain error for the same reasons identified in our discussion of Goby’s testimony. Beyond that, it is not plain that
Nicol or Nelson had no helpful insights to supply. Nicol, in
particular, regularly treats children ages 0 to 18 for diabetes. She testified, without objection, that children who are
ultimately diagnosed with Type I diabetes are typically
brought to a pediatrician “because their child has lost weight
or they are drinking or peeing all the time.” That testimony
would support the inference that Nicol’s experience as a
pediatric endocrinologist puts her in a position to observe
the circumstances that cause typical parents and caregivers
to seek medical care for children. That is information that
could help a jury evaluate how defendant’s conduct comports
with what is reasonable to expect of a parent in similar circumstances. Although it is less evident on this record that
Nelson, a forensic pathologist, was in a position to supply
insight to the jury on the circumstances in which parents
and caregivers seek care for diabetic children, definitively
resolving that question would require us to go outside the
record, contrary to the rules of plain error review.
       For those reasons, we reject defendant’s first four
assignments of error.
B.    Evidence of Religious Beliefs
        Defendant next assigns error to the trial court’s
admission of evidence of her religious beliefs. She contends
that the court’s reasoning in its letter opinion demonstrates
Cite as 

 (2019)                                 59

that the court erred in concluding that the evidence was
admissible under OEC 403. Specifically, she contends that
the court erred in its assessment of the state’s need for
the evidence and also in its assessment of the potential for
unfair prejudice presented by the evidence.

         We review a trial court’s OEC 403 decision for abuse
of discretion. State v. Schmidt, 

, 

, rev den, 

 (2019). “Generally, we defer to
a trial court’s ‘decision whether the probative value of the
evidence is substantially outweighed by the potential for
prejudice.’ ” Id. (quoting State v. Williams, 

,

, cert den, 

 (1992)).

         Under that deferential standard of review, we will
not displace the trial court’s determination that the probative value of the evidence was not substantially outweighed
by the risk of unfair prejudice. The Supreme Court has held
that evidence of a defendant’s religious beliefs is admissible to prove motive when it is reasonable to infer that those
beliefs operated as a motive to commit the charged crime.
State v. Brumwell, 

, 

 (2011);
State v. Hayward, 

, 

 (1998).
In this case, a disputed issue on the manslaughter charge
was whether defendant had consciously disregarded the risk
of failing to seek medical care for S. Defendant’s theory was
that she had no reason to think that S’s situation was so
dire; the state’s theory was that defendant was aware of the
risk and consciously disregarded it. Under those circumstances, evidence that defendant’s religious beliefs directed
her to rely on God rather than on conventional medicine to
heal the body was highly probative because it would support
the reasonable inference that defendant had a motive for not
seeking medical care for S, even though she was aware of the
risk. We acknowledge, as does the state, that the introduction of evidence of a defendant’s religious beliefs gives rise
to a risk that hostility to those beliefs may influence a jury’s
deliberations. See Brumwell, 

 (recognizing the
risk presented by evidence of religious beliefs, when those
beliefs might be ones that jurors could view with hostility in
view of their own religious beliefs). But, it was not outside
the trial court’s discretion to conclude that the probative
60                                                State v. Rossiter

value of the evidence on the issue of motive was not substantially outweighed by the risk that the jury would decide the
case based on hostility to defendant’s religious beliefs. See,
e.g., 

 (where evidence of the defendant’s religious beliefs
was “integrally related” to the reason the crimes were committed, trial court did not abuse its discretion by concluding
that probative value was not substantially outweighed by
the risk of unfair prejudice for purposes of OEC 403).
        Defendant also argues that the trial court’s remarks
questioning defendant’s strategic choice to seek to exclude
the evidence demonstrates that the court misjudged how
prejudicial the evidence could be. We do not disagree with
defendant that the court’s remarks can be read that way.
Ultimately, though, it appears that the court’s remarks were
largely gratuitous. After opining on defendant’s (and her
husband’s) trial strategy, the court went on to explain:
        “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.”
         That explanation indicates that the trial court ultimately understood and ruled on the arguments presented
to it about whether the evidence’s probative value as motive
evidence was substantially outweighed by the risk that the
jury would decide the case based on improper hostility to
defendant’s religion. Therefore, notwithstanding its digression about defendant’s trial strategy, we conclude that the
trial court’s decision to admit the evidence comported with
OEC 403.
C. Proportionality
         Defendant’s final contention is that the trial court
erred when it rejected her as-applied proportionality challenge to the statutorily required 120-month sentence for
manslaughter. Specifically, she asserts that the trial court
erred in three respects: (1) by stating that it was not permitted to consider certain mitigating factors in assessing the
proportionality of the sentence; (2) by finding the sentence to
be proportionate, notwithstanding the fact that defendant
Cite as 

 (2019)                                  61

has no criminal history; and (3) by applying an incorrect
legal standard in determining proportionality. None of those
arguments demonstrates reversible error.
         Starting with defendant’s third point—whether the
trial court applied the incorrect legal standard in assessing
proportionality—that is of no moment in light of our standard of review. “In considering a sentence proportionality
challenge under Article I, section 16, ‘we review for legal
error the trial court’s conclusion that defendant’s sentence
was constitutional[.]’ ” State v. Cook, 

,

 (2019) (quoting State v. Ryan, 

,

 (2017)). That is, we ourselves are required to
assess the legal merits of defendant’s proportionality challenge with fresh eyes, accepting any supported factual findings by the trial court. In so doing, we will apply the correct
legal standard, even if the trial court applied an incorrect
one. Defendant does not suggest that the trial court’s ostensible application of an incorrect legal standard affected its
factfinding or otherwise influenced its ruling in a way that
would require a remand. As a result, defendant’s argument
that the court erroneously required her to show that the
sentence was “clearly” disproportionate does not establish
reversible error.
          Defendant’s first point fails to demonstrate reversible error because it is predicated on a misreading of the
trial court’s order. As the state points out, the court’s “observations as to the limits of its authority to consider mitigating factors were directed at its authority under Measure
11, and not under Article I, section 16.” Those observations
about the scope of its authority under Measure 11 were
legally correct. Under Measure 11, “the trial court has no
discretion to impose a lesser sentence based on the specific
facts of the case, harm to the victim, or characteristics of the
defendant.” State v. Rodriguez/Buck, 

, 

 (2009).
         Finally, as to the merits of defendant’s proportionality challenge, defendant has not demonstrated that this
case is one of the rare ones in which Article I, section 16,
permits a court to displace the legislatively prescribed
sentence for the offense of which defendant was convicted.
62                                                    State v. Rossiter

See State v. Wheeler, 

, 

 (2007)
(explaining that the standard for displacing a legislatively
prescribed sentence under Article I, section 16, is one “that
would find a penalty to be disproportionately severe for a
particular offense only in rare circumstances”). The question, ultimately, is whether defendant’s sentence can be said
to “shock the moral sense” of reasonable people “as to what is
right and proper under the circumstances.” Sustar v. County
Court of Marion Co., 

, 

 (1921). Three
factors inform the consideration of that question:
     “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed
     for other, related crimes; and (3) the criminal history of the
     defendant.”
Rodriguez/Buck, 

.
         Considering those factors, defendant’s sentence is
not one that shocks the moral sense of reasonable people.
The crime of which defendant was convicted was grave. The
jury found that defendant caused her daughter’s death by
consciously disregarding a substantial risk that her daughter would die without medical treatment. As a result of
defendant’s conduct, as found by the jury, a child is dead
because the people entrusted with her care did not seek
medical care for her even though they were aware she faced
a risk of death. The 120-month sentence is not overly severe
for conduct causing the death of the child. The 120-month
sentence also is in line with the sentences for other forms
of homicide.5 Although defendant’s lack of criminal history
weighs in her favor in this calculus, that fact ultimately does
not convince us that this is one of the rare circumstances in
which we may displace the legislatively prescribed penalty
for defendant’s offense, in view of the severity of the offense
and the fact that the sentence is in line with the penalties
for other forms of homicide. As the trial court recognized,
defendant has not demonstrated that the circumstances of
this case are so different from other cases of first-degree
manslaughter that it would shock the conscience to require
     5
       Under ORS 137.700(2)(a)(A), the mandatory minimum sentence for murder
is 300 months. Under ORS 137.700(2)(a)(E), the mandatory minimum sentence
for second-degree manslaughter, ORS 163.125, is 75 months.
Cite as 

 (2019)                                                 63

defendant to serve the legislatively prescribed sentence, but
not shock the conscience to require other defendants to do
so, and defendant does not contend that the prescribed sentence is facially unconstitutional.6
           Affirmed.
           ORTEGA, P. J., dissenting.
        Although I agree with the majority that defendant’s
challenge to the admission of the expert testimony is not
preserved, the trial court’s admission of the testimony of
Nelson and Nicol was plain error, in my view, and I would
exercise discretion to correct that error. Because I would
reverse on that basis, I dissent.17
         I acknowledge at the outset that the error that
I find to be plain is not plain to the majority. However, I
remain convinced that the error is plain and that we should
correct it under these circumstances. This case presented a
challenge to the jury; a child is dead, and she died while in
the care of a parent who, by all accounts, was an otherwise
law-abiding person with whom the jury members otherwise
might identify. The testimony whose admission was plain
error relieved the jury of a burden that it was capable of
bearing and was required to bear. It improperly gave the
jury the backing of an expert to reach a decision that might
well have been emotionally difficult to make otherwise. As
I will explain, doing so was plainly erroneous and may well
have allowed members of the jury to rely on the experts for
a determination that they were required to make. For that
reason, I would exercise discretion to correct that error.
         I begin by setting some context. Consideration of
an unpreserved claim of error encompasses two steps, the
first being a determination of whether the trial court plainly
erred. Error is “plain” if

    60
       In her sentencing memorandum to the trial court, defendant argued that,
among other things, the influence that her religious beliefs had on her conduct
should bear on the proportionality analysis. Defendant has not further developed
that argument on appeal.
    17
       I agree with the majority that the court was within its discretion under
OEC 403 to admit evidence of defendant’s religious beliefs and that the court did
not err in rejecting defendant’s proportionality challenge to her sentence.
64                                                         State v. Rossiter

     “(1) the error is one of law, (2) the error is ‘obvious, not reasonably in dispute,’ and (3) the error ‘appears on the face
     of the record,’ so that we need not ‘go outside the record to
     identify the error or choose between competing inferences,
     and the facts constituting the error are irrefutable.’ State v.
     Reyes-Camarena, 

, 

 (2000) (internal quotation marks omitted).”
State v. Corkill, 

, 

, rev den,

 (2014). If we determine that a trial court plainly
erred, we consider whether we should exercise our discretion to correct that error. State v. Vanornum, 

, 

 (2013) (“That discretion entails making
a prudential call that takes into account an array of considerations, such as the competing interests of the parties,
the nature of the case, the gravity of the error, and the ends
of justice in the particular case.”). Because the asserted
errors are legal ones and appear on the face of the record,
plain error analysis in this case turns on whether the error
is “obvious, not reasonably in dispute” and, if obvious, the
prudential call of exercising our discretion to correct it.
To explain why I see the error as plain and meriting the
exercise of discretion to correct it, I begin with a discussion
of the relevant elements of the crime of first- and second-degree manslaughter involving the death of a child under
14 years of age and when the death is caused by neglect or
maltreatment.
           In that circumstance, second-degree manslaughter requires the culpable mental state of criminal negligence, ORS 163.125(1)(c), and first-degree manslaughter
requires the culpable mental state of recklessness, ORS 163.118
(1)(c).28 Those terms are defined as follows. “Criminal negligence” or “criminally negligent”
     “means that a person fails to be aware of a substantial
     and unjustifiable risk that the result [the death of another

    28
       For first-degree manslaughter not involving a child under age 14, the
required mental state is “reckless[ness] under circumstances manifesting
extreme indifference to the value of human life,” ORS 163.118(1)(a), or intentional
murder but mitigated by a defendant “under the influence of extreme emotional
disturbance,” ORS 163.118(1)(b). For second-degree manslaughter not involving
a child under 14 years of age, the mental state is causing the death of another
“recklessly,” or “intentionally” when “caus[ing] or aid[ing] another person to commit suicide.” ORS 163.125(a), (b).
Cite as 

 (2019)                                         65

   person] … will occur …. The risk must be of such nature
   and degree that the failure to be aware of it constitutes a
   gross deviation from the standard of care that a reasonable
   person would observe in the situation.”
ORS 161.085(10). “Recklessly”
   “means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result
   will occur or that the circumstance exists. The risk must
   be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a
   reasonable person would observe in the situation.”
ORS 161.085(9). We have explained that the “difference
between the two mental states is that a criminally negligent
defendant grossly deviates from the standard of care for a
reasonable person by failing to be aware of a risk, whereas
a reckless defendant grossly deviates from the standard of
care of a reasonable person by consciously disregarding a
known risk.” State v. Clark, 

, 435 n 6, 

 (2013) (emphases in original). A person charged
with the crime of manslaughter that requires the mental
state of recklessness or criminal negligence has, in both
cases, a “duty to exercise that degree of care that a reasonably prudent person would use under the circumstances,”
and the disregard of a known risk or the failure to be aware
of a risk must constitute a gross deviation from that degree
of care. 

. Thus, a factfinder must assess, for both
mental states, the degree of care required by a reasonable
person in the given circumstances and assess whether the
failure to be aware of the risk or the disregard of a known
risk is a gross deviation from that standard.
         Here, the state adduced evidence that the victim
presented symptoms associated with advanced diabetic
ketoacidosis, and the jury (if it believed that the victim
presented those symptoms or some of them) had to decide
whether defendant failed to be aware that the victim was
at a substantial risk of dying (criminal negligence) or
whether defendant knew that there was a substantial risk
of the victim dying and disregarded that risk (recklessness).
That assessment depended on a determination of whether
a reasonable person responsible for a child faced with those
66                                          State v. Rossiter

symptoms would seek medical help, the standard of care,
and whether defendant’s failure to seek medical help was a
“gross deviation” from that standard of care. Gross deviation
is the necessary degree of that failure, and it was the jury’s
task to decide whether that deviation was to such a degree
that defendant’s failure to seek medical help made her criminally responsible for the victim’s death (rather than civilly
responsible). See State v. Lewis, 

, 

 (2012) (stating that “the ordinary negligence standard of
care … provides the benchmark for determining whether
the defendant’s conduct was a ‘gross deviation’ ”); State v.
Stringer, 

, 

 (1980), aff’d, 

, 

 (1981), on reh’g, 

, 

(1982) (concluding that the trial court’s instruction that the
jury must find that the defendant’s conduct constituted a
gross deviation from the standard of reasonable care was
the correct instruction because it “correctly informed the
jury as to the degree of the breach of duty which was requisite to a finding of criminal liability under ORS 163.145”).
         I turn to the challenged testimony from Nelson
and Nicol. Nelson, the forensic pathologist, testified to the
symptoms of diabetic ketoacidosis and that they would be
observable to a layperson and would manifest as an emergency and ultimately, that it would “constitute a gross deviation from the standard of care for that parent to not take
[a] child” with those symptoms to a hospital. Nicol, the pediatric endocrinologist, likewise testified to the symptoms of
diabetic ketoacidosis and that the failure to seek medical
care would “constitute a gross deviation from the standard of
care that you would expect from a reasonable person in that
situation[.]”
         I agree with the majority that the two doctors could
assist the jury in understanding the symptoms of diabetic
ketoacidosis and that Nicol could assist the jury in understanding the typical response she sees from caregivers who
encounter such symptoms in their children. Such testimony
was outside the jury’s expertise and could help the jury perform its task of determining the standard of care. But in proceeding to opine that it was a gross deviation from the standard of care for a parent (or other responsible person) to not
seek medical care when a child is presenting the symptoms
Cite as 

 (2019)                               67

of diabetic ketoacidosis, Nelson and Nicol went too far: They
opined that a person in defendant’s situation deviated from
the standard of care necessary (that is, if a person knew of
the risk and disregarded it or should have known of the risk)
to establish that the person was criminally culpable for a
child’s death. The doctors lacked specialized understanding
or knowledge to make that assessment; they usurped the
jury’s task rather than assisting it.
          The assessment of “gross deviation” requires a
decision by the jury that involves an appraisal of the defendant’s culpability based on qualitative factors that is outside the ambit of medical expertise. Indeed, that assessment requires an analysis of what an ordinary parent—that
is, a parent without the benefit of medical training or
experience—should have done; allowing an expert (no more
qualified than the jury members) to make that determination for the jury is particularly unhelpful.
         We have upheld the allowance of testimony as to
complex matters outside the jury’s expertise. See, e.g., State
v. Nistler, 

, 

 (2015) (allowing expert testimony as to the regulation of securities and
whether the transaction at issue was part of a “common
enterprise”). In Nistler, to determine whether the transactions at issue were securities, a four-element test for an
investment contract had to be met, including whether the
transaction was part of a “common enterprise,” which in
turn required “horizontal commonality.” 

. As we
explained, that factual finding which the jury was tasked
with making was the “archetype” of a situation requiring
“enlightenment from those having a specialized understanding of the subject involved in the dispute.” 

 at 486
(quoting Legislative Commentary to OEC 702, reprinted in
Laird C. Kirkpatrick, Oregon Evidence § 702.02, 619 (6th
ed 2013) (emphasis omitted)). Put another way, the expert’s
testimony in Nistler was helpful because the “regulation
of securities is not within the purview of the ‘untrained
layman’—nor, for that matter, most legally trained professionals.” Id. at 486.
        In this case, however, the jury’s task—finding that
the deviation from a reasonable standard of care was enough
68                                               State v. Rossiter

to constitute criminal negligence or recklessness—was neither complex nor outside of the purview of an “untrained
layman.” To be sure, the medical experts’ testimony was
helpful to establish how the victim died, how the symptoms of diabetic ketoacidosis would have presented, and
that timely medical intervention would have prevented her
death. However, the jury members were well-qualified by
their life experiences, judgment, and ability to assess the
evidence and to answer the question whether the failure to
heed those exhibited symptoms was a gross deviation from
the standard of care. In this instance, no “enlightenment”
was needed to determine the issue of criminal culpability—
and allowing the medical experts to opine on that issue suggested that medical expertise was necessary to resolve it
and held the potential to improperly influence a determination that belonged to the jury alone.
        Accordingly, I would conclude that the opinions of
Nelson and Nicol were clearly unhelpful under OEC 702 and
that their admission was an “obvious” error that is not “reasonably in dispute.”
         Before discussing why I would exercise Ailes discretion to correct the trial court’s failure to disallow Nelson’s
and Nicol’s challenged testimony, I address why I would
conclude that their unhelpful testimony was not “otherwise
admissible” as not unduly prejudicial under OEC 403. Ailes
v. Portland Meadows, Inc., 

, 

 (1991).
That evidence rule provides:
        “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
     unfair prejudice, confusion of the issues, or misleading the
     jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
Because defendant primarily relies on State v. Southard,

, 

 (2009), to support her argument
that the medical experts’ testimony was unduly prejudicial,
I turn to that decision.
          In Southard, the Supreme Court decided whether a
medical diagnosis of child sexual abuse is admissible scientific evidence when there is no physical evidence of sexual
abuse. 347 Or at 129-31. To assess the probative value of the
Cite as 

 (2019)                                       69

medical diagnosis, the court first concluded that the diagnosis—based on procedures that included interviews, the
child’s history, and guidelines—was valid scientific evidence.
Id. at 139. Despite the scientific validity of the evidence, the
court, when deciding whether the trial court erred under
OEC 403 by admitting the diagnosis, reasoned that, in
   “determining the probative value of the doctor’s ultimate
   conclusion of sexual abuse, we note that her diagnosis did
   not tell the jury anything that it was not capable of determining on its own. As noted above, whether defendant
   caused the boy to engage in oral sex (and thus sexually
   abused him) does not present the sort of complex factual
   determination that a lay person cannot make as well as an
   expert.”
Id. at 140. Because the record lacked physical evidence of
abuse, the jury’s finding of sexual abuse rested on credibility
determinations, and “the doctor’s diagnosis … did not tell
the jury anything that it was not equally capable of determining, the marginal value of the diagnosis was slight.” Id.
Further, the
   “risk of prejudice … was great. The fact that the diagnosis came from a credentialed expert, surrounded by the
   hallmarks of the scientific method, created a substantial
   risk that the jury ‘may be overly impressed or prejudiced
   by a perhaps misplaced aura of reliability or validity of
   the evidence.’ … [T]he diagnosis is particularly problematic because the diagnosis, which was based primarily on
   an assessment of the boy’s credibility, posed the risk that
   the jury will not make its own credibility determination,
   which it is fully capable of doing, but will instead defer to
   the expert’s implicit conclusion that the victim’s reports of
   abuse are credible.”
Id. at 140-41; see id. at 142 (quoting Christopher B. Mueller
& Laird C. Kirkpatrick, 3 Federal Evidence § 7:9, 810-13 (3d
ed 2007) (“Where the issue and subject are ones lay jurors
can appreciate and evaluate by applying common knowledge and good sense, admitting expert testimony seems the
wrong thing to do and may warrant reversal if it is likely
to dissuade the jury from exercising its own independent
judgment or if it effectively takes over the jury’s traditional
function to judge the credibility of witnesses.”).
70                                            State v. Rossiter

         Here, Nelson’s and Nicol’s challenged testimony
had scant probative value. The jury was required to assess
the degree of deviation from the standard of care to support
a finding of recklessness or criminal negligence, and that
assessment was one that did not require assistance from
the medical experts. Nor were the medical experts helpful
in that regard. Not unlike the encroachment in Southard
on the jury’s exclusive role in determining credibility, the
challenged testimony in this case likewise “did not tell
the jury anything that it was not capable of determining
on its own.” 347 Or at 140. That is, the degree of deviation from the standard of care was an assessment that the
jurors could “ ‘appreciate and evaluate by applying common
knowledge and good sense.’ ” Id. at 142 (quoting Mueller and
Kirkpatrick, 3 Federal Evidence § 7:9, 810-13). In this case,
the jury was “equally capable” of assessing whether there
was a gross deviation from the standard of care, and the testimony that encompassed that finding had little probative
value.
         As to unfair prejudice, the state finished its direct
examinations of Nelson and Nicol by summarizing the
symptoms associated with diabetic ketoacidosis and then
asking whether the failure to seek medical care was a gross
deviation from the standard of care expected from a reasonable person in defendant’s situation. Because those final
opinions as to the degree of deviation from the standard of
care were significantly tied to testimony that had an “aura
of reliability or validity,” that connection created a “substantial risk that the jury may be overly impressed or prejudiced.” Consequently, because I believe that the risk that the
jury would defer to that testimony substantially outweighed
its minimal probative value, I would conclude that it was
unfairly prejudicial under OEC 403.
         Finally, I address why I would exercise discretion to
correct the trial court’s failure to sua sponte exclude the challenged testimony. It is a longstanding principle that “only
in rare and exceptional cases” will we “notice an alleged
error where no ruling has been sought by the trial judge.”
Hotelling v. Walther, 

, 

 (1944). An
appellate court’s decision to exercise its discretion to address
an unpreserved claim of error “should be made with utmost
Cite as 

 (2019)                                       71

caution” because “[s]uch action is contrary to the strong policies requiring preservation and raising of error.” Ailes, 

. The Ailes court articulated the following factors
as relevant to the exercise of plain-error discretion:
   “[I]n deciding whether to exercise its discretion to consider
   an error of law apparent on the face of the record, among
   the factors that a court may consider are: the competing
   interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case;
   how the error came to the court’s attention; and whether
   the policies behind the general rule requiring preservation
   of error have been served in the case in another way, i.e.,
   whether the trial court was, in some manner, presented
   with both sides of the issue and given an opportunity to
   correct any error. Those factors do not comprise a necessary or complete checklist; they merely are some of the permissible considerations.”

 at 382 n 6 (citations omitted). Considering those factors,
I would conclude that we should exercise our discretion to
correct the errors in this case.
         To begin with, the gravity of the errors and the
ends of justice in this case weigh in favor of exercising discretion to correct, because the errors concerned the pivotal disputed issue. Defendant’s position was that it was
reasonable for her to believe that the victim was sick with
the flu—a non-life-threatening illness that afflicted other
family members and church members on the day the victim died. Nelson’s and Nicol’s opinions formed the core of
the state’s case that the victim died of diabetic ketoacidosis,
that the symptoms of that condition would have appeared
to a lay person as serious, and that, had defendant obtained
medical care for the victim, she would have survived. From
that testimony, the jurors could have arrived at the conclusion that defendant’s failure to obtain medical care for the
victim consciously disregarded or failed to be aware of the
risk that the victim would die and was a “gross deviation
from the standard of care that a reasonable person would
observe in the situation.” The prosecutor acknowledged that
that particular issue was a “difficult” one, particularly in
light of the circumstances of the case, which the prosecutor acknowledged as a “tragedy” and that he “honestly …
72                                                          State v. Rossiter

believe[d defendants] were surprised when” their daughter
died. Such testimony would have been in the realm of what
is allowed under Madrid v. Robinson, 

, 

 (1997), relied on by the majority.
         But here, the testimony ventured further into an
area that was “clearly” within the jury’s understanding and
therefore improper. By opining that failing to recognize the
risk that they had described amounted to a “gross deviation”
from the standard of care, the medical experts provided
an additional—potentially persuasive—basis which jurors
could lean on to make that emotionally difficult assessment.
See State v. Ramirez, 

, 

 (2007)
(consideration of the likelihood that the error affected the
outcome of the proceeding below for determination of the
gravity of the error).39
         That is especially true because Nelson’s and Nicol’s
impermissible opinions were not ones that a juror was likely
to overlook. Both opinions were offered at the conclusion of
the medical experts’ testimony on direct examination and
were presented as a summary of their previous helpful and
admissible testimony. Further, the effect of those opinions
was magnified by the fact that the two medical experts
agreed with each other by providing essentially identical
conclusions. In such a case, it is unlikely that the opinions
would have been easily dismissed by the jury.
         I also would conclude that defendant’s failure to
preserve the arguments she raises on appeal was not a plausible tactic to advance her defense. See State v. Fults, 

, 

 (2007) (the “possibility that defendant
made a strategic choice not to object” is a factor a court may
consider). Defendant did make objections to the challenged
opinion testimony, albeit on grounds other than the ones
made on appeal, so defense counsel’s failure to object on the
grounds defendant now raises was not an attempt to avoid
drawing attention to the opinions or emphasizing their significance. It is more plausible to conclude that counsel was

    39
       The first-degree manslaughter verdict was not unanimous, and an error
“is more likely to be considered grave when the case is a close one, as reflected by
a split jury verdict to convict.” State v. Inman, 

, 

(2015) (Sercombe, J., dissenting).
Cite as 

 (2019)                              73

either unaware of the correct arguments necessary to challenge that testimony or believed that the trial court would
again overrule the “ultimate issue” objection.
         For all of those reasons, I would conclude that
Nelson’s and Nicol’s testimony was not “otherwise admissible” under OEC 702 because it was unhelpful expert opinion testimony and also unfairly prejudicial, and therefore
that its admission constitutes an error apparent on the face
of the record. I would exercise our discretion to correct the
error, given its gravity.
        Accordingly, I dissent.