29
Submitted February 23, 2021, affirmed February 1, petition for review denied
July 20, 2023 (371 Or 308)
STATE OF OREGON,
Plaintiff-Respondent,
v.
AMBER ELLEN SELLS,
Defendant-Appellant.
Josephine County Circuit Court
17CR25302; A171406
524 P3d 517
Defendant appeals a judgment of conviction for murder in the second degree
with a firearm, ORS 163.115; ORS 161.610. She asserts that the trial court erred
in refusing to consider the impact that her methamphetamine intoxication had
on the mental state element of the offense. She argues that the trial court’s speaking verdict demonstrated that the court believed voluntary intoxication was not
available to negate the mental state required for murder, in direct conflict with
ORS 161.125(1), which allows the finder of fact to consider evidence of drug use,
dependency, or intoxication, “whenever it is relevant to negat[e] an element of
the crime charged.” Held: The trial court did not err. Although at times the trial
court may have improperly used the term “a defense” to mean both a complete
defense to the charges (as prohibited by the statute) and a defense theory that
negated the mental state (as permitted by the statute), the trial court, in its
speaking verdict, expressly considered defendant’s evidence of voluntary intoxication before it found that defendant had formed the intent to murder the victim.
Affirmed.
Thomas M. Hull, Judge.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Hellman, Judge,
and DeVore, Senior Judge.
HELLMAN, J.
Affirmed.
30 State v. Sells
HELLMAN, J.
Defendant appeals a judgment of conviction for
murder in the second degree with a firearm, ORS 163.115;
ORS 161.610, entered after a trial to the court. On appeal,
she asserts that the trial court erred in refusing to consider the impact that her methamphetamine intoxication
had on the mental state element of the offense. Specifically,
defendant argues that the trial court’s speaking verdict
demonstrated that the court believed voluntary intoxication
was not available to negate the mental state required for
murder, in direct conflict with ORS 161.125(1).1 The state
responds that defendant’s asserted error is not preserved
and that we should not exercise our discretion to review it
for plain error. For the reasons explained below, we agree
with defendant that the error was preserved. However, we
disagree with defendant that the trial court misapplied the
law. Accordingly, we affirm.
Because the question in this case involves whether
the trial court correctly understood the law, we examine
the record in some detail, focusing on the portions of the
record that involve the issue of intoxication and its possible relevance to defendant’s trial. The relevant facts of this
case are undisputed and mostly procedural. Defendant shot
and killed the victim while high on methamphetamine.
Defendant was arrested and subsequently charged with
murder with a firearm, ORS 163.115 and ORS 161.610.2
The issue of defendant’s voluntary intoxication
first arose in defendant’s pretrial motion to postpone the
trial. One reason trial counsel gave for needing additional
time was that he had “secured the services of an expert
1
ORS 161.125(1) provides:
“The use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication shall not, as such, constitute a
defense to a criminal charge, but in any prosecution for an offense, evidence
that the defendant used drugs or controlled substances, or was dependent
on drugs or controlled substances, or was intoxicated may be offered by
the defendant whenever it is relevant to negative an element of the crime
charged.”
2
ORS 163.115(1) provides, in relevant part:
“[C]riminal homicide constitutes murder in the second degree … [w]hen it
is committed intentionally[.]”
Cite as 324 Or App 29 (2023) 31
consultant and likely trial witness … in connection with
the [evidence of defendant’s intoxication] as [the evidence]
potentially relate[s] to voluntary intoxication and culpable mental state.” The state did not object, and the court
granted the motion.
The issue next arose in litigation surrounding the
state’s pretrial motion to exclude lay witness testimony. In a
written motion, the state asked the court to “prohibit[ ] the
defendant from offering testimony from lay witnesses that:
1) the defendant suffers from a mental illness; and 2) that
the defendant engaged in odd behavior prior to the murder.”3
At the hearing on the motion, defense counsel stated that he
wanted to consult an expert to “look at the case in terms of
voluntary intoxication and mental state.” He requested that
the court not rule on the motion until “I know more about
what [the expert] might say about voluntary intoxication or
the effects—possible combined effects of the psychotic drug
and methamphetamine [as well as how] voluntary intoxication potentially relates to defraying [the] intentionality
and knowingly [elements of the offense].” He then provided
the court with various hypothetical situations in which layperson testimony would be relevant to the defense. The court
responded with its own hypothetical stating, “[T]he most
direct circumstance would be [a lay witness stating] that
I saw her snort or consume[ ] methamphetamine an hour
before [the killing]. I don’t see that as a defense.” Defense
counsel responded, “Voluntary intoxication bears on intent
…[.]”
At trial, defendant admitted that she shot the victim. Her defense was that there was insufficient evidence
to conclude beyond a reasonable doubt that she acted with
conscious intent to kill the victim, as is required by ORS
163.115. Instead, she argued that she acted recklessly with
a conscious disregard for human life and therefore had committed the lesser-included offense of manslaughter.
In advocating for that mental state, defense counsel
highlighted the impact of methamphetamine intoxication on
defendant’s ability to form intent. During cross-examination
3
The state also filed a motion for a psychiatric evaluation of defendant.
Defendant stipulated to that motion.
32 State v. Sells
of Dr. Penumetcha, the state’s expert psychiatrist, the parties and the court engaged in the following colloquy:
“[DEFENSE COUNSEL]: All right. Dr. Penumetcha,
you testified quite clearly for [the state] that … there was
nothing to bar [defendant] from forming the intent to kill?
“[DR. PENUMETCHA]: Psychiatrically, yes.
“[DEFENSE COUNSEL]: Thank you. Good qualification there. Can substance use or abuse prevent or inhibit
the forming of that intent?
“[DR. PENUMETCHA]: No.
“[DEFENSE COUNSEL]: They cannot?
“[DR. PENUMETCHA]: Well, substance use, I don’t
think it will affect an individual’s ability to formulate an
intent. I should have been more clear. Sorry.
“[DEFENSE COUNSEL]: Okay. Now, I want to make
sure I have this. So it is your clinical determination
whether or not it corresponds with current Oregon law, it is
your clinical statement today that the use or abuse of substances cannot inhibit a person’s capacity to form intent?
“[DR. PENUMETCHA]: So I think if—we’re generalizing a bit here, when someone uses a substance and becomes
psychotic, they can be unable to formulate an intent. I’m
being more narrow and specific that substance use in itself,
meaning that if someone takes methamphetamine, it does
not affect their ability to formulate an intent.
“[DEFENSE COUNSEL]: Does it prevent their capacity to form an intent?
“[DR. PENUMETCHA]: No, it doesn’t affect their—
“[DEFENSE COUNSEL]: Can it inhibit their capacity
to form intent?
“[DR. PENUMETCHA]: That’s—
“[DEFENSE COUNSEL]: Can it mar their capacity to
form intent?
“[DR. PENUMETCHA]: No.
“[DEFENSE COUNSEL]: How about alcohol?
“[PROSECUTOR]: Objection, relevance.
Cite as 324 Or App 29 (2023) 33
“THE COURT: I’m not sure what you’re trying to
compare.
“[DEFENSE COUNSEL]: All right. I’ll go another
direction. Substances—
“THE COURT: And what’s—
“[DEFENSE COUNSEL]: —of any kind inclu—
“THE COURT: What’s ringing in my head is your first
question about that you’re asking—
“[DEFENSE COUNSEL]: Well, I’m trying to find a
way to—
“THE COURT: —with regard to the fact that it’s not a
defense. But you go right ahead and keep asking. Go ahead.
“[DEFENSE COUNSEL]: Well, I mean, there is—
“THE COURT: Well, I’m not asking you to explain it
for me—
“[DEFENSE COUNSEL]: Sure. Yes, Judge.
“THE COURT: I’m just telling you—
“[DEFENSE COUNSEL]: We’ll argue about that, yes.
“THE COURT: —that I’m thinking about that and I’m
sure it’ll become an argument. Go ahead.”
During closing argument, defense counsel asked
the court to consider the effect of defendant’s intoxication on
the mens rea element of the offense.
“We are pointing you to, however, the existence of mental health issues, including personality disorders, methamphetamine, her history as they contribute to whether or not
she formed the intent, period, Judge, necessary for murder. In conjunction with the voluntary intoxication defense
in which you are able to take … into consideration as to
whether or not she had a qualifying disorder for purposes
of intent or lack thereof.”
Defense counsel then pointed out the inconsistency between
Penumetcha’s testimony, and the standard jury instruction
which permits a jury to consider a person’s voluntary intoxication in evaluating the defendant’s state of mind:
“But when pressed, [Dr. Penumetcha] insisted that no
amount of intoxicants, here meth, could ever impact or
34 State v. Sells
limit the person’s capacity to form intent. To mitigate it,
potentially to recklessness. That’s contrary to the standard
jury instruction on voluntary intoxication, which permits,
in cases of intentional or knowing, not reckless to start …
permits the factfinder to take into consideration—specifically take into consideration voluntary intoxication as it
might rebut the finding of the appropriate culpable mental state, here intent. And that’s one of the standard jury
instructions I’d recall to the Court’s attention. You know
about it, of course.
“…
“We question whether Dr. Penumetcha considered or was
even aware of the meaning of intent as applied to the law
and degrees of criminal homicide.”
To illustrate his point, defense counsel offered the
following hypothetical:
“[H]ypothetically, we have some guys—some fellows drinking up on BLM- BLM lands, shooting cans and just partying up there. Intoxicated. One guy’s pretty sure of his
ability with a gun, decides he wants to scare another fellow
and make him jump out of his shorts. Pops off a shot in his
general direction, intending to fire in his general direction,
but intending to scare him and have a gag, a laugh with
the other guys. Instead, it catches the guy in the head and
he’s dead. That’s not murder, Judge, that’s manslaughter.”
The state addressed the issue during its closing
argument:
“Meth-induced psychosis is no defense. Whether or not
she would have made this choice sober has no bearing on
the decision. If the meth caused her to do it, if the meth
made her decide to intentionally take [the victim’s] life, she
is guilty of murder. It doesn’t matter that she would not
have done this when she was sober. It is not an excuse, and
for good reason. We don’t want people killing, we don’t want
people hurting, we don’t want people committing crimes
and then being able to fall back on the excuse of voluntary
intoxication. If you decide to kill because you’ve taken too
much meth, you are still as guilty of murder as if you made
that choice stone-cold sober. And for good reason.
“If you get high on meth and because you’re high on
meth you take a life, you have assumed that risk, and you
Cite as 324 Or App 29 (2023) 35
must bear the consequences of that choice. If you are high
on meth and decide to kill, you have no defense.”
The trial court then entered a speaking verdict in
which it concluded beyond a reasonable doubt that defendant was guilty of murder. The court explained:
“[I]’ll start with psychological issues that [defendant]
did or didn’t have. The psychiatrist made it clear that she
is able to form an intent, which I think she did. We know
that she doesn’t have a mental disease or defect that would
affect her ability. I also note that there could be some psychosis because of her drug use and I appreciate that. I also
understand that voluntary intoxication does not and is not
a defense.
“…
“Beyond that, as I indicated—as [the state] indicated
yesterday that it’s not a defense. Where that comes in and
where it can have an impact, for example, was the two
drunken folks [and] one tries to shoot somebody close or
comes close and actually has an accident. I think that’s an
accident. I don’t think that’s showing—as long as that individual had an intent to kill, I think that’s all that’s necessary. And they didn’t in your … example[.]”
PRESERVATION
We first address the state’s contention that defendant’s argument is not preserved. The state argues that
to preserve the argument, defense counsel was required
to object to the trial court’s speaking verdict after it was
issued. We disagree.
“[T]he primary purposes of the preservation rule
are to allow the trial court to consider a contention and correct any error, to allow the opposing party an opportunity
to respond to a contention, and to foster a full development
of the record.” State v. Clemente-Perez, 357 Or 745, 752,
359
P3d 232 (2015). The Supreme Court, however, has cautioned
that “problems … may arise if the preservation onion is
sliced too thinly.” State v. Amaya,
336 Or 616, 629,
89 P3d
1163 (2004). Thus, “[p]recisely what is required [for preservation] may vary with the individual circumstances of each
case.” State v. K. J. B.,
362 Or 777, 790,
416 P3d 291 (2018).
36 State v. Sells
“In some circumstances, a fairly abbreviated shorthand reference may suffice to put the trial court and
the parties on notice of the nature of the argument.” Id.
Nevertheless, to be adequately preserved, the reference
“must be used in a way and context in which the other parties and the court would understand that the word or phrase
refers to a particular legal or factual argument, and also
would understand from that single reference the essential
contours of the full argument.” State v. Haynes,
352 Or 321,
335,
284 P3d 473 (2012).
An objection is not the only method by which a
defendant may preserve an argument for appeal. See, e.g.,
State v. Sorrow, 312 Or App 40, 44-45,
489 P3d 1127 (2021)
(explaining that where the defendant raises an issue, the
state responds, and the trial court, in its verdict, offers an
explanation as to why it agreed with the state, the issue
is “adequately raised and ruled on, and, consequently, preserved”); State v. Nicholson,
282 Or App 51, 54-55,
383 P3d
977 (2016) (concluding an objection by defense counsel is not
necessary for preservation when defense counsel raised the
issue in closing argument, the prosecutor understood and
engaged with that issue, and the court endorsed the state’s
legal position). See also, State v. Satterfield,
274 Or App 756,
759,
362 P3d 728 (2015), rev den,
358 Or 794 (2016) (concluding that where defense counsel’s argument throughout trial
was consistent with his argument on appeal and where his
closing argument “[drew] the court’s attention to the correct
rule,” the argument was preserved). Additionally, in a bench
trial, a defendant may preserve an issue by submitting jury
instructions to the court and allowing the court “to instruct
itself on the correct version of the law, thereby creating a
record that allows us to review whether the court applied
the correct principles of law in reaching its verdict.” State v.
Colby,
295 Or App 246, 252,
433 P3d 447 (2018).
Here, defense counsel repeatedly raised the issue of
voluntary intoxication as it relates to the mental state element of the offense. The state responded to that issue during
its closing argument, and the trial court addressed the issue
during its speaking verdict. That sequence of events, alone,
would be sufficient to preserve defendant’s argument for
Cite as 324 Or App 29 (2023) 37
appeal. See Nicholson,
282 Or App at 54-55; Sorrow,
312 Or
App at 44-45.
In addition, here, like in Satterfield, 274 Or App at
759, defense counsel’s argument throughout trial was consistent with his argument on appeal, and defense counsel
called the court’s attention to the applicable statute during
closing argument, noting that Penumetcha’s testimony was
“contrary to the standard jury instruction on voluntary
intoxication, which permits, … the factfinder to take into
consideration … voluntary intoxication as it might rebut
the finding of the appropriate culpable mental state, here
intent.”
We conclude that the purposes of preservation were
met in this case. Although some of defense counsel’s references to the issue could be characterized as abbreviated,
we cannot say that “other parties and the court would [not]
understand” that defense counsel was “refer[ing] to a particular legal or factual argument.” Haynes, 352 Or at 335.
Nor can we say that the state was “taken by surprise, misled, or denied opportunities to meet an argument.” Davis v.
O’Brien,
320 Or 729, 737,
891 P2d 1307 (1995).
Because we conclude that defendant’s argument is
preserved, we need not exercise our discretion to review for
plain error. Instead, because the facts relevant to the legal
issue that we address are undisputed, we review the trial
court’s application of law to the facts for legal error. State v.
Ehly, 317 Or 66, 75,
854 P2d 421 (1993).
LEGAL ANALYSIS
Defendant argues that the trial court misapplied
ORS 161.125(1) when it summarily concluded that “voluntary intoxication is not a defense” and refused to consider
the broader issue of the effect of voluntary intoxication on
defendant’s ability to form intent. Under ORS 161.125(1),
“[t]he use of drugs or controlled substances, dependence
on drugs or controlled substances or voluntary intoxication shall not, as such, constitute a defense to a criminal
charge, but in any prosecution for an offense, evidence
that the defendant used drugs or controlled substances, or
was dependent on drugs or controlled substances, or was
38 State v. Sells
intoxicated may be offered by the defendant whenever it is
relevant to negative an element of the crime charged.”
The trial court was thus correct that voluntary
intoxication is not “a defense” as that term is defined in the
statute. But the inquiry does not stop there. ORS 161.125(1)
states that voluntary intoxication “shall not, as such, constitute a defense to a criminal charge[.]” (Emphasis added.)
That phrase must be read in connection with the next part
of the sentence which states that evidence of voluntary
intoxication “may be offered … whenever it is relevant to
negat[e] an element of the crime charged.” Id. The latter
half of the sentence establishes that evidence of voluntary
intoxication can be considered to determine the defendant’s
mental state at the time of an offense. Practically speaking,
then, voluntary intoxication is not “a defense” that would
allow a defendant avoid responsibility for criminal conduct
altogether. However, it is potentially relevant to the defendant’s state of mind and could lead to a conviction for a
crime such as manslaughter, which reflects a lesser degree
of criminal culpability than intentional murder.
The concern in this case is that the trial court may
have improperly used the term “a defense” to mean both a
complete defense to the charges (as prohibited by the statute) and a defense theory that negated the mental state (as
permitted by the statute).
Indeed, there were several times in the pretrial and
trial proceedings where the trial court appeared to conflate
both parts of the statute. For example, when the issue of
defendant’s voluntary intoxication arose during a pretrial
hearing on the state’s motion to exclude lay testimony, the
trial court stated, “I don’t see that as a defense.” When
defense counsel reminded the court that “voluntary intoxication bears on intent,” the court responded, “I guess I’m
more—it may be a rhetorical question for you to think about
whether somebody can use that as a defense.”
In addition, during cross-examination, the state’s
expert testified that when someone uses substances “they
can be unable to formulate intent,” but that substance use,
in and of itself, does not affect an individual’s ability to form
intent or inhibit their capacity to form intent. The state
Cite as 324 Or App 29 (2023) 39
objected, citing relevance. In sustaining the objection, the
trial court cautioned defense counsel against continuing to
explore that issue, explaining that “What’s ringing in my
head is … the fact that it’s not a defense.”
Finally, in its speaking verdict, the trial court
referred favorably to the state’s closing argument that voluntary intoxication is not “a defense.” However, based on its
characterization of defense counsel’s hypothetical in that
context, the trial court seemingly did not recognize that
defense counsel had offered evidence of voluntary intoxication to lessen, not eliminate, criminal culpability.
In those examples, the trial court responded to
defendant’s arguments about a lack of intent with a comment about the unavailability of “a defense.” Those comments could be read as the trial court eliminating the possibility that voluntary intoxication could be used to lessen,
but not eliminate, defendant’s criminal culpability. That, of
course, would be incorrect under ORS 161.125(1).
If those were the only statements in the record
regarding the trial court’s engagement with the voluntary
intoxication issue, we may very well have agreed with defendant that the trial court misapplied the law. But they are
not the only statements. When it announced its verdict,
the trial court explicitly found that defendant had formed
the required intent, stating “the psychiatrist made it clear
that she is able to form an intent, which I think she did.”
(Emphasis added.) The trial court also indicated that it had
considered the evidence of defendant’s voluntary intoxication, stating that “there could be some psychosis because of
her drug use and I appreciate that.” In light of those clear
statements in the speaking verdict, we do not read the trial
court’s next statement that “voluntary intoxication does not
and is not a defense” as a misstatement of the law. Although
the trial court may have been focused on the first part of
the statute for most of the trial, in announcing its verdict it
did consider defendant’s evidence of voluntary intoxication
before finding that defendant formed the intent to murder
the victim.
Affirmed.
