State v. Britt

No. 659              September 18, 2024                       91

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                 JUSTIN CHARLES BRITT,
                    Defendant-Appellant.
               Josephine County Circuit Court
                    21CR25468; A178589

   Brandon S. Thueson, Judge.
   Submitted March 8, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
   MOONEY, J.
   Affirmed.
92   State v. Britt
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         MOONEY, J.
         A jury found defendant guilty of second-degree
assault, ORS 163.175,1 following a physical altercation with
his neighbor, K, during which defendant kicked K repeatedly in his side and head. Defendant appeals the resulting
judgment of conviction, raising three assignments of error.
In his first assignment, defendant contends that the trial
court erred by allowing a nurse practitioner to testify “to
[the] observations and conclusions made by [the] radiologist,”
whose report is in the victim’s medical records. Defendant’s
second assignment challenges the trial court’s decision to
admit those medical records into evidence. He argues that
the findings and impressions in the radiology report are out-of-court statements of the radiologist that do not qualify as
business records under OEC 803(6) and, therefore, should
have been excluded as hearsay under OEC 802. In the alternative, defendant argues that the admission of those records
violated his confrontation rights under Article I, section 11,
of the Oregon Constitution. In the third assignment, defendant contends the trial court erred by denying his motion
for judgment of acquittal (MJOA), arguing that the evidence
was legally insufficient to establish “serious physical injury”
under ORS 163.175. Finally, in a supplemental assignment,
defendant contends that the trial court lacked jurisdiction
to enter a judgment against him because he was held in custody for more than 180 days pending trial. We affirm.
                           I. THE FACTS
          Defendant knocked K to the ground during a physical altercation. He then repeatedly kicked K in his head and
upper body. Five days later, K sought medical treatment at
the Three Rivers Medical Center Emergency Department for
his injuries and ongoing pain. K was seen in the emergency
department by the Nurse Practitioner (NP) on duty who
spoke with K, examined him, and obtained various studies, including computed tomography (CT) scans of the head
   1
    ORS 163.175 provides, in part:
       “(1) A person commits the crime of assault in the second degree if the
   person:
       “(a) Intentionally or knowingly causes serious physical injury to
   another[.]”
94                                                State v. Britt

and chest. The radiology report of the chest CT reflected
“minimally displaced … rib fractures.” The report of the
head CT contained a number of findings, including a “mild
hyperdense thickening of the left tentorium compared to the
right,” and the radiologist’s impression that a “[t]hin subdural hemorrhage [could not] be excluded.” The attending NP
reviewed the CT images himself and he also read the radiology reports concerning those images. He diagnosed K with
rib fractures and a “subdural hematoma.”
          The state called the NP as a witness in its case-inchief. The NP testified that he has both a bachelor’s degree
and a master’s degree in nursing, that he completed a lengthy
clinical rotation in the emergency department setting as part
of his additional training to become a nurse practitioner, and
that he is board certified in emergency medicine. The NP also
testified that he is trained to read CT studies, that he conducted a “wet read[ ]” of K’s CT scans, and that he also reviewed
the radiologist’s report of those scans. The CT scans revealed
rib fractures and “evidence of [a subdural hematoma].”
         The state also called K, who testified that he experienced pain in his ribs for seven to eight months and that,
when he laid on his side, he could feel them “grinding.” K
also testified that he had headaches for three to four months
following the altercation.
     II. ADMISSIBILITY OF THE MEDICAL REPORTS
A.    Preservation
         We reject the state’s contention that defendant
failed to preserve his evidentiary arguments for appeal. In
the proceedings below, defendant objected to the admission
of the medical records and to the NP’s testimony about certain findings contained within the medical records, arguing
that the findings reflected in the radiology reports constitute hearsay outside the scope of the business records exception, that those findings relate to the “biggest issue” in the
case, and that defendant would like to cross-examine the
radiologist who created those reports. Those objections were
sufficiently specific to alert the trial court and the state to
defendant’s arguments and to preserve them for appeal.
See Peeples v. Lampert, 

, 

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(2008) (explaining that preservation “gives a trial court the
chance to consider and rule on a contention” and permits
“the opposing party to respond to a contention”); see also
State v. Harris, 

, 

 (2022)
(holding that the defendant’s generic confrontation objection
preserved his argument for appeal because the objection
emphasized the witness’s absence and the resulting inability to cross-examine that witness, thereby triggering the
state’s burden to show unavailability).
B.       The Nurse Practitioner’s Testimony
         We understand the focus of defendant’s challenge
to the NP’s testimony to be on the applicability of the business records exception to the radiology reports and on the
constitutional question raised under Article 1, section 11,
of the Oregon Constitution. We nevertheless begin by noting, generally, that “[n]urse practitioners are licensed to provide primary health care and are, by rule, ‘independently
responsible’ for health services” that they provide. Cook v.
Workers’ Compensation Department, 

, 

 (1988). There is no dispute that the NP was the
medical provider who attended to K when he presented to
the emergency department. He was called as a witness to
testify about his medical encounter with K, and in that context, he testified as a medical expert under OEC 702,2 and
he was permitted—and could be compelled—to testify to the
facts and data underlying his medical opinion even if those
facts and data were not otherwise admissible. See OEC 7033
and 7054. The NP was, in fact, cross-examined about the
     2
       OEC 702 provides:
          “If 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.”
     3
       OEC 703 provides:
          “The facts or data in the particular case upon which an expert bases an
     opinion or inference may be those perceived by or made known to the expert
     at or before the hearing. If of a type reasonably relied upon by experts in the
     particular field in forming opinions or inferences upon the subject, the facts
     or data need not be admissible in evidence.”
     4
       OEC 705 provides:
          “An expert may testify in terms of opinion or inference and give reasons
     therefor without prior disclosure of the underlying facts or data, unless the
96                                                             State v. Britt

data and information underlying his evaluation of K, as well
as the role that the radiology reports played in his evaluation and diagnostic process.
        Defendant’s first assignment concerning the NP’s
testimony is, as a practical matter, closely intertwined with
his second assignment concerning the admissibility of the
medical records. We, therefore, turn to that now.
C. The Medical Records
         We review the question whether a record falls within
the business records exception to the hearsay exclusionary
rule for legal error. OEC 803(6); Arrowood Indemnity Co. v.
Fasching, 

, 

 (2022). We are
bound by the trial court’s factual findings that underlie the
application of OEC 803(6), so long as those findings are supported by any evidence in the record. Arrowood, 

 (citing State v. Cunningham, 

, 

 (2004), cert den, 

 (2005)).
        OEC 803(6) excepts business records from exclusion
as hearsay under OEC 802. OEC 803 provides, as relevant:
        “The following are not excluded by [OEC 802], even
     though the declarant is available as a witness:
         “…
         “(6) A … report [or] record … of acts, events, conditions, opinions, or diagnoses, made at or near the time by,
     or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the … report [or] record … all as
     shown by the testimony of the custodian or other qualified
     witness, unless the source of information or the method
     of circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this subsection
     includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted
     for profit.”
That rule expressly includes records containing diagnoses and opinions reliably made in the ordinary course of
     court requires otherwise. The expert may in any event be required to disclose
     the underlying facts or data on cross-examination.”
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business, contemporaneously with, or shortly after, the matters that are recorded. In other words, medical records created and maintained through routine, reliable, and contemporaneous business practices are included within the scope
of OEC 803(6).
         Defendant relies on the Legislative Commentary
to OEC 803(6), which refers to the pre-evidence code opinion, Streight v. Conroy, 

, 

 (1977), to
argue that the medical records here are beyond the scope
of OEC 803(6). The commentary cautions that the legislature did not intend “automatically to allow into evidence all
business records containing opinions or diagnoses,” and it
instructs that the admission of hospital records “should be
read in light of” Streight. Legislative Commentary to OEC
803(6), reprinted in Laird C. Kirkpatrick, Oregon Evidence
§ 803.06[2], 821 (7th ed 2020). In Streight, the court held
that a doctor could not read verbatim another doctor’s
report describing the results of a controversial procedure
into evidence if the doctor who performed the procedure
was not available for cross-examination. 

.
We read Streight, and the legislative commentary, to support the trial court’s admission of the medical records here
because the records consist of “ordinary diagnostic findings
customarily based on objective data” rather than “diagnostic opinions which on their face are speculative.” 

 (internal quotation marks omitted); see also Laird C.
Kirkpatrick, Oregon Evidence § 803.06[2]-[3], 821, 826 (7th
ed 2020) (“Routine opinions formed in the course of professional activity, e.g., ‘Plaintiff has a broken leg,’ are likely
to be admitted. However, more speculative, controversial,
or complicated opinions, particularly when they directly
relate to a central, contested issue in the case, e.g., ‘Plaintiff
is permanently and totally disabled,’ are more likely to be
excluded.”).
        The specific records in question are the radiology
reports which include the radiologist’s findings and impressions of the head and chest CT scans. No one contends
that CT scans are controversial. The radiologist’s findings
included “mild hyperdense thickening of the left tentorium
compared to the right,” that a “[t]hin subdural hemorrhage
98                                              State v. Britt

cannot be excluded,” and “minimally displaced left ninth and
10th lateral rib fractures.” There is no suggestion that those
findings are anything other than routine, based on scans
performed using common imaging equipment. Indeed, the
radiologist’s report is self-limiting. By noting that he could
not exclude a subdural hemorrhage, the radiologist avoided
speculating about the presence or absence of such a hemorrhage. The trial court did not err in admitting the victim’s
medical records, including the radiology report.
D. Defendant’s Right to “Meet the Witnesses Face to Face”
         We address only briefly defendant’s alternative
argument asserting that the admission of the hospital
records violated his confrontation rights under the Oregon
Constitution. Whether he was denied his constitutional
right to “meet the witnesses face to face” is a question of
law. Or Const, Art I, § 11; State v. Rockafellor, 

, 

 (2023). Defendant cites to State v.
Campbell, 

, 

 (1985), and argues,
essentially, that even if the medical records were admissible as business records under OEC 803(6), the admission
of those records violated his state constitutional right to
confront witnesses in the absence of evidence establishing
the unavailability of the radiologist. Campbell, a child sex
abuse case, was decided by a divided court. It concerned,
among other things, the admissibility of a three-year-old
child victim’s out-of-court statements under OEC 803(18)(a)
as that code provision existed in 1985, concluding that “the
witness must be produced and declared incompetent by the
court to satisfy … Article I, section 11[.]” Campbell, 

. Defendant reads Campbell too broadly. See State
v. Copeland, 

, 

 (2013) (noting
that the court in Campbell did not address whether “certain
types of documentary hearsay evidence simply do not implicate the [state] confrontation right at all”).
        In Copeland, the Supreme Court concluded that certain hearsay statements contained in public records were
not “witness statements” within the meaning of Article I,
section 11: “Although official records may contain hearsay
declarations, such declarations are not ‘witness’ statements
that offend a defendant’s confrontation right if they are
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confined to matters that the officer is bound by administrative duty to report and do not include investigative or gratuitous facts or opinions.” Id. at 839. However, neither we nor
the Supreme Court have addressed the question of whether
“private business records” such as the hospital records in
question here “fall outside the category of ‘witness statements’ to which the [state] confrontation right attaches[.]”
State v. Kini, 

, 

 (2020).
          We concluded in Kini that admission of the medical
records at issue there did, in fact, violate the defendant’s
confrontation rights because those records did not simply
report the result of a blood test, they also contained “the
declarants’ opinion and judgment” describing the defendant
as intoxicated, opining that the level of intoxication was
“acute,” diagnosing him with “alcohol abuse,” and “repeatedly
describing him as ‘combative.’ ” 

 (brackets omitted).
But we expressly limited our constitutional analysis to the
records and facts of that case. 

. As Copeland and
Kini demonstrate, not all out-of-court statements constitute
“witness statements” for purposes of Article I, section 11. On
appeal, defendant has not engaged with the case law and
the trial court’s ruling, and we will not develop an argument
for him. See Harris, 

 (declining to develop
an argument on the state’s behalf regarding the witness’s
unavailability); see also R. S. R. v. Dept. of Human Services,

, 

 (2022) (“It is insufficient
for [the] plaintiff to merely identify [the relevant] authorities
and task us with determining how, under controlling case
law, they apply to his case.”). We, therefore, reject defendant’s first and second assignments of error.
                III.   DEFENDANT’S MJOA
         In his third assignment, defendant challenges the
trial court’s denial of his MJOA, arguing that the evidence
was insufficient to show beyond a reasonable doubt that K
suffered serious physical injury. The trial court is to grant
an MJOA if “the evidence … is such as would not support
a verdict against the defendant.” ORS 136.445. Where, as
here, the court denied the MJOA, we view the evidence on
appeal in the light most favorable to the state, and if it is
sufficient to support a verdict against defendant, then we
100                                                           State v. Britt

must affirm the trial court. State v. Hall, 

,

 (1998).
        A person commits second-degree assault if they “[i]
ntentionally or knowingly cause[ ] serious physical injury to
another[.]” ORS 163.175. “ ‘Serious physical injury’ means
a physical injury which creates a substantial risk of death
or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” ORS 161.015(8).
The state argued that the subdural hematoma created a
substantial risk of death5 and that the rib fractures caused
a protracted impairment of health.
         We have previously held that a concussion may
cause a “protracted impairment of health” sufficient to
establish “serious physical injury” in the context of second-degree assault. State v. Stone, 

, 

, adh’d to as modified on recons, 

, 

 (2023). In Stone, however, we held that the evidence was insufficient to establish a protracted impairment
of health where the victim suffered some concussive symptoms “for up to three months,” but there was minimal evidence as to the frequency or severity of those symptoms. 

. However, we distinguished the victim’s symptoms,
which included confusion and a “lack of cognizance,” from
pain caused by physical injuries. 

; see also State v.
Dillon, 

, 

 (1976) (holding that the evidence was insufficient to show protracted
impairment of health where the victim denied experiencing
any pain caused by a bullet fragment and where the doctor
testified only that the fragment could possibly affect the victim’s nerves). As to whether an impairment of health is “protracted,” we have concluded that disfigurement that lasts
more than five months is protracted and therefore qualifies
as serious physical injury. State v. Alvarez, 

, 

 (2010), rev den, 

 (2011) (concluding that a scar visible five months after the injury qualifies
as “protracted disfigurement” under ORS 161.015(8)); see
    5
      Because we conclude that the trial court did not err in denying defendant’s
MJOA based on the sufficiency of the evidence to establish a protracted impairment of health, we, like the trial court, need not and do not address whether the
evidence establishes that the assault created a substantial risk of death.
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also State v. Kinsey, 

, 

 (2018)
(concluding that the victim’s disfigurement was “protracted”
where the victim’s scar was visible more than six months
after assault occurred).
         Here, the trial court denied the MJOA because a
rational jury could decide that K suffered protracted impairment of his health as a result of the assault. The trial court
walked through the testimony as it explained its ruling
from the bench. It noted that there was medical testimony
“that ribs can take up to three months to heal” and “that
post-concussive syndrome could explain [the] headaches
that [K] complained of for up to four months and that ribs do
take a while to heal.” The court noted that K testified “about
headaches for four months” and “rib pain that impacted
even the way he sleeps for seven or eight months.”
         The trial court did not err in denying the MJOA
because a rational factfinder could conclude on this record
that K suffered a protracted impairment of his health. Unlike
the victim in Stone, who had only vague concussive symptoms for approximately three months, the evidence here is
that K continued to have serious symptoms for over half a
year and, specifically, experienced pain that impacted his
ability to lay on his side. Based on that evidence, a rational
jury could certainly conclude that K’s injuries impaired his
health and lasted for a protracted period of time. We therefore conclude that the evidence concerning K’s injuries and
the length of time he continued to experience symptoms
related to those injuries was sufficient to establish the “serious physical injury” element of second-degree assault.
IV. SUPPLEMENTAL ASSIGNMENT - JURISDICTION
        Finally, in a supplemental assignment of error,
defendant challenges his conviction arguing that the trial
court was without jurisdiction over him because he was held
in custody for more than 180 days pending trial in violation
of ORS 136.295(4)(a).6 We have previously held that the statutory limits on pretrial custody provide criminal defendants
    6
      ORS 136.295(4)(a) provides, in relevant part, that the court may “order an
extension of custody and postponement of the date of trial” but that “in no event
shall the defendant be held in custody before trial for more than a total of 180
days.”
102                                            State v. Britt

a means to obtain pretrial release but do not otherwise entitle a defendant to dismissal if they are held beyond those
limits. State v. Chelemedos, 

, 

,
rev den, 

 (2017). Defendant has not shown a connection between the time he spent in jail and his claim that
it caused him stress and anxiety, which, in turn, actually
prejudiced him by negatively impacting his ability to retain
counsel and maintain an effective attorney-client relationship. See Chelemedos, 398 Or App at 82 (holding that the
defendant “has not shown that his anxiety caused actual
prejudice that would warrant dismissal of the charges”).
The trial court was not deprived of jurisdiction, and it did
not err by entering judgment against defendant.
        Affirmed.