Submitted February 25, 2014
Lane County Circuit Court 201122376. Debra K. Vogt, Judge.
Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.
[269 Or.App. 484] NAKAMOTO, J.
In this criminal case, defendant appeals a judgment convicting him of first-degree unlawful sexual penetration, ORS 163.411 (Count 2); first-degree sexual abuse, ORS 163.427 (Count 3); fourth-degree assault constituting domestic violence, ORS 163.160 (Count 6); strangulation constituting domestic violence, ORS 163.187 (Count 7); and harassment, ORS 166.065 (Count 10). On appeal, defendant argues that the trial court erred in (1) ruling that defendant's expert witness was not qualified to testify about the effect of drug-induced dementia on a person's ability to form intent, (2) ruling that defendant had voluntarily waived his right to be present at trial when he was hospitalized midtrial following a suicide attempt, and (3) denying defendant's motion for a continuance in light of his hospitalization. As explained below, we conclude that defendant's expert was qualified to testify about the effect of drug-induced dementia on a person's ability to form intent and that, therefore, the trial court erred in excluding that testimony. We further conclude that the error was not harmless as to the counts alleging that defendant acted knowingly or intentionally. Accordingly, we reverse and remand on Counts 2, 3, 7, and 10; affirm defendant's conviction on Count 6; and remand for resentencing.
The crimes in this case involved defendant's assault and sexual abuse of W, a woman with whom he had had an intimate relationship. Defendant had been staying with W at her house one weekend. At some point, defendant hit W, took her to the bedroom, and forcibly touched and penetrated her vagina with his fingers. During the incident, defendant placed his arm on W's throat, making it difficult for her to breathe. Following the incident, one of W's friends, Garcia, telephoned W, and she answered the phone, crying. W told Garcia that she wanted defendant out of her house. Garcia called W's father, but could not reach him and left a message. Garcia then decided to go to W's house and brought another man, Martin, to help him.
[269 Or.App. 485] When Garcia and Martin arrived at the house, Garcia told defendant that W wanted him to leave and told defendant to get his things and go. Defendant began to gather his belongings but then went into one of the bedrooms. Garcia and Martin followed defendant and found him sitting on the bed holding two large knives. Garcia pulled out his handgun and told defendant to put the knives down or he would shoot him. Defendant put the knives down and went to the kitchen; Garcia told him again that he needed to get his things and leave. Defendant then grabbed a telephone and ran outside the house. Defendant dialed 9-1-1 and began urinating on W's car. W's father had arrived and tried to prevent defendant from going back inside the house and defendant shoved him into a wall. Eventually, police officers arrived and placed defendant under arrest.
The officers testified that defendant was visibly intoxicated, that he had " watery eyes, droopy eyelids, was very lethargic, slow with his motions," and that he " [c]ouldn't really stand on his feet by himself and had difficulty tracking questions and conversation." The officers attempted to get an explanation from defendant about what had happened.
One of the officers testified that defendant had told him that he and W " were just partying. And she likes the rough stuff. She got what she asked for." The officer tried to get more information about what defendant meant by that, but defendant passed out in the patrol car. Defendant was charged with first-degree burglary (Count 1); two counts of first-degree unlawful sexual penetration (Counts 2 and 4); two counts of first-degree sexual abuse (Counts 3 and 5); fourth-degree assault constituting domestic violence (Count 6); strangulation constituting domestic violence (Count 7); unlawful use of a weapon (Counts 8 and 9); and harassment (Count 10).
At trial, defendant testified that he and W had had consensual sex the night before the incident and that the next day he had taken a number of drugs, including what he thought to be liquid morphine, Oxycodone, and Xanax. Defendant testified that the drugs had caused him to pass out and that he had no memory of the incident, only partial memory of Garcia being at the house, and no memory of the police or his arrest.
[269 Or.App. 486] Following defendant's testimony, defense counsel intended to call as an expert witness Dr. Robert Julien, a retired anesthesiologist, to testify about the drugs that defendant had testified he took and their effects. At the state's request, the court held an OEC 104 hearing to determine Julien's qualification as an expert. Julien testified that he held advanced degrees in pharmacology, which is the science of how drugs affect living organisms. Julien also stated that his area of research in that field was psychopharmacology, which he described as the study of how drugs affect the brain and behavior, and that he had been the director of a psychopharmacology research laboratory at the University of California, Irvine. Julien testified that he had left that research in the early 1980s to practice medicine as an anesthesiologist. He also stated that he had testified in court as an expert in toxicology pharmacology around 60 times.
Defense counsel asked Julien, hypothetically, what symptoms a person weighing approximately 150 pounds would show if the person took " a dose of liquid morphine together with two or more Oxycodones, and one standard prescription Xanax, possibly in connection with some amount of ethyl alcohol." Julien testified that he would expect the person to appear sedated, with slurred and garbled speech, glassy eyes, droopy eyelids, confusion, and trouble standing up. He also said that blackout would be among the symptoms that he would expect. Julien then explained that a blackout is a loss of memory and is " essentially a drug-induced dementia, very similar to what you would see in somebody who had organic dementia with a disease such as Alzheimer's."
Julien stated that he had authored an article entitled, " To Intend or Not to Intend. That is the Question," to explain the difference between a person who is unconscious and a person who is in a state of drug-induced dementia. The difference, Julien explained, was that a person experiencing a drug-induced dementia, like a person with Alzheimer's, appears awake and normal, but does not have the ability to form new memories. That inability to form memories, Julien explained, was " an index of brain function and of [269 Or.App. 487] dysfunction of your executive cortex where we make judgments, decisions, intellect, IQ, all that kind of thing." Julien explained that he had induced dementia in his anesthesia patients in his medical practice and that, in his opinion, a person's inability to form memory as the result of dementia, either drug-induced or organic, affects the person's ability to form intent. Specifically, he said:
" If someone is demented, either organically or drugcaused, it is my contention, from many years of intentionally doing this to patients, that they cannot meet the legal definition of intent. For example, if you've had a Benzodiazepine for your colonoscopy and you don't remember your colonoscopy.
" If you signed a contract during that time, that would be an invalid contract
because you were drug demented as indexed by the fact that you couldn't form memory."
Defense counsel asked Julien if it was his opinion that the combination of the drugs described in the hypothetical " would induce such a state?" Julien replied that it would.
On cross-examination, the state asked Julien whether in the article he was opining about criminal liability of a person during a blackout. Julien replied that he raised that question in his article:
" [PROSECUTOR]: All right. And in this article you kind of espouse on whether a person can be held criminally liable for their conduct during a blackout state, and also whether a victim or somebody who's claiming to be a victim could be responsible for ...