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State v. Wendt

Court of Appeals of Oregon

October 31, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
LEON ERWIN WENDT, Defendant-Appellant.

          Argued and submitted May 31, 2018

          Linn County Circuit Court 09122393 David E. Delsman, Judge.

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

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

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

         Case Summary: Defendant appeals from a judgment of conviction for manslaughter in the second degree and two counts of assault in the fourth degree. Defendant assigns error to the trial court's determination that a witness, who was a registered nurse, was qualified to give expert opinion testimony that people should not consume alcohol while taking anti seizure medication. Held: The trial court erred. There was insufficient evidence in the record to establish that the witness had the knowledge, skill, experience, training, or education to form a basis for specialized knowledge about whether people may safely consume alcohol when taking an anti seizure medication, and thus, she was not qualified to give expert opinion testimony on that topic.

          [294 Or.App. 622] SHORR, J.

         Defendant appeals from a judgment of conviction for manslaughter in the second degree (Count 1), ORS 163.125, and two counts of assault in the fourth degree (Counts 2 and 3), ORS 163.160.[1] The convictions arose out of a car crash in which the vehicle that defendant was driving collided with another vehicle, killing defendant's passenger and injuring the driver and passenger of the other vehicle. Defendant raises five assignments of error on appeal. We write to address only defendant's fifth assignment of error, that the trial court erred in determining that a nurse who drew defendant's blood at the hospital was qualified to give opinion testimony that people should not consume alcohol while taking antiseizure medication. We conclude that, on the record before us, the witness was not qualified to testify as an expert regarding the effect of combining alcohol and antiseizure medication. We also conclude that the trial court's error was not harmless. Consequently, we reverse and remand on Counts 1, 2, and 3 and otherwise affirm.[2]

         We summarize all the evidence relevant to a trial court's admission of testimony under OEC 702. State v. Brown, 294 Or.App. 61, 62, ___ P.3d ___ (2018). The state presented evidence that defendant and his roommate, Spinney, drove from their home in Alsea, Oregon, to see a friend's band play at a bar in Lebanon, Oregon. Defendant admitted to consuming at least three alcoholic drinks over the course of the evening.[3] After the band finished playing, around 1:30 a.m., defendant and Spinney left the bar, intending to drive back to Alsea. Defendant was driving and Spinney was in the passenger seat. The weather was windy and rainy after defendant left the bar, and visibility was limited. Defendant ran a stop sign while travelling at a speed of [294 Or.App. 623] approximately 45 miles per hour and struck another vehicle. Spinney was killed as a result of the collision, and the two passengers in the other vehicle were injured.

         When police arrived on the scene, defendant was responsive and did not have any major injuries. A detective noticed that defendant was limping and that his eyes were bloodshot. Defendant agreed to accompany the detective to a nearby hospital to give blood and urine samples. At the hospital, a registered nurse, Atchley, checked defendant for injuries and drew his blood at around 3:51 a.m. A phlebotomist drew a second blood sample approximately half an hour later. From these two blood samples, defendant's blood-alcohol content (BAC) was determined to be .059 percent and .052 percent, respectively.

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

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

         Defendant's theory at trial was that he had a seizure at the time of the accident. Defendant suffers from a seizure disorder for which he takes medication twice per day. He testified that he last took his medication on the morning of the accident, before he and Spinney left for Lebanon. Defendant reported that he missed his second dose of medication that evening. One of the responding deputies testified that defendant told him that "bad things" could happen if he misses a dose. Defendant also testified that the seizure medication was his "stupid pill" because it made concentrating and multitasking difficult for him. Defendant testified [294 Or.App. 624] that the prescription sheet for his antiseizure medication instructed him that drinking in moderation was permitted.[4]

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


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