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State v. Rossiter

Court of Appeals of Oregon

November 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
TRAVIS LEE ROSSITER, Defendant-Appellant.

          Argued and Submitted March 16, 2017

          Linn County Circuit Court 13CR06278 Daniel R. Murphy, Judge.

          Andrew D. Coit argued the cause and fled the supplemental briefs for appellant. Also on the opening brief was Cohen & Coit, P.C.

          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, Solictor General. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Wilson, Senior Judge.

         Case Summary:

         In this companion case to State v. Rossiter, 300 Or.App. 44, P.3d (2019), defendant was convicted of manslaughter in the first degree for not seeking medical care for his 12-year-old daughter, who died from untreated ketoacidosis. On appeal, defendant raises eight assignments of error, arguing that the trial court erred by (1) denying defendant's motion to disclose grand jury testimony; (2) permitting the state to introduce evidence that, as part of his religion, he avoided traditional medical care; (3) denying his motions to dismiss or suppress evidence from the state's experts based on an audio recording of the victim's autopsy being destroyed as a standard business practice; (4) denying defendant's motion for judgment of acquittal; (5) imposing the 120-month statutorily mandated sentence that, in defendant's view, is unconstitutionally [300 Or.App. 406] disproportionate under Article I, section 16, of the Oregon Constitution; (6) allowing the state's expert witnesses to opine on the standard of care applicable to a person in defendant's position; (7) instructing the jury that it could return a nonunanimous verdict; and (8) accepting that nonunanimous verdict. Held: The trial court did not err in denying defendant's motions, imposing the statutorily mandated sentence, or instructing the jury on, and accepting, a nonunanimous verdict. Defendant's sixth assignment of error regarding expert testimony was not preserved and does not qualify as "plain" under ORAP 5.45.

         Affirmed.

         [300 Or.App. 407]LAGESEN, J.

         This case is a companion to State v. Rossiter, 300 Or.App. 44, __P.3d__(2019). As we recounted there, defendant and his wife were charged with manslaughter in the first degree for not seeking medical care for their 12-year-old daughter, S, who died from untreated ketoacidosis.[1]Following a joint trial, a jury found them both guilty. In Rossiter, we addressed defendant's wife's appeal of her conviction; this is defendant's appeal of his judgment of conviction for first-degree manslaughter. On appeal, he raises a total of eight assignments of error, three of which were raised in two separate supplemental briefs.

         In all, defendant asserts that the trial court erred in the following respects: (1) by denying defendant's motion to disclose grand jury testimony; (2) by permitting the state, over defendant's OEC 403 and state constitutional objections, to introduce evidence that, as part of his religion, defendant avoided traditional medical care and looked to God to heal the body; (3) by denying defendant's motion to dismiss or, alternatively, defendant's motion to suppress evidence from the state's experts, Dr. Nicol and Dr. Nelson, based on the fact that Nelson, in the course of standard business practices, destroyed the audio recording of his autopsy of the victim; (4) by denying defendant's motion for judgment of acquittal; (5) by imposing the 120-month statutorily mandated sentence that, in defendant's view, is unconstitutionally disproportionate as applied to him, in violation of Article I, section 16, of the Oregon Constitution; (6) by permitting the state's three expert witnesses to opine directly on whether defendant's conduct was either a negligent or gross deviation from the standard of care applicable to a parent or caregiver in defendant's position; (7) by instructing the jury that it could return a nonunanimous verdict; and (8) by accepting a nonunanimous verdict on the charge of first-degree manslaughter. For the reasons that follow, we conclude that none of those contentions warrant reversal and, accordingly, affirm.

         [300 Or.App. 408] The facts underlying defendant's prosecution are set forth in our opinion resolving defendant's wife's appeal. See Rossiter, 300 Or.App. at 46. We therefore do not recount them here and turn directly to the task of resolving defendant's assignments of error.

         Grand jury testimony.

         In his first assignment of error, defendant challenges the trial court's denial of his motion in limine seeking disclosure of "all records of the testimony of witnesses before the Linn County Grand Jury which voted on the indictment in this case." In his memorandum supporting the motion, defendant narrowed his request, explaining that he was "seeking the grand jury testimony of all the witnesses the State intends to introduce at trial regarding the religious belief or practice of the Defendant." On appeal, defendant contends that his "statutory and federal constitutional rights were violated because the defendant presented a sufficient rationale ...


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