State v. Garcia, 512 P.3d 839

Background

Defendant adopted M (his biological niece). M lived with defendant and his partner Horn-Garcia; defendant worked while Horn-Garcia was primary caregiver.
From 2016, M lost weight and became visibly emaciated; photographs, medical notes, and texts showed differential treatment of M and discussions about withholding food.
In December 2016 M became acutely ill; first responders found her emaciated and near death. Autopsy attributed cause of death to emaciation/malnutrition consistent with long-term starvation.
Defendant was charged with murder by abuse, two counts of first-degree manslaughter, and two counts of first-degree criminal mistreatment; the state moved to dismiss the manslaughter counts pretrial.
After a 15-day trial the jury convicted defendant of murder by abuse and first-degree criminal mistreatment; defendant appealed raising five errors.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Pretrial dismissal of two manslaughter counts	Dismissal proper because manslaughter are lesser included offenses of murder by abuse and including them was unnecessary	Dismissal prejudiced defendant (risk of prosecutorial argument, order-of-deliberations impact)	Affirmed — dismissal within court's discretion; lesser offenses remained available to jury and instruction covered them
Expert pediatrician testimony about scapegoat children	Testimony admissible as expert opinion based on experience; foundation adequate	Trial court plainly erred by not sua sponte requiring scientific foundation for scapegoat testimony	No plain error; even if error, court would not exercise discretion to reverse because objection not raised and foundation not obviously insufficient
Emergency room physician testimony	Testimony was non-speculative and proper	Testimony was speculative and prejudicial	Overruled — testimony admissible; no reversible error (court followed co-defendant ruling)
Denial of judgment of acquittal on murder by abuse (extreme indifference)	Evidence (photos, texts, medical findings) sufficient to prove extreme indifference beyond reasonable doubt	Evidence insufficient to show extreme indifference; acquittal should have been granted	Affirmed — viewing evidence in state's favor, a rational jury could find element proven
Jury instruction permitting nonunanimous verdicts on criminal mistreatment	Instruction allowed by court at time	Nonunanimous verdict instruction violated Sixth Amendment	Error acknowledged but harmless because jury returned unanimous guilty verdicts; convictions stand

Key Cases Cited

State v. Stough, 148 Or App 353 (trial court discretion to dismiss charges under ORS 135.755)
State v. Jackson, 252 Or App 74 (indictment of an offense includes lesser included offenses by implication)
State v. Gibbons, 228 Or 238 (including lesser included offenses in indictment is unnecessary verbiage)
State v. Woodson, 315 Or 314 (amending indictment did not change substance where lesser offenses were implied)
State v. Marrington, 335 Or 555 (defining when evidence will be perceived as scientific)
State v. Southard, 347 Or 127 (scientific evidence must show indicia of scientific validity)
State v. Henley, 363 Or 284 (specialized training can indicate behavioral-science grounding for testimony)
State v. Cunningham, 320 Or 47 (standard of review for judgment of acquittal: view evidence in light most favorable to state)
Ramos v. Louisiana, 140 S. Ct. 1390 (Sixth Amendment requires unanimous jury verdicts for serious offenses)
State v. Kincheloe, 367 Or 335 (harmless-error analysis where nonunanimous instruction given)
State v. Turnidge, 359 Or 364 (upholding constitutionality of order-of-deliberations instruction under ORS 136.460)