454 P.3d 1
Or. Ct. App.2019Background
- Travis Lee Rossiter and his wife were tried jointly and convicted of first‑degree manslaughter for failing to obtain medical care for their 12‑year‑old daughter S, who died of untreated diabetic ketoacidosis.
- Defendant raised eight assignments of error on appeal, including challenges to pretrial grand jury disclosure, admission of evidence about his religious beliefs, destruction of an autopsy audio recording, sufficiency of the evidence, imposition of the statutory 120‑month sentence, expert testimony about the standard of care/mental state, and the instruction and acceptance of a nonunanimous jury verdict.
- The trial court found the autopsy audio had been destroyed as part of standard operating practice; defendant did not dispute that factual finding.
- Several legal challenges turned on preservation: the objection to expert testimony was not preserved and thus not subject to plain‑error relief under ORAP 5.45.
- The Court of Appeals affirmed the conviction on all assignments of error; Judge Ortega concurred in part and dissented only as to the expert‑testimony issue (would have found plain error).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Grand jury transcript disclosure | State: ORS 135.855 bars pretrial disclosure; no statutory basis to compel disclosure | Rossiter: needed transcripts of grand jury testimony about his religious beliefs for impeachment and Brady material | Denied—statute bars pretrial disclosure; defendant failed to make the threshold showing for in camera Brady review (Covington/Zinsli standard) |
| Admission of religious‑belief evidence | State: evidence of beliefs is relevant to motive and admissible under neutral evidentiary rules | Rossiter: admission was unfairly prejudicial under OEC 403 and violated Article I §§2,3 (free exercise) | Admissible—Brumwell controls; motive evidence of religious belief is permitted and not a religion‑clause violation |
| Destruction of autopsy audio recording | State: destruction was standard practice; no bad faith; other evidence available | Rossiter: destroyed tape likely contained favorable, non‑speculative material; dismissal or suppression warranted under Zinsli | Denied—defendant offered only speculation; Zinsli requires non‑speculative showing of missing favorable evidence |
| Motion for judgment of acquittal (mental state) | State: evidence supported recklessness (1st deg) and criminal negligence (2nd deg) | Rossiter: insufficient evidence to prove required culpable mental states | Denied—viewing evidence in state’s favor a rational trier of fact could find required mental states |
| Proportionality of 120‑month sentence | State: statutory sentence valid as applied | Rossiter: 120 months is unconstitutionally disproportionate under Or. Const. art. I, §16 | Denied—court rejected proportionality challenge for same reasons as companion Rossiter opinion |
| Expert testimony opining on defendant’s standard of care/culpable mental state | State: experts could testify to relevant forensic opinions | Rossiter: experts improperly opined on whether his conduct met legal standard (negligence/gross negligence) | Not reviewed on merits—claim unpreserved and does not satisfy plain‑error criteria under ORAP 5.45 (Ortega would dissent) |
| Jury instruction permitting nonunanimous verdict | State: Oregon law permitted the instruction at the time | Rossiter: Sixth and Fourteenth Amendment require unanimity | Denied—federal unanimity challenge rejected on the merits (court follows precedent) |
| Acceptance of nonunanimous verdict | State: verdict valid under existing state rules | Rossiter: receiving a nonunanimous verdict violated constitutional rights | Denied—court upheld the nonunanimous verdict |
Key Cases Cited
- State v. Brumwell, 350 Or. 93, 249 P.3d 965 (2011) (evidence of religious belief relevant to motive is admissible and does not violate Article I §§2–3 when motive evidence is otherwise admissible)
- State v. Zinsli, 156 Or. App. 245, 966 P.2d 1200 (1998) (remedy for destroyed evidence requires non‑speculative showing that destroyed material was favorable and unavailable)
- State v. Covington, 291 Or. App. 514, 422 P.3d 276 (2018) (threshold showing required to trigger in camera review of grand jury records for Brady material)
- State v. Rossiter, 300 Or. App. 44, 453 P.3d 562 (2019) (companion opinion addressing related evidentiary and sentencing issues)
- State v. Miller, 289 Or. App. 353, 413 P.3d 999 (2017) (standard of review for denial of judgment of acquittal)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s duty to disclose materially exculpatory evidence)
- State v. Gerig, 297 Or. App. 884, 444 P.3d 1145 (2019) (rejecting federal constitutional unanimity claims)