State v. Sells, 524 P.3d 517

Defendant Amber Sells shot and killed the victim while high on methamphetamine and was charged with second‑degree murder with a firearm (ORS 163.115; ORS 161.610).
Defense theory at the bench trial: voluntary intoxication and mental‑health history could negate the specific intent required for murder and support a lesser conviction (manslaughter).
Defense retained an expert and sought to admit lay testimony concerning intoxication and odd behavior; the state moved to exclude some lay testimony and presented its own psychiatric evaluation.
The state argued repeatedly that voluntary intoxication (including meth‑induced psychosis) is not a defense to murder; the prosecutor urged the court not to accept intoxication as an excuse for intentional killing.
The trial court made several statements during pretrial and trial proceedings suggesting intoxication “is not a defense,” but in its speaking verdict expressly noted possible psychosis from drug use, relied on the state’s psychiatrist that Sells was able to form intent, and found Sells intentionally committed murder.
On appeal Sells argued the trial court misapplied ORS 161.125(1) by refusing to consider voluntary intoxication as relevant to mens rea; the state argued the claim was not preserved and asked the court to review only for plain error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation: Was the voluntary‑intoxication argument preserved for appeal?	State: Defense needed to object to the speaking verdict; issue not preserved.	Sells: Issue was repeatedly raised, argued by defense, addressed by prosecution, and discussed in the court’s verdict; thus preserved.	Preserved. Defense raised the issue throughout trial, the state responded, and the court ruled on it—satisfying preservation purposes.
Merits: Did the trial court misapply ORS 161.125(1) by treating voluntary intoxication as unavailable to negate intent?	State: Voluntary intoxication is not a defense to avoid responsibility for an intentional killing; evidence of intoxication does not excuse murder.	Sells: The court conflated “not a defense” with the statutory rule allowing intoxication evidence to negate an element (mens rea), thereby improperly refusing to consider intoxication’s impact on intent.	No legal error. Although the court at times used imprecise language, the speaking verdict shows the court considered intoxication and psychiatric evidence and found Sells formed the required intent.

State v. Clemente‑Perez, 357 Or 745 (2015) (discusses preservation rule and its purposes)
State v. Amaya, 336 Or 616 (2001) (warns against overly granular preservation requirements)
State v. K. J. B., 362 Or 777 (2019) (preservation requirements vary with circumstances)
State v. Haynes, 352 Or 321 (2012) (single reference may preserve if it conveys essential contours)
State v. Sorrow, 312 Or App 40 (2021) (issue preserved where raised, responded to, and ruled on in bench trial)
State v. Nicholson, 282 Or App 51 (2016) (objection not required where issue was raised in closing, engaged by prosecutor, and court adopted state’s position)
State v. Satterfield, 274 Or App 756 (2015) (consistent trial‑level argument and directing court to correct rule can preserve issue)
State v. Colby, 295 Or App 246 (2018) (in bench trials, submitting jury instructions can preserve legal issues for review)
State v. Ehly, 317 Or 66 (1993) (standard of review for legal error when facts are undisputed)
Davis v. O’Brien, 320 Or 729 (1995) (party should not be surprised or denied opportunity to respond for preservation to be adequate)