STATE OF OREGON, Plаintiff-Respondent, v. SACORA HORN-GARCIA, aka Sacora Garcia, aka Sacora Horn, Defendant-Appellant.
Deschutes County Circuit Court 17CR22080; A172863
Court of Appeals of Oregon
Argued and submitted February 22, affirmed June 8, 2022
petition for review denied October 20, 2022 (370 Or 404)
320 Or App 100; 513 P3d 47
Beth M. Bagley, Judge.
Defendant was convicted of murder by abuse and first-degree criminal mistreatment in connection with the starvation death of her five-year-old stepdaughter, M. On appeal, defendant contends that the trial court committed five errors: (1) overruling a speculation objection to certain testimony by the emergency room physician who treated M on the day that she died; (2) denying defendant‘s motion for judgment of acquittal on the murder-by-abuse charge; (3) giving a curative instruction to the jury that murder by abuse is not a crime that is eligible for the death penalty; (4) declining to give defendant‘s requested jury instruction on “extreme indifference to the value of human life,” as relevant to the murder-by-abuse charge; and (5) instructing the jury on nonunanimous guilty verdicts. Held: The trial court did not err in allowing the testimony by the emergency room physician, because the testimony was not speculative and did not imply what defendant claims that it did. The trial court did not err in denying defendant‘s motion for judgment of acquittal, because, viewed in the light most favorable to the state, the evidence was legally sufficient to support a conviction. The trial court did not err in giving a curative instruction on the death penalty, because the instruction was appropriate in light of statements made by defense counsel and jurors during voir dire, the unique nature of the death penalty, and the jury not being death-penalty qualified. The trial court did not err in declining to give defendant‘s “extreme indifference” instruction to the jury, because the instructions given accurately stated the law and adequately covered the points that defendant wanted made. Finally, the trial court erred in instructing the jury that it could find defendant guilty of criminal mistreatment by nonunanimous verdict, but that еrror was harmless because the jury returned unanimous guilty verdicts on those charges.
Affirmed.
Harrison Latto argued the cause and filed the reply brief for appellant. On the opening brief was Daniel J. Casey.
Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and Kistler, Senior Judge.
AOYAGI, J.
Affirmed.
Defendant was convicted of one count of murder by abuse,
I. BACKGROUND
This case shares background facts and arises out of the same circumstances described in State v. Garcia, 320 Or App 123, 512 P3d 839 (2022).
Defendant began dating Garcia in summer 2014. At that time, defendant was living with her three daughters from a prior marriage, and Garcia was living with M, his biological niece who he had adopted as a baby. In September 2014, Garcia and M moved in with defendant and her daughters. Defendant and Garcia married in December 2014. Defendant was a “stay-at-home mom” and M‘s primary caregiver.
The state presented evidence that defendant and Garcia treated M differently from the other children, including withholding food from M as a form of discipline, denying M access to food, and requiring M to ask to be fed. Text messages between defendant and Garcia showed that M‘s eating habits and the withholding of food from her were frequent subjects of discussion. There was evidence that M would try to get food during the night and otherwise, prompting defendant and Garcia to put an alarm on M‘s bedroom door.
M‘s weight, which historically had been normal for her age (and had been on an upward trajectory), began to drop. In February 2016, at aged four, M weighed a pound less than she had 10 months earlier. In March 2016, M saw her pediatrician for a “well child” visit, and she had lost another pound. The pediatrician was concerned that M was losing weight and directed defendant to increase her caloric intake and to bring her back for a follow-up weight check. At her follow-up weight check in May 2016, M weighed 31.97 pounds, a 2.2-pound weight gain since her last visit, which confirmed that the issue was inadequate caloric intake. Defendant was told to continue giving M additional calories.
The state presented evidence that M was visibly emaciated during the summer and fall of 2016, including photographs, and that various people expressed concern about M‘s weight to defendant and Garcia. Although other children in the household were taken to the doctor during that period, M was never taken to the doctor again after May 2016. Meanwhile, defendant and Garcia were experiencing marital problems, and they were also adopting a baby.
According to defendant and Garcia, M had been in good health and behaving normally until approximately December 16, 2016, when M became sick with “flu-like” symptoms. She was vоmiting, shaky, and tired; had a “wet cough“; was not keeping food or water down; and started to look like she had sunken cheeks. Neither defendant nor Garcia sought medical care for M.
On the morning of December 21, defendant and Garcia exchanged text messages while Garcia was at work.
During that exchange, at 8:46 a.m., Garcia asked defendant whether she would “feel scared taking [M] into urgent care,” where “most likely they would just swab her nose to see if she has the flu.” Defendant responded, “I don‘t know.” Garcia responded, “To me urgent care is always less professional like there doctors are always laid back.” Approximately half-hour later, at 9:19 a.m., defendant texted, “Alright, I think she def needs to go in today.” Garcia responded “okay” a few minutes later. At 10:44 a.m., he added, “Might be good to go down there with all the kids to show they are healthy.” At 10:47 a.m., defendant texted Garcia that he needеd to come home and they needed to take her in. She then called him several times, but he did not answer. At 10.53 a.m., defendant texted Garcia that it was an “emergency” and that he needed to answer.
At 10:58 a.m., defendant called 9-1-1. She reported that M was unresponsive, almost unconscious, and possibly not breathing. She further described M as spitting up brown fluid, having stiff hands, and having open but unresponsive eyes.
First responders arrived at 11:05 a.m. They were “shocked” by M‘s appearance, perceived her to be “extremely underweight,” and had never seen a child so underweight.
At the time of her death, M was five years old and weighed 24 pounds, which is the size of a typical two- or three-year old. Given the “emaciated” and “wasted” condition
of M‘s body, and having ruled out all other possible medical explanations, the medical examiner concluded that M‘s cause of death was “emaciation,” by which she meant “malnutrition or starvation.” Among other things, M‘s autopsy revealed that M had minimal to no body fat stores and elevated levels of urea nitrogen, indicating that she had been burning muscle for energy because she was not consuming carbohydrates from food and had no body fat stores. Her internal organs also were “profound[ly]” deteriorated in size, which is something that occurs with long-term starvation, due to elevated levels of the stress hormone cortisol—and which is “absolutely not” consistent with an otherwise healthy individual getting a bad flu, as it takes “months” to occur.
Defendant was charged in connection with M‘s death. The thrust of her defense was that she did not know that M was not getting enough food, perceived her to be naturally thin and not abnormally so, and did not know that she was starving to death. After hearing all of the evidence, the jury found defendant guilty by unanimous verdicts of murder by abuse and two counts of first-degree criminal mistreatment. The court merged the criminal-mistreatment verdicts. Defendant was sentenced to life imprisonment with a 25-year minimum on the murder conviction and a cоncurrent 18-month sentence on the criminal-mistreatment conviction. Defendant appeals, raising five assignments of error.
II. ANALYSIS
A. Dr. Bouska‘s Testimony
As part of the state‘s case-in-chief, the jury heard testimony from Dr. Bouska, the emergency room physician who treated M on December 21, regarding M‘s condition when she arrived at the hospital and the efforts made to try to revive her. Most of Bouska‘s testimony is not at issue. However, on redirect examination, Bouska gave one answer that is the subject of defendant‘s first assignment of error.
At the end of redirect, the prosecutor asked, “If this patient that was on your table December 21st—if she had arrived 12 hours prior to that time, based on what you saw in front of you, is there something you could‘ve done?” The court
overruled a “speculation” objection, which was described as being based on Bouska having “testified he can‘t sort of reverse-engineer a timeline basеd on rigor mortis.” The court overruled the objection and instructed the witness that, if he could answer the question, he could answer. The prosecutor repeated the question as, “If [M] had been brought to the hospital sooner, the night before—is there something that you could have done in the emergency room?” Bouska answered, “To the best of my knowledge and training, I would say that the—she would have likely been alive at that time and we would‘ve been able to evaluate for, if there was something wrong at that time, how to reverse it.”
Defendant contends that the trial court erred in overruling the “speculation” objection. Specifically, she argues that Bouska‘s opinion that M “likely would have been alive” 12 hours earlier was speculative because Bouska admitted that he was unable to pin down M‘s exact time of death, which was the subject of heavy cross-examination. And she argues that the rest of Bouska‘s answer implied that M‘s condition could have been reversed and her life saved if M had only been
Bouska‘s testimony that M “would have likely been alive” on the night of December 20 was not improperly speculative. It was based on his training and experience as an emergency room physician, information received from first responders, and his own observations of M in the emergency room. See
Bouska explained both why he could not opine on an exact time of death and why he believed that M‘s death had occurred within minutes or hours before her arrival at the hospital, not days.3
As for Bouska‘s statement regarding what would have been done if M had been brought into the emergency room while she was still alive, we disagree with defendant that Bouska implied that they would have been able to reverse M‘s condition and save her life if only she had been brought in 12 hours earlier. Bouska had alrеady testified on direct and cross regarding his efforts to revive M when she arrived in the emergency room on December 21, which included “checking for reversible causes,” such as correctable poisoning, trauma, blood loss, or “any possible reversible cause.” No reversible cause was found. In that context, Bouska‘s later statement on redirect—that, if M had been brought in the night before, when she was still alive, they “would‘ve been able to evaluate for, if there was something wrong at that time, how to reverse it“—did little more than indicate that they would have followed the same procedure, i.e., evaluated M for reversible causes. At most, Bouska‘s answer suggested that it would have been better to evaluate M for reversible causes while she was still alive—rather than after she had died—but did not imply that such an evaluation would have been successful in revealing a reversible cause. That is particularly so given Bouska‘s prior testimony that, due to her poor general state of health, M “would not be very resilient[.]”4
The trial court did not err in overruling the objection.
B. Denial of Motion for Judgment of Acquittal (murder by abuse)
At the conclusion of the state‘s case-in-chief, defendant moved for judgment of acquittal on the charge of murder by abuse. As relevant here, a person commits murder by abuse “when a person, recklessly under circumstances manifesting extreme indifference to the value of human life, causes the death of a child under 14 years of age ***, and *** [t]he person causes the death by neglect or maltreatment.”
C. Jury Instruction Regarding No Death Penalty
The remaining three assignments of error pertain to jury instructions.
Murder by abuse is not a crime eligible for the death penalty. However, during the first and third voir dire panels for defendant‘s trial, defense counsel and prospective jurors discussed wrongly convicted defendants and the death penalty in a way that led the state to ask for a curative instruction that this was not a death-penalty case.
During the first voir dire panel—which included eight people who ended up serving on the jury—defense
counsel said, “We hear about like—who‘s heard like the Innocence Project? All these people who have been on death row that they now find out [they‘re] innocent after the fact.” After a prospective juror said “yeah,” defense counsel had a fairly lengthy back-and-forth with the prospective jurors about how “that can happen,” during which defense counsel referred to “a lot of those poor guys that didn‘t have DNA“; listed poor investigation, jumping to conclusions, economics, and racism as how “that can happen“; and asked “[h]ow do we keep that from happening” that “we have all these people sort of coming off of death row, you know, that were—the highest punishment possible, and they found out they‘re innocent,” but “juries convicted them.”
A shorter but similar exchange occurred in the third voir dire panel, which included two people who were chosen as alternates. Defense counsel asked if “innocent people sometimes get convicted.” A prospective juror answered yes. Defense counsel asked how that happens and how to stop it. The prospective juror cited “a number of cases in recent years where people have been exonerated” by new DNA evidence. Defense counsel asked about “all those poor suckers that didn‘t have DNA evidence” and “[d]o you think there are people out there?” The prospective juror answered that “there are probably people who have been wrongly executed.” Defense counsel then asked a different prospective juror how to “stop that from happening.” That prospective juror answered, “Well, we stop the death penalty.” Defense counsel clarified, “Not executed, but just convicted. How do we stop that from happening?” A prospective jury answered, “Be very aware of what true evidence is and make sure there is no doubt whatsoever.”
In proposing jury instructions, the state requested an instruction that murder by abuse is not a crime eligible for the death penalty, so as to cure any misimpression that the jurors might have obtained during voir dire. Defendant opposed the instruction, arguing that it was enough that the jurors would receive the standard instruction not to consider the possible punishment in making their decision,
and asserting that the proposed additional instruction could prejudice her.5
The trial court agreed with the state that a “curative” instruction was appropriate. The court was сoncerned that some jurors might be unable to “render a verdict based on the law and facts” if they were under the misimpression that defendant could be sentenced to death. In the court‘s words, it was concerned about “a juror potentially making a decision based on a misapprehension that the death penalty could be imposed when we
The court decided to give Uniform Criminal Jury Instruction 1005, “Functions of the Court and Jury,” followed by a one-sentence curative instruction:
“It is your duty to weigh the evidence calmly and dispassionately, and to decide this case on its merits. Do not allow bias, sympathy, or prejudice any place in your deliberations. Do not decide this case on guesswork, conjecture, or speculation. Do not consider what sentence might be imposed by the Court if the defendant is found guilty.
”Under Oregon law, the charge of Murder by Abuse is not a crime that is eligible for consideration of the death penalty.”
(Emphasis added.) There was no other mention of this not being a death-penalty case. As agreed by the parties, the
trial court ordered that there be no mention of it, in closing arguments or otherwise, “other than me reading the instruction to the jury tomorrow.”
Defendant contends that it was error to give the curative instruction. Specifically, she argues that it conflicts with a common-law principle, that it denied her a fair trial, and that it violated her due process rights under the Sixth and Fourteenth Amendments to the United States Constitution. In her reply brief on appeal, she adds a new argument that the instruction violated
There is a “general common-law principle” that “a jury should reach its verdict based on the facts of the case and the applicable law without being influenced by the consequences of its verdict.” State v. Amini, 175 Or App 370, 383, 28 P3d 1204, rev den, 333 Or 73 (2001). Consistent with that common-law principle,
We begin with the preserved argument. As defendant acknowledges (while disagreeing with it), under existing precedent, informing the jury of the consequences of a particular verdict does not in and of itself violate a defendant‘s due process rights under the Sixth and Fourteenth Amendments or deprive the defendant of a fair trial. Amini, 175 Or App at 373-75, 383-86 (where the defendant was charged with aggravated murder and raised the defense of mental disease or defect constituting insanity, it did not violate his federal due process rights that the jury was instructed at length, as provided in
particular information provided to the jury deprived the defendant of a fair trial in the particular case.6
Here, the trial court reasonably was concerned that the jurors might misapprehend that defendant could be sentenced
Perhaps it would have been better if the issue had been addressed during voir dire, as defendant suggests. It was not, however,7 and we disagree with defendant that that was the only time that it could be addressed. If the jurors had been told during voir dire that this was not a death-penalty case, the connection between that information and the voir dire content would have been more obvious, but the
information would have been the same.8 And that information was reasonably necessary to cure a misimpression that voir dire may have created. Given the nature of the death penalty and the lack of a death-penalty qualified jury, there was a legitimate risk that at least one juror might vote to acquit, despite being convinced of guilt beyond a reasonable doubt, to avoid defendant gеtting the death penalty. By contrast, it is highly implausible that any juror would vote to convict defendant of murdering a child, despite not being convinced beyond a reasonable doubt of her guilt, just because the death penalty was not available. In the trial court‘s words, given the circumstances and the instructed burden of proof, “advising [the jurors] in one sentence that the death penalty is not an issue in this case does not diminish that, minimize that, or run the risk of anything other than letting the jury know they can decide this case based on the law and the facts as they determine them to be.”
By giving the instruction, the court cured the risk of an unjust and improper acquittal, without creating the risk of an unjust and improper conviction. That distinguishes this situation from the one in State v. Wall, 78 Or App 81, 715 P2d 96, rev den, 301 Or 241 (1986), a case on which defendant relies. In Wall, the defendant did not dispute that he had killed the victim; his defense was that he was not guilty by reason of mental disease or defect. 78 Or App at 83. During cross-examination of a psychiatrist, the рrosecutor elicited testimony to the effect that a motive exists for people to want to be found not guilty by reason of mental disease or defect, because they can be confined by the state only for so long as they have an “active mental illness” and then must be released. Id. at 83-84. The jury subsequently found the defendant guilty. Id. at 85.
On appeal, the defendant in Wall argued that the testimony was improper and “could have influenced the jury to find him guilty in order to avoid his early release back
In this case, the court was trying to prevent the jury from relying on an improper consideration regarding the consequences of its verdict and avert the risk of a juror voting based on emotion rather than the evidence. The court recognized that, even with a general instruction not to consider sentencing, jurors who were not death-penalty qualified might be unable to avoid thinking about the death penalty and allow it to affect their decision. Under the circumstances, the way to cure that was to simply advise the jury that the death penalty was not at issue, to get it off their minds, while also clearly instructing the jury not to consider what sentence might be imposed if defendant was found guilty. Defendant was not prejudiced by the brief instruction that was given in the manner that it was given.
As for
as error in the opening brief“); Federal National Mortgage Association v. Goodrich, 275 Or App 77, 86, 364 P3d 696 (2015) (we normally will not consider an issue raised for the first time in a reply brief). Arguing that the instruction violated
In sum, the instruction that was given was reasonably necessary to cure a potential misimpression from voir dire that could have improperly affected the verdict, and giving it did not deprive defendant of a fair trial. The jury was clearly instructed that it should not consider the sentence that might be imposed if defendant was convicted. To effectuate that instruction in these particular circumstances, it was necessary to remove from the jurors’ mind the one sentence that had been discussed in voir dire—the death penalty—which was a sentence that could not be imposed and which is a sentence that is recognized as unique in our judicial system, in that jurors in a death-penalty case are not assumed to be able to follow the instruction not to consider sentencing in deсiding guilt, unless they have been specifically “death-penalty qualified.” Although giving such an instruction should be an exceedingly rare event, the trial court did not err in giving the instruction that it did under the circumstances that it did.
D. Jury Instruction Regarding “Extreme Indifference”
To find defendant guilty of murder by abuse, the jury had to find that she recklessly under circumstances manifesting extreme indifference to the value of human life caused M‘s death by neglect or maltreatment.
“When a crime refers to the phrase, ‘recklessly under circumstances manifesting extreme indifference to the value of human life,’ you must first determine that the defendant acted recklessly as defined in that jury instruction. “Recklessness alone, however, does not establish extreme indifference to the value of human life. Rather, a person acts with an extreme indiffеrence to the value of human life when, under the circumstances, the person‘s conduct demonstrates an extraordinary lack of concern that his or her actions might cause a death of a human being. When making this determination, you must consider defendant‘s conduct in light of all the circumstances. You may find the defendant acted with extreme indifference to the value of human life only if the defendant‘s conduct revealed a great lack of concern for the risk of death to another.”
(Emphasis added.)
Defendant had proposed an instruction that was virtually identical, except that, in lieu of the italicized sentences above, she requested:
“When making this determination you must consider defendant‘s conduct before, during, and after [M]‘s death and in light of all of the circumstances. A person can commit a gross error in judgment without being indifferent to the consequences of that error.”
(Emphases added.)
The court declined to give defendant‘s proposed instruction. It considеred the “error in judgment” sentence to be repetitive of other instructions, as well as potentially misleading insofar as it might suggest that gross errors in judgment can never demonstrate extreme indifference “when, in fact, they can under certain circumstances.” As for the “before, during, and after” language, the court viewed it as not “particularly helpful or instructive to the jury.” The court agreed that the jury could consider evidence of defendant‘s conduct before, during, and after M‘s death—such as her conduct at the hospital—but felt that that was already covered by the “in light of all the circumstances” instruction.9 In the court‘s words, “[I]t‘s a long period of time. So
what is before? What is during? What is after? And how is that more instructive than in light of all the circumstances, in light of it all?” The court also appeared to agree with the state that the jury should not be instructed that it must consider defendant‘s conduct before, during, and after M‘s death, as it was for the jury to decide what it сonsidered relevant.10
Defendant claims error. She argues that she was entitled to her proposed instruction because it correctly stated the law, was supported by evidence, and supported her theory of the case. We review the denial of a jury-instruction request for legal error. State v. Labossiere, 307 Or App 560, 565, 477 P3d 1 (2020).
Generally, a defendant is entitled to a requested jury instruction “if the instruction correctly states the law and is supported by sufficient evidence in the record.” State v. Moreno, 287 Or App 205, 209, 402 P3d 767 (2017). However, “[a] trial court does not err in refusing to give a requested instruction ‘if the substance of the requested jury instruction, even if correct, was covered fully by other jury instructions given by the trial court.‘” State v. Harrison, 292 Or App 232, 240, 423 P3d 736 (2018), aff‘d, 365 Or 584, 450 P3d 499 (2019) (quoting Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998)). Trial courts also should avoid giving instructions that are “reasonably capable of confusing or misleading the jury.” State v. Roberts, 293 Or App 340, 346, 427 P3d 1130 (2018) (internal quotation marks omitted). Ultimately, we will reverse a conviction based on the refusal to give a requested jury instruction only if the instructions given “probably created an erroneous impression of the law in the minds of the [jurors] which affected
the outcome of the case.” State v. Thompson, 328 Or 248, 266, 971 P2d 879, cert den, 527 US 1042 (1999) (internal quotation marks omitted); see also State v. Egeland, 260 Or App 741, 746, 320 P3d 657 (2014) (reiterating same).
Because defendant‘s requested instruction language derives from State v. Downing, 276 Or App 68, 366 P3d 1171 (2016), we begin there. In Downing, the trial court gave a jury instruction on the meaning of “extreme indifference to the value of human life” that included the statement, “Conduct manifesting extreme indifference to the value of human life displays indifference or a lack of concern for social or legal responsibility.” Id. at 87. The defendant excepted to that part of the instruction, arguing that it misstated the law, as the jury was required to “specifically assess her level of concern for the value of human life, not her concern for a broader category of legal and social responsibilities.” Id. at 79. On appeal, she similarly argued that the instruction wrongly “told the jury that it could find the element based on the mere failure to meet social and legal responsibilities,” “failed to convey that the failure to meet those responsibilities must be extreme and related to the value of human life,” and allowed the jury to convict her on serious charges upon a lesser culpability finding than was actually required. Id. at 87.
We agreed that the instruction given in Downing misstated the law in a way that could have affected the outcome and therefore reversed the defendant‘s conviction. Id. at 88-89. We first noted that the court never explained to the jury “that extreme indifference to the value of human life describes a state of mind about whether a person cares that the person‘s conduct might cause the death of another human being,” nor did it explain the relationship between recklessness and extreme indifference to the value of human life. Id. at 88. In that context, the “social and legal responsibilities” instruction could have misled the jury to believe “that extreme indifferencе to the value of human life is less blameworthy than plain recklessness.” Id. at 88-89 (emphasis in original). That is because conduct that is “a gross deviation from the standard of care that a reasonable person would observe in the situation“—i.e., reckless—“may
be worse than conduct that merely shows ‘a lack of concern for social and legal responsibility.‘” Id. at 89. The instruction improperly “blur[red] the distinction” between recklessness and extreme indifference. Id. Further, as to extreme indifference, the jury was supposed “to evaluate whether defendant‘s actions before, during, and after the crimes revealed a great lack of concern, not just for any social or legal responsibility, but for the specific responsibility to adjust one‘s actions to avoid the risk of death of another.” Id. (emphases added). “The erroneous instruction allowed the jury to convict defendant based on her disregard of a different duty.” Id.
Correctly understood, “[e]xtreme indifference to the value of human life is a state of mind that is both more blameworthy than plain recklessness and that specifically relates to whether one cаres about the death of another human being.” Id. at 88. Because extreme indifference is more blameworthy than plain recklessness, a person can “commit a gross error in judgment“—i.e., act recklessly—“without being indifferent to the consequences of that error.” Id. at 89. Ultimately, the instruction in Downing was erroneous and prejudicial because it could have led the jury to find the defendant guilty based only on a finding of plain recklessness or dereliction of the wrong duty.
Returning to the present case, the trial court did not err in refusing to give defendant‘s requested instruction. With respect to the “before, during, and after [M‘s] death” language, we agree with the court
whether they state the law accurately.” (Internal quotation marks omitted.)).
Instructing the jury to consider defendant‘s conduct “in light of all the circumstances“—without adding “before, during, and after [M]‘s death“—did not create “an erroneous impression of the law in the minds of the jurors.” Egeland, 260 Or App at 746. Defendant argues that her requested language would have served to “emphasize and clarify” that “all” circumstances included those after M‘s death, but we disagree that the court was required to emphasize or clarify that point. See Harrison, 292 Or App at 241 (concluding that trial court did not err, where it gave a legаlly correct instruction, in declining to give an instruction that the defendant felt would have “clarified” a point).
The court also did not err in declining to instruct the jury that “[a] person can commit a gross error in judgment without being indifferent to the consequences of that error.” The jury was instructed that recklessness alone was not enough to establish extreme indifference to the value of human life; that a person‘s conduct must demonstrate an “extraordinary lack of concern that his or her actions might cause a death of a human being” to constitute extreme indifference; and that extreme indifference could be found only if defendant‘s conduct “revealed a great lack of concern for the risk of death to another.” Unlike in Downing, the jury was properly instructed on the difference between recklessness and extreme indifference and the need for both to find defendant guilty.
The trial court is “not required to give a specifically requested instruction where it chooses to present different instructions that adequately cover the same subject.” State v. McWilliams, 29 Or App 101, 106, 562 P2d 577, rev den, 279 Or 1 (1977). That is true even when, as here, the requested instruction quotes a precedential appellate opinion. As we have pointed out previously, the way that appellate opinions are written is not necessarily conducive to easy cutting and pasting of individual lines into jury instructions, and not “every quote from every opinion should become a required jury instruction.” State v. Nefstad, 309 Or 523, 551, 789 P2d 1326 (1990); see also Torres v. Persson, 305 Or App 466, 477-78, 471 P3d 119 (2020) (discussing same). The point that we were making in Downing, 276 Or App at 88-89—that recklessness and extreme indifference do not always occur together—was well conveyed by the court‘s instructions and did not have to be conveyed in the exact words that we used in one sentence of Downing. See Harrison, 292 Or App at 241 (“The court was not required to give an instruction that was merely an enlargement on another correct and complete instruсtion already given.“).11
In sum, the trial court did not err in declining to give defendant‘s requested instruction on extreme indifference to the value of human life.
E. Jury Instruction Regarding Nonunanimous Verdicts
The trial court correctly instructed the jury that it could find defendant guilty of murder by abuse only by unanimous verdict.
Defendant is correct that it was error to give the instruction. See Ramos v. Louisiana, 590 US 83, 140 S Ct 1390, 206 L Ed 2d 583 (2020) (holding that, under the Sixth Amendment, a criminal defendant may be convicted of a serious offense only by unanimous verdict). However, because the jury returned unanimous guilty verdicts on the criminal mistreatment charges, the error was harmless.12 State v. Kincheloe, 367 Or 335, 338-39, 478 P3d 507 (2020), cert den, ___ US ___, 141 S Ct 2837 (2021). We reject defendant‘s final assignment of error.
III. CONCLUSION
Having rejected each of defendant‘s assignments of error for the reasons described, we affirm the judgment of conviction.
Affirmed.