text:
    STATE of Oregon, Plaintiff-Respondent, v. Jeremiah Scott PARTAIN, Defendant-Appellant.
    A166137
    Court of Appeals of Oregon.
    Argued and submitted March 18, 2019. May 30, 2019
    Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Philip Thoennes, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.
    Before Powers, Presiding Judge, and Armstrong, Judge, and Kistler, Senior Judge.
   KISTLER, S. J.

Defendant appeals from a second-degree theft conviction for stealing merchandise from a Walmart store. On appeal, he assigns error to the trial court's ruling preventing him from vouching for his own testimony. The state concedes that the trial court erred in excluding that testimony, and the question on appeal reduces to whether the error was harmless. For the reasons explained below, we conclude that it was. We accordingly affirm the trial court's judgment.

Three witnesses testified at trial: a Walmart employee who reviewed surveillance videos taken while defendant was in the store, a police officer who interviewed defendant after the employee reported the theft to the police, and defendant. We summarize each person's testimony below, as well as the exhibits offered at trial.

Medlinsky works as a loss prevention officer at the Grants Pass Walmart store. While working there, she received a note that "somebody had run out of the building with a full backpack." She reviewed surveillance tapes for the time that the suspect was in the store. Those tapes showed that the suspect entered the store around 8:30 p.m. on May 10 and left hurriedly at approximately 12:30 a.m. on May 11. During those four hours, he walked around the store, selected items from the shelves, and placed some of them in a shopping cart. Among the items were a backpack-which a store employee had removed from a locked rack and left at a register-an air mattress, and a tent. On the tapes, Medlinsky could see the suspect taking the air mattress, backpack, and tent out of the store. She also noticed that the backpack was full as the suspect left and assumed that it contained smaller items that he had put in the shopping cart as he walked around the store. Video from a camera outside the store showed the person running along the side of the store toward a fence.

Medlinsky reviewed the sales records for the time that the suspect was in the store to see if she could find any record of a sale for the three larger items (the air mattress, backpack, and tent) that she could see him take out of the store. However, the sales records did not show that anyone had purchased those items during the time that the suspect was in the store. She put together a loss prevention report and also some surveillance video and still photos from the video, which she provided to the police. On seeing those materials, Officer Kopp identified defendant as the person pictured in the video and the stills. Kopp also discovered that defendant was in custody and spoke with him at the Josephine County jail on May 29.

In speaking with Kopp, defendant confirmed that he was the person in the video but denied stealing any of the items. He explained to Kopp that he had purchased those items and had receipts for all of them. Kopp told defendant that the video showed him purchasing a couple of items from the electronics department but said that it did not show him purchasing the other items, such as the tent that he took out of the store. When defendant insisted that he had receipts for all the items, Kopp told him, "Well, if you have receipts for them, you're going to want to present them once we go to court, all right?" Defendant noted that he could not get the receipts while he was in custody, and Kopp responded, "Well, hopefully when you get out of here, before your next court appearance (indiscernible), you'll be able to show the receipts."

The final person to testify was defendant. Defendant testified that his boss had dropped him off at the Walmart store after work and that he had been killing time waiting for his ride to come pick him up. He testified that he bought various items from Walmart separately, some at the self-checkout counters and others from cashiers at registers, as he waited for his ride over the four-hour period. He confirmed Medlinsky's conclusion that he had put some of the smaller items that initially were in the shopping cart into the backpack before he left the store. He also agreed that he had rushed out of the store with the air mattress, backpack, and tent. He explained that he had received a text around 12:30 a.m. indicating that his ride was waiting for him outside and that he rushed out of the store so that his ride would not leave him. Defendant also testified that he had kept the sales receipts for the items he took out of the store and that the receipts were in the bags with the items. He testified that the "following day I got arrested [for some other reason] at 5:00 in the morning, and so I hadn't really had a chance to-to unpack that stuff and throw away the receipts. I actually still have them * * *."

Defendant also testified that, as he was "rushing out of the store," he heard "somebody behind [him] saying, 'He's stealing,' but [he] didn't think she was talking [about him]." He explained that he "passed numerous-numerous employees. * * * They didn't bother to stop me, so I honestly didn't think that she was talking to me, you know, or was-or was accusing me of it."

On cross-examination, defendant essentially confirmed his earlier testimony, and he agreed that he had asked Kopp, "Is there any way that I won't be charged with this?" Defendant then began explaining that he had been concerned that the charge might affect an existing "downward dispositional [departure]." Despite the prosecutor's suggestion that defendant's existing downward dispositional departure was "a little bit off topic," defendant continued to explain that his downward dispositional departure had been "the basis for most of [his] decisions * * * since [he] got on probation last March."

On redirect, defense counsel asked defendant if he had been arrested for things in the past and was on probation at that point, to which defendant replied, "Oh, yes."

Defendant noted that "there was a time where when I was on probation every single time I got ID-ed by an officer." The following exchange then took place:

"[DEFENSE COUNSEL]: As a result of that, an implication can be made by the State that you would therefore lie. Is that the case here?
"[STATE]: Objection, Your Honor. He can't comment on his own-
"[DEFENDANT]: Thank you.
"[STATE]: -truthfulness.
"[DEFENDANT]: Thank you. I wasn't quite sure -
"THE COURT: Sustained.
"[DEFENDANT]: Okay. I wasn't-
"THE COURT: Why don't you just wait for the next question?
"[DEFENDANT]: Okay.
"[DEFENSE COUNSEL]: I have nothing further."

Given that evidence, the trial court found defendant guilty of second-degree theft.

As noted, on appeal, defendant has assigned error to the trial court's ruling preventing him from responding to his counsel's observation that, because his probation could be revoked, "an implication can be made by the State that [defendant] would therefore lie." The state, for its part, concedes that, in light of our decision in State v. Sanchez-Jacobo , 250 Or. App. 621, 631-32, 282 P.3d 880 (2012), rev. den. , 353 Or. 280, 298 P.3d 30 (2013), the trial court erred. That is, the state does not dispute that the prohibition against vouching does not extend to a witness's commenting on his or her own credibility. We accept the state's concession and turn to the only question remaining on appeal-whether, in the context of this case, the ruling was harmless. More specifically, the question is whether any error in foreclosing defendant from vouching for his own credibility was harmless because, in the context of this case, it had little likelihood of affecting the trial court's verdict. See State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003).

In considering that issue, we note, as an initial matter, that defendant did not make an offer of proof when the trial court sustained the state's objection. Because the substance of what defendant would have said can be inferred from his counsel's question, no express offer of proof was necessary to preserve the error for appeal. See State v. Wirfs , 250 Or. App. 269, 274, 281 P.3d 616, rev. den. , 352 Or. 378, 290 P.3d 814 (2012). However, one function of an offer of proof is to permit an appellate court to determine whether erroneously excluded evidence was likely to have affected the verdict. See State v. Affeld , 307 Or. 125, 128, 764 P.2d 220 (1988). Without some explanation at trial as to what defendant would have said if he had been permitted to answer the question, defendant is left to argue on appeal that the implication in his counsel's question-he would have asserted that he was not lying-was harmful.

On appeal, defendant argues that, because his credibility was the central issue at trial, preventing him from asserting, "I'm not lying," at the end of his testimony likely affected the verdict. The state counters that the excluded testimony was of minimal significance because an assertion that defendant was not lying did not add anything of significance to his oath to tell the truth, especially in light of the trial court's ability to make an independent assessment of defendant's credibility when he testified at trial. The specific issue here, then, is whether there was little likelihood that if defendant had been permitted to affirm the veracity of his story, the court would have been more likely to believe his testimony, as opposed to the testimony and evidence provided by the state.

Evidentiary error is not presumed to be prejudicial, OEC 103(1), and we will affirm despite an evidentiary error if there is "little likelihood that the particular error affected the verdict." Davis , 336 Or. at 32, 77 P.3d 1111. That " 'harmless error' inquiry is informed by a variety of considerations, including 'the nature of the error' and the 'context' of the error." State v. Abbott , 274 Or. App. 778, 789, 362 P.3d 1171 (2015), rev. den. , 358 Or. 794, 370 P.3d 502 (2016) (quoting Davis , 336 Or. at 32-33, 77 P.3d 1111 ).

Both those considerations lead us to conclude that, in the circumstances of this case, the error was harmless.

We consider first the nature of the error that occurred below. State v. Maiden , 222 Or. App. 9, 13, 191 P.3d 803 (2008), rev. den. , 345 Or. 618, 201 P.3d 909 (2009). That consideration involves the assessment of any differences between the quality of the evidentiary error and other evidence admitted on the same issue. Id. ; see Davis , 336 Or. at 33-34, 77 P.3d 1111 (focusing on whether the finder of fact would have regarded the evidence as duplicative, cumulative, or unhelpful in its deliberations). Here, although it is conceded that the trial court erred in not allowing defendant to testify about his own credibility, the content of the excluded statement does not differ meaningfully from the assertion implied by the oath that defendant took before testifying.

As required by OEC 603(1), defendant swore that he would "testify truthfully" when he took the witness stand. To be sure, the oath that defendant swore when he took the stand and the assertion that he would have made at the end of his testimony are not identical. See State v. Evans , 98 Or. 214, 225, 192 P. 1062 (1920) ("[C]umulative evidence is additional evidence of the same character to the same point ." (Internal quotation marks omitted; emphases added.)). The oath is a promise, made under penalty of perjury, that a witness "will testify truthfully." OEC 603 (emphasis added).

It follows that every statement a witness makes under oath carries with it an implied assertion that the statement is truthful. The excluded testimony that defendant would have offered was that he had not lied during his testimony. Although the two statements are not precisely the same, any difference is marginal. The statement that defendant would have offered at the end of his testimony (I have not lied) would not have added any appreciable information to his earlier sworn promise that every statement he was going to make would be true.

To be sure, if defendant had made a specific offer of proof when the trial court sustained the state's objection, then we would be able to test whether a more complete explanation would have made a difference. Without a specific offer of proof, however, defendant is left with a pale denial that he was not lying, which does not differ in any meaningful way from the promise to testify truthfully that he made when he took the oath.

Moreover, to the extent that defendant sought to testify that he was not lying because his probation might be revoked, we note that the state never raised defendant's probationary status when it questioned him. Rather, defendant interjected that issue in response to an unrelated question. When he did so, the state sought to change the subject, noting that "that's a little bit off topic." Consistently, the state neither mentioned nor alluded to defendant's probationary status or to any possible effect that his status might have on his credibility either in questioning defendant or in its closing argument or rebuttal. Cf. State v. Henley , 363 Or. 284, 308-09, 422 P.3d 217 (2018) (focusing on, among other things, on the prosecutor's use of improperly admitted testimony during closing to conclude that the evidence likely affected the verdict). Rather, the state focused on the evidence from the surveillance videos, Medlinsky's testimony that the store had no record of any sale of the items (the air mattress, backpack, and tent) that the videos showed defendant taking out of the store, and the absence of any sales receipts that defendant testified he still possessed.

We also consider the context in which the error occurred.

State v. James , 279 Or. App. 612, 631, 379 P.3d 626 (2016), rev. den. , 361 Or. 486, 395 P.3d 872 (2017). In this case, video evidence showed, and defendant admitted, that he left the store hurriedly with a backpack full of items from the Walmart shelves, an air mattress, and a tent. The video does not show him paying for all the items and, more importantly, Medlinsky testified that there was no record that anyone had paid for an air mattress, a backpack, or a tent during the time that defendant was in the store. On this record, we conclude that there is little likelihood that the trial court's assessment of defendant's credibility would have changed with the admission of the excluded testimony. We accordingly conclude that the error was harmless and affirm the trial court's judgment.

Affirmed.

      The question whether a ruling was harmless requires us to review all the pertinent portions of the record, State v. Sierra-Depina , 230 Or. App. 86, 88, 213 P.3d 863, rev. den. , 347 Or. 290, 219 P.3d 592 (2009), and we set out the facts consistently with that standard.

      Medlinsky reviewed the sales records for the two days that the suspect was in the store, May 10 and 11. The only record of a sale for any of the items that she could find was an air mattress sold at 4:57 p.m. on May 11, more than 16 hours after the suspect had left the store. Medlinsky estimated the items stolen and prepared a mock receipt for those items, which stated $ 152.14 as the approximate value of the merchandise.

      The video, which was received as an exhibit at trial, does not cover the entire period of defendant's four-hour visit. It only includes those parts that Medlinsky concluded were pertinent.

      At that point in the trial, the prosecutor had asked defendant on cross-examination to identify Exhibit 5, which defendant described as a judgment. The prosecutor, however, did not question defendant further about Exhibit 5, nor did she offer it into evidence until after defendant had finished testifying. After defendant had finished testifying, the prosecutor offered and the trial court admitted Exhibits 5 through 13, which reflect defendant's prior convictions.

      In his brief, defendant characterizes that he would have testified precisely that way.

      OEC 603 provides:
      "(1) Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the conscience of the witness and impress the mind of the witness with the duty to do so.
      "(2) An oath may be administered as follows: The person who swears holds up one hand while the person administering the oath asks: 'Under penalty of perjury, do you solemnly swear that the evidence you shall give in the issue (or matter) now pending between _______ and _______ shall be the truth, the whole truth and nothing but the truth, so help you God?' If the oath is administered to any other than a witness, the same form and manner may be used. The person swearing must answer in an affirmative manner.
      "(3) An affirmation may be administered as follows: The person who affirms holds up one hand while the person administering the affirmation asks: 'Under penalty of perjury, do you promise that the evidence you shall give in the issue (or matter) now pending between _______ and _______ shall be the truth, the whole truth and nothing but the truth?' If the affirmation is administered to any other than a witness, the same form and manner may be used. The person affirming must answer in an affirmative manner."


source: Caselaw Access Project

author: DeVORE, J.

license: Public Domain

text:
    In the MATTER OF J. J. S., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. J. J. S., Appellant.
    A168621
    Court of Appeals of Oregon.
    Submitted May 6, 2019. June 5, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and
    Julia Glick, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

Appellant seeks reversal of an order of civil commitment. She argues that the trial court erred in denying her motion to dismiss, because she was held for more than five judicial days prior to a hearing. The state attributes the delay to appellant's attorney. Because the delay cannot be explained that way, we reverse.

Appellant's mental health providers placed her under a hospital hold on July 31, 2018, pursuant to ORS 426.232. Four judicial days later, on August 6, 2018, the trial court issued an order setting the civil commitment hearing for the next day, August 7, the fifth judicial day after the hospital hold began. On August 7, appellant's attorney arrived late for a hearing that was scheduled before appellant's hearing. Although the prior hearing was unrelated to appellant's hearing, the attorney's tardiness delayed the prior hearing, leaving no time for appellant's hearing. Appellant's hearing had been set as the last on the docket for the day. On its own motion, the trial court ordered that appellant's hearing would be postponed to the next day, due to the court's inability to conduct the hearing.

At the commitment hearing on August 8, a new attorney represented appellant. Appellant moved to dismiss the case, because the court did not hold the hearing within five judicial days of the hospital hold and because the delay could not be explained by postponement at the request of a party. See ORS 426.095(2)(c) (providing for good cause postponement when requested by the parties). The trial court denied appellant's motion, concluding that the court was "not physically able" to conduct appellant's hearing on the prior day because of her counsel's tardiness to the earlier hearing and restrictions on the court's ability to hold after-hours hearings. After an evidentiary hearing, the court committed appellant for no more than 180 days.

On appeal, appellant assigns error to the trial court's denial of her motion to dismiss, arguing that dismissal was required for failure to conduct a hearing within the five-day period required by ORS 426.232(2). Appellant acknowledges that the statute authorizes the court to postpone a hearing on the motion of a party for "good cause" under ORS 426.095 (2)(c), but she argues that the statute does not authorize the court to postpone the hearing on its own motion. The state responds that the trial court did not commit reversible error, because appellant "invited" any error because her attorney appeared late at the earlier hearing for a different client on August 7, and that, in turn, caused the court to postpone this matter.

We have previously observed that, under ORS 426.232(2), a licensed independent practitioner

"may detain a person for emergency care or treatment for mental illness, provided that the [licensed independent practitioner] immediately notifies certain specified local mental health personnel. However, the person may not be held for longer than five judicial days without a hearing except in certain circumstances. ORS 426.232(2) ; ORS 426.234(4) ; ORS 426.095(2). See State v. A. E. B. , 196 Or. App. 634, 635, 106 P.3d 647 (2004) (so explaining)."

State v. W. B. R. , 282 Or. App. 727, 728, 387 P.3d 482 (2016). Those limited circumstances are provided by ORS 426.095.

That statute "permits a 'good cause' postponement of a commitment hearing past the five-day judicial deadline, [but] that procedure is available only 'when requested' by certain parties, and only 'to allow preparation for the hearing.' " W. B. R. , 282 Or. App. at 728, 387 P.3d 482 (quoting ORS 426.095(2)(c) ). The statute does not, however, authorize the court to postpone the hearing on its own motion. And we have consistently reversed civil commitment orders where appellants were held for longer than five judicial days in violation of ORS 426.232(2) and where none of the limited exceptions provided by the statute applied. See, e.g. , State v. C. J. W. , 289 Or. App. 63, 65, 407 P.3d 979 (2017) ; State v. L. O. W. , 292 Or. App. 376, 382, 424 P.3d 789 (2018) ; State v. B. L. H. , 287 Or. App. 885, 886, 403 P.3d 538 (2017) ; State v. J. N. , 279 Or. App. 607, 608, 377 P.3d 695 (2016) ; State v. P. G. , 225 Or. App. 211, 212, 200 P.3d 614 (2009) ; State v. J. D. , 208 Or. App. 751, 752, 145 P.3d 336 (2006) ; W. B. R. , 282 Or. App. at 729, 387 P.3d 482.

Here, appellant was detained on July 31, 2018, and the commitment hearing was held on the sixth judicial day, August 8, 2018. The court denied appellant's motion to dismiss, concluding that the court was "not physically able" to conduct appellant's hearing on the prior day because of her counsel's tardiness and restrictions on the court's ability to hold after-hours hearings. None of the parties listed in ORS 426.095(2)(c) requested postponement of the hearing, and there was no developed record demonstrating "good cause," as required by ORS 426.095(2)(c). Rather, the court, on its own motion, postponed appellant's hearing, causing appellant to be held longer than five judicial days. Under such circumstances, a court commits reversible error when it denies a motion to dismiss. See, e.g. , W. B. R. , 282 Or. App. at 728, 387 P.3d 482 (reversible error where trial court denied the appellant's motion to dismiss case after trial court postponed hearing because of a "crowded docket" and a limited "number of judges available," resulting in the appellant being held longer than five judicial days).

Nevertheless, the state contends that whatever error the trial court may have committed is not reversible because defendant "invited the error." The state argues that appellant was "actively instrumental in bringing about" the alleged error, because her trial counsel's tardiness for the prior hearing on a matter for a different client rendered the court "physically incapable of conducting" appellant's hearing as scheduled.

Under the "invited error doctrine," this court will not reverse the trial court's error if the party seeking reversal is "actively instrumental in bringing about" the alleged error. State v. Saunders , 294 Or. App. 102, 105, 429 P.3d 1049 (2018), rev. den. , 364 Or. 294, 434 P.3d 961 (2019) (internal quotation marks omitted). "The rule applies when a party has invited the trial court to rule in a certain way under circumstances suggesting that the party will be bound by the ruling or at least will not later seek a reversal on the basis of that ruling." Id . (citing State v. Ferguson , 201 Or. App. 261, 270, 119 P.3d 794 (2005), rev. den. , 340 Or. 34, 129 P.3d 183 (2006) ) (emphasis added). Although the primary purpose of the rule is to ensure that a party does not "blame the court" for an intentional or strategic choice that later proves unwise, a party can invite error also " 'where counsel's failure to object was inadvertent or unintentional.' " Id. at 105-06, 429 P.3d 1049 (quoting Tenbusch v. Linn County , 172 Or. App. 172, 177 n. 6, 18 P.3d 419, rev. den. , 332 Or. 305, 27 P.3d 1045 (2001) ). See, e.g. , State v. Rennells , 253 Or. App. 580, 585, 291 P.3d 777 (2012), rev den , 353 Or. 410, 298 P.3d 1226 (2013) ("[W]e agree with the state that any claim of error was not preserved and even, arguably, that any error was invited when defense counsel appeared to agree that the testimony established venue * * *."); State v. Saunders , 221 Or. App. 116, 122, 188 P.3d 449, rev. den. , 345 Or. 416, 197 P.3d 1105 (2008) (defense counsel's statement that he could not "think of a better way" to instruct the jury invited any error pertaining to the trial court's subsequent jury instruction).

The invited error doctrine has no application in these circumstances. Here, the alleged error is the trial court's denial of appellant's motion to dismiss. Appellant did not "invite[ ] the trial court to rule [that] way." Saunders , 294 Or. App. at 105, 429 P.3d 1049. To the contrary, appellant directly challenged that ruling before the trial court. Appellant cannot be found to invite an error that she actively opposed.

To the extent that, by invoking "invited error," the state seeks to argue that appellant created the circumstances that gave rise to the need for postponement, the argument is inapt. The state has not offered authority for a blame-shifting argument, nor has the state developed a doctrinal explanation such as estoppel or waiver. See Beall Transport Equipment Co. v. Southern Pacific , 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons. , 187 Or. App. 472, 68 P.3d 259 (2003) (observing that it is "not this court's function to speculate as to what a party's argument might be," nor "is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself"). As a factual matter, other circumstances contributed to the need for postponement, such as scheduling the hearing as the final matter to be heard on the fifth day after the hospital hold began. Ultimately, those facts do little to show that appellant created the need for postponement. An attorney's tardiness at a prior unrelated hearing for a different client is not logically attributable to this appellant.

For those reasons, we conclude that the trial court erred in denying appellant's motion to dismiss.

Reversed.

      In relevant part, ORS 426.232 provides:
      "(1) If a licensed independent practitioner believes a person * * * is dangerous to self or to any other person and is in need of emergency care or treatment for mental illness, * * * the licensed independent practitioner may do one of the following:
      "(a) Detain the person and cause the person to be admitted * * *.
      "(b) Approve the person for emergency care or treatment at a nonhospital facility approved by the authority.
      "(2) * * * However, under no circumstances may the person be held for longer than five judicial days."
      Judicial days are calculated by excluding the first day, including the last day, and not counting weekends or holidays. See State v. L. O. W. , 292 Or. App. 376, 377, 424 P.3d 789 (2018) (citing ORS 174.120 ).

      In relevant part, ORS 426.095(2)(c) provides:
      "If requested under this paragraph, the court, for good cause, may postpone the hearing for not more than five judicial days in order to allow preparation for the hearing. * * * Any of the following may request a postponement under this paragraph:
      "(A) The person alleged to have a mental illness or the person alleged to be an extremely dangerous person with mental illness.
      "(B) The legal counsel or guardian of the person.
      "(C) The individual representing the state's interest."


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Christopher Michael GERIG, Defendant-Appellant.
    A166194
    Court of Appeals of Oregon.
    Submitted May 8, 2019. June 5, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. On a supplemental brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender. Christopher Michael Gerig filed the reply brief and a supplemental brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the briefs for respondent.
    Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.
   PER CURIAM

Defendant appeals his convictions for first-degree rape, ORS 163.375, and first-degree sexual abuse, ORS 163.427. The conduct underlying the convictions occurred at a party, while the victim was intoxicated. We affirm.

Defendant argues in his first two assignments of error that the trial court plainly erred by not instructing the jury on the rape and sexual abuse charges that it was required to find that defendant knew that the victim was incapable of consent due to physical helplessness, mental incapacity, or mental defect. In his third and fourth assignments of error, he similarly argues that the trial court plainly erred by not instructing the jury that it had to find defendant to be at least criminally negligent with respect to the victim's lack of capacity to consent. As the state points out in response, however, defendant's arguments are foreclosed by our decision in State v. Phelps , 141 Or. App. 555, 558-59, 920 P.2d 1098, rev. den. , 324 Or. 306, 925 P.2d 909 (1996), in which we concluded that the state is not required to prove that the defendant had a culpable mental state with respect to a victim's lack of capacity to consent due to physical helplessness, mental incapacity, or mental defect. See also State v. Nyembo , 292 Or. App. 215, 418 P.3d 784, rev. den. , 363 Or. 744, 430 P.3d 566 (2018).

Defendant also raises, in a pro se supplemental brief, challenges to the sufficiency of the evidence that are predicated on the state being required to prove that defendant had a culpable mental state as to the victim's lack of capacity to consent. Because the state was not required to prove that, we reject those challenges.

In his fifth assignment of error, defendant argues that the trial court plainly erred by not merging the guilty verdicts. State v. Spring is to the contrary, however, and we therefore reject that assignment without further discussion. 172 Or. App. 508, 21 P.3d 657, rev. den. , 332 Or. 559, 34 P.3d 1177 (2001) (holding that rape and sexual abuse guilty verdicts do not merge under ORS 161.067(1) because each offense contains an element that the other does not).

Affirmed.

      Under ORS 163.325(3), it is an affirmative defense to first-degree rape and first-degree sexual abuse, as charged here, for "the defendant to prove that at the time of the alleged offense[s] the defendant did not know of the facts or conditions responsible for the victim's incapacity to consent." That is, a defendant may prove a lack of knowledge to excuse the otherwise culpable conduct. Phelps , 141 Or. App. at 558-59, 920 P.2d 1098 ; see also State v. Simonov , 358 Or. 531, 538 n 3, 368 P.3d 11 (2016) (using ORS 163.375 and ORS 163.325 to illustrate instance of legislature expressly providing mental states for elements of offenses).

      Additionally, after the initial briefing was complete, defendant filed a supplemental brief that included supplemental assignments of error raising as plain error the trial court's instructions to the jury that it could return nonunanimous verdicts, and to the trial court's acceptance of the jury's nonunanimous verdict on the rape charge. Defendant contends that the Sixth and Fourteenth Amendments to the United States Constitution require unanimous jury verdicts. We reject those arguments on the merits without further discussion.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Christopher James MCMICHAEL, Defendant-Appellant.
    A166702
    Court of Appeals of Oregon.
    Submitted May 31, 2019. July 31, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant was discovered with a stolen 1984 Toyota Supra and subsequently convicted of unauthorized use of a vehicle, ORS 164.135, and possession of a stolen vehicle, ORS 819.300. Defendant challenges the denial of his motion for judgment of acquittal on both counts, in which he argued that there was insufficient evidence to establish that he knew that the car was stolen. We reject those assignments of error without written discussion. Defendant also appeals the supplemental judgment, arguing that the trial court erred when it imposed a $500 restitution award on the basis that defendant did not appear at the hearing. The state concedes that the trial court lacked authority to impose restitution merely on the basis that defendant failed to appear. See ORS 137.106(5) ("If the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue at the time of sentencing or at the time the court determines the amount of restitution."). At the restitution hearing, after a discussion among the parties and the trial court about the nature of the evidence supporting restitution, the court stated that, because defendant did not appear at the hearing, it was "going to default" defendant and impose the requested $500 in restitution. It is clear from the record that the court awarded restitution solely on the basis that defendant failed to appear.

We agree that that was error and accept the state's concession. We are not aware of any authority that relieves the state of meeting its burden of persuasion or the trial court of properly considering the state's evidence merely because of defendant's failure to appear at a resentencing hearing. Cf. State v. Desirey , 99 Or. App. 283, 285, 782 P.2d 429 (1989) (concluding that the trial court impermissibly struck defendant's motion to dismiss on the basis of defendant's failure to appear without considering the merits). Consequently, we reverse the supplemental judgment awarding restitution and remand for further proceedings.

Supplemental judgment reversed and remanded; otherwise affirmed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Brian Lee RICHARDSON, Defendant-Appellant.
    A165406
    Court of Appeals of Oregon.
    Submitted May 31, 2019. July 31, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the supplemental brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the briefs for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Among other convictions, defendant was convicted of strangulation and fourth-degree felony assault for which the trial court imposed upward durational departure sentences of 60 months' imprisonment and 24 months' post-prison supervision, totaling 84 months for each conviction. Defendant argues on appeal that, because the terms exceed the statutory maximum for each of those offenses, the trial court plainly erred by imposing them. That is, a total 84-month term for the convictions exceeds the 60-month maximum indeterminate sentence allowed by ORS 161.605(3) and OAR 213-005-0002(4). See State v. Jepsen , 292 Or. App. 884, 885, 425 P.3d 507 (2018) (concluding that, under ORS 161.605(3) and OAR 213-005-0002(4), it was plain error to impose a sentence of 94 months).

Although defendant did not preserve that argument, he asks us to correct the asserted error as one apparent on the record. ORAP 5.45(1). For its part, the state concedes that the trial court plainly erred in imposing those sentences and that we should remand for resentencing. The state's concession is well taken, and we accept it. We also exercise our discretion to correct the error for the reasons expressed in Jepsen , 292 Or. App. at 885, 425 P.3d 507 (error had significant effect on sentence, was correctable with a minimum of expended judicial resources, and state lacks interest in a defendant serving an unlawful sentence). We remand for resentencing and, consequently, we decline to address defendant's other assignments of error related to sentencing in which he seeks plain-error review (assignments of error five through seven). See State v. Kern , 298 Or. App. 274, 275 n. 1, 445 P.3d 936 (2019) (stating that defendant would have an opportunity on remand to address defendant's other unpreserved sentencing-related assignment of error). We reject defendant's remaining assignments of error (assignments of error one through four) without further discussion.

Remanded for resentencing; otherwise affirmed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Amanda MENDEZ, Defendant-Appellant.
    A167353
    Court of Appeals of Oregon.
    Submitted June 6, 2019. July 31, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Nora Coon, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, entered after a conditional guilty plea. She assigns error to the trial court's denial of her motion to suppress evidence discovered in the course of a warrantless search that, according to defendant, was not justified by an exception to the warrant requirement and violated Article I, section 9, of the Oregon Constitution. The evidence that defendant sought to suppress was found during a search of her person and purse that happened at the county courthouse pursuant to an inventory policy that applies to arrestees and inmates. Defendant argues that she was neither an "arrestee" nor an "inmate" for purpose of the inventory policy. The state concedes the error. We agree that, under the circumstances presented here, the trial court erred in denying defendant's motion to suppress; we accept the state's concession and reverse and remand.

Reversed and remanded.


text:
    In the MATTER OF I. T.-H., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. I. T.-H., Appellant.
    A169758
    Court of Appeals of Oregon.
    Submitted June 6, 2019. July 24, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the Mental Health Division for a period not to exceed 180 days. ORS 426.130. Appellant contends that the trial court erred because the record does not contain clear and convincing evidence that appellant is a "person with mental illness." ORS 426.005(1)(f). The state concedes that the evidence is legally insufficient to support appellant's commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment of commitment.

Reversed.


text:
    In the MATTER OF J. L. H., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. J. L. H., Appellant.
    A169913
    Court of Appeals of Oregon.
    Submitted June 6, 2019. July 31, 2019
    Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing her to the Mental Health Division for a period not to exceed 180 days based on the court's determination that she was a person with mental illness under ORS 426.005(1)(f)(A). The state concedes that the evidence is legally insufficient to support the involuntary commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the commitment judgment.

Reversed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Tyus Marquese BROWN, aka Tyus Brown, Defendant-Appellant.
    A166356
    Court of Appeals of Oregon.
    Argued and submitted June 10, 2019. July 31, 2019
    David J. Celuch filed the brief for appellant.
    E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Affirmed. State v. Armstrong , 52 Or. App. 161, 628 P.2d 1206, rev. den. , 291 Or. 662, 639 P.2d 1280 (1981).


author: POHLMAN, Judge:

text:
    STATE of Utah, Appellant, v. Jana CLYDE, Appellee.
    No. 20180197-CA
    Court of Appeals of Utah.
    Filed June 13, 2019
    Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellant
    Peter Stirba, Wendy Brown, and Matthew Strout, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.
    Opinion
   POHLMAN, Judge:

¶1 A magistrate must bind over a defendant for trial if he or she finds probable cause to believe that the defendant committed the crime charged. The magistrate here declined to bind Jana Clyde over for negligent homicide because he heard "no direct evidence that it was a gross deviation" from the standard of care for Clyde, a jailhouse nurse, not to treat an inmate for dehydration. The State appeals, and we reverse.

BACKGROUND

The Inmate's Medical Treatment

¶2 Clyde was a licensed practical nurse (LPN) at the Duchesne County Jail. On a Sunday, a young woman (Inmate) was booked into the jail on drug charges. By Thursday, she was dead.

¶3 Sunday . The booking report lists Inmate's weight at 129 pounds. When Inmate was booked, she tested positive for heroin and informed jail personnel on an intake form that she had a history of drug abuse and was withdrawing from drugs or alcohol. Inmate also noted on the intake form that she was taking medication for high blood pressure. Clyde generally had access to inmate intake forms.

¶4 Monday . Clyde saw Inmate to discuss her medication. Inmate appeared to be "a little weak," and Inmate said that she "hadn't been feeling good" and "probably had the flu." Inmate also had "been throwing up a little but wasn't real concerned about that." Clyde approved Inmate's blood-pressure medication and tested her blood pressure. Clyde concluded that it was "a little elevated" but that Inmate had not taken her pills yet. When Clyde asked Inmate about her drug use, Inmate responded that she did not have "any drugs in her system" and that it "had been several days since she'd used anything." Clyde testified that she thought, "Chick, you do some serious drugs and I know you're lying to me."

¶5 Clyde then gave Inmate her medication with a sports drink and arranged for Inmate to receive the blood-pressure medication twice a day. She also told Inmate to let her know if she wanted her blood pressure taken again and that she could fill out a medical request form to see the jail's physician assistant (PA) who visited on Thursdays.

¶6 Tuesday . A correctional officer at the jail (First Officer) noticed that Inmate was getting "weaker." First Officer told Clyde that Inmate was "not looking good" and that she wanted to give her a sports drink because "she kept throwing up." Clyde said that was fine.

¶7 Later in the day, First Officer again informed Clyde that Inmate was "not looking good" and was still "throwing up a lot." Clyde said to have Inmate fill out a medical request form for the PA's next visit.

¶8 Inmate filled out the medical request form, explaining that she had been "puking for 4 days straight," had "diarrhea," and could not "hold anything down[,] not even water." Inmate insisted that she was "not detoxing" and instead had a "stomach bug." Once the form was filled out, First Officer delivered it to Clyde. Clyde did not notify the PA.

¶9 First Officer also decided to move Inmate to a court-holding cell "to be watched more closely." The holding cell contains a video camera that First Officer believed would help with Inmate's medical observation. The camera showed Inmate using "the restroom several times" and vomiting a "brown substance." And though there was a sports drink bottle in the cell, First Officer stated that the camera did not capture Inmate taking in "a ton of fluid."

¶10 Wednesday . Another correctional officer (Second Officer) took medication to Inmate, but Inmate "said she was too sick to get out of bed." Ordinarily, the officers deliver medication at a "cuff port" so that they do not have to enter the cell. But because Inmate could not move, Second Officer "walked in there and gave her [the] medication." Inmate "didn't look normal," and it appeared that she had been vomiting. Second Officer may have informed Clyde of Inmate's condition. Clyde later gave a sports drink to Inmate through the cuff port.

¶11 Thursday . The PA came to the jail for his weekly visit. Clyde and the PA discussed Inmate and went to the court-holding cell to see her. Once there, Inmate did not respond to Clyde's voice or knocking on the door, and the PA told Clyde to call an ambulance. Inmate was found dead, weighing 87 pounds.

The Preliminary Hearing

¶12 The State charged Clyde with negligent homicide. At a preliminary hearing to determine whether Clyde should be bound over for trial on that charge, the State presented, among other evidence, testimony from the medical examiner who performed Inmate's autopsy, a recorded interview with Clyde, and testimony from a registered nurse (RN) from another jail.

¶13 The medical examiner determined that Inmate "died as a result of complications of dehydration in the setting of opiate withdrawal." In his examination of Inmate's body, the medical examiner noted "findings consistent with dehydration such as sunken eyes, tenting of skin, and reduced ... tissue turgor." The examiner testified that he based his final conclusion about the cause of death on Inmate's electrolyte results, which were "severely in the abnormal range" and indicative of "profound dehydration."

¶14 The examiner opined that dehydration is a "reversible condition" that can generally be cured, absent cardiac arrhythmia, almost up to the time of death with the use of IV fluids. He explained that fluids should be given intravenously so that they are absorbed by the body; giving fluids orally, in the examiner's experience, "will not resolve dehydration" once "there is a problem with either throwing up or diarrhea or a combination" of the two.

¶15 Next, the State introduced Clyde's interview with a detective. In the interview, Clyde explained that she knew it takes three to five days for the symptoms of heroin withdrawal to manifest. Clyde knew that the symptoms of heroin withdrawal include "elevated blood pressure[ ]," "diarrhea," "throwing up," and being "weak." As a nurse, Clyde knew the appropriate protocol in treating someone suffering from heroin withdrawal is to monitor blood pressure, provide fluids, and contact the PA. Clyde stated in the interview that if inmates demanded to see a doctor, she would "do a really good evaluation on them" by performing a "full set of vital signs," running a "dehydration test," "check[ing] their eyes," "check[ing] their mouth for saliva," and "do[ing a] tenting test." She would then "keep an eye" on them, observing things like whether "they [are] up and moving" and whether they are "keeping anything that they're taking in down."

¶16 Finally, the RN testified that "in assessing the risk of someone who's been vomiting and having diarrhea for four days," an LPN "definitely should see it as ... a potentially very dangerous situation." He testified that in that situation he, as an RN, would "immediately contact the" PA for orders to test her blood, "possibly start some IVs," and "even go to the hospital." The RN also explained that he would "continually watch[ ] vital signs," monitor eating and drinking, and run "blood labs" if he was unable "to get the vomiting and diarrhea under control with medication." The RN stated that the cause of the vomiting and diarrhea-whether heroin withdrawal or the flu-would not affect the treatment. Based on what he knew about Inmate's medical condition, he would have expected Clyde to do three things: chart Inmate's vital signs, contact the PA, and "follow up [a] minimum [of] twice a day." The failure to do so, in the RN's view, was a "deviation from the standard of care" expected from nurses.

¶17 After hearing the evidence, the magistrate acknowledged that "the standard for bindover is really very low," placing the standard somewhere between that needed for an arrest warrant and that needed to resist a directed verdict. The magistrate questioned whether "knowing that someone has been vomiting and had diarrhea for four days communicates the existence of a risk of death that's so significant that immediate action is warranted." The magistrate stated that he did not "have any evidence of how substantial this risk is"-one in ten or one in ten thousand. Ultimately, the magistrate concluded that he "definitely ha[d] evidence that [for Clyde] to not do something immediately was a deviation from the standard of care" but that there was "no direct evidence that it was a gross deviation," as required for criminal negligence. Unable to "bridge" the gap between ordinary negligence and criminal negligence without such evidence, the magistrate dismissed the charges against Clyde.

¶18 The State appeals.

ISSUE AND STANDARD OF REVIEW

¶19 The State contends that the "magistrate erroneously refused to bind [Clyde] over for negligent homicide." "Bindover determinations are mixed questions of law and fact to which we grant some deference." State v. Schmidt , 2015 UT 65, ¶ 13, 356 P.3d 1204 (cleaned up). That deference is "commensurate with the limited discretion under which a magistrate operates at a preliminary hearing." Id. (cleaned up). At a preliminary hearing, a magistrate may make limited credibility determinations but "may not weigh evidence." Id. "Any departure from the correct legal standard will always exceed whatever limited discretion the magistrate has in the bindover decision." Id. (cleaned up).

ANALYSIS

¶20 We must decide whether the State presented enough evidence for the magistrate to bind Clyde over for trial. As everyone agrees, the standard for bindover is relatively low. See State v. Ramirez , 2012 UT 59, ¶ 9, 289 P.3d 444. "All that is required is reasonably believable evidence-as opposed to speculation-sufficient to sustain each element of the crime(s) in question." Id. If this standard-the same as to secure an arrest warrant-is met, the magistrate must bind the defendant over for trial. State v. Schmidt , 2015 UT 65, ¶ 17, 356 P.3d 1204 ; see also Utah R. Crim. P. 7B(b).

¶21 The crime in question here is negligent homicide, which requires evidence that, in addition to "caus[ing] the death of another," Clyde (1) should have been aware of a "substantial and unjustifiable risk" of death and (2) "gross[ly] deviat[ed] from the standard of care that an ordinary person would exercise in all the circumstances" in failing to perceive that risk. See Utah Code Ann. §§ 76-2-103(4), 76-5-206(1) (LexisNexis 2017).

¶22 The State contends that the magistrate erred in concluding there was insufficient evidence to support that Clyde's conduct constituted a gross deviation from the ordinary standard of care. In response, Clyde defends the magistrate's decision while also contending that the State's evidence "fell short" in two other respects. Specifically, Clyde invites this court to affirm the magistrate's decision based on the alternative grounds that the State failed to show the applicable standard of care or the severity of the risk that existed. Beginning with the applicable standard of care, we address all three arguments in turn.

I. The Applicable Standard of Care

¶23 Clyde first argues that to prove negligent homicide, the State must establish the standard of care that is expected under the circumstances. Clyde then contends that we should affirm the magistrate's bindover decision because the State failed "to establish what standard of care applied specifically to ... an LPN working at the [j]ail." She asserts that neither the RN's nor the medical examiner's testimony established the specific standard of care "applicable to medical personnel." According to Clyde, the medical examiner's testimony-that dehydration was reversible almost up to the time of death-was "borderline nonsensical" and "inoperable as a standard of care" because "there was no discussion as to how to calculate" the time of death "when there is 'a recovery.' " And the RN's testimony similarly failed to establish a standard of care, in Clyde's view, because the RN "talked in terms of what he would do" as a registered nurse at a larger jail facility, never expressing "what was standard in the industry." (Emphasis added.) Clyde then suggests that the RN, who may simply have been "overly cautious," did not necessarily represent the typical standard of care exercised by a jailhouse medical professional.

¶24 The State counters that the preliminary hearing evidence was sufficient on this point. It stresses that Clyde, while focusing on the RN's and medical examiner's testimonies, ignores "her own damning statements." In her interview, Clyde stated that she knew the appropriate protocol in treating someone suffering from heroin withdrawal would be to monitor blood pressure, provide fluids, and contact the PA. And when asked what she would do if an inmate demanded medical attention, Clyde responded that she would "do a really good evaluation," check "vital signs," perform a "dehydration test," and "keep an eye" out to ensure that the person was "keeping anything that [he or she was] taking in down." The State also defends the medical examiner's testimony as "[i]nferentially ... support[ing] the standard of care established by" Clyde's statements. The State argues that "the inability to calculate exactly when death might occur does nothing to undermine ... the ordinary standard of care" but rather "emphasizes the substantial risk of inaction at the first sign of serious trouble." And the RN's testimony, according to the State, "adequately defined, for preliminary hearing purposes, the standard of care" because there is a "reasonable inference" that the RN's testimony "would address the standards of care applicable to all nurses." So when the RN testified that he would have expected Clyde to chart Inmate's vital signs, contact the PA, and "follow-up [a] minimum [of] twice a day," the State asserts that he helped define the applicable standard of care.

¶25 We agree with the State. "The bindover standard is intended to leave the principal fact finding to the jury." State v. Virgin , 2006 UT 29, ¶ 21, 137 P.3d 787. And in criminal negligence cases, like this one, "the jury decides not only the facts, but also the legal standard for the kind of conduct that warrants criminal sanctions." State v. Warden , 813 P.2d 1146, 1154 (Utah 1991) (Stewart, J., dissenting); see also id. at 1151 (majority opinion) (indicating that criminal negligence is a jury question). A "magistrate's assessment of [the evidence at a preliminary hearing] is deferential, viewed in the light most favorable to the prosecution and with all reasonable inferences given to the prosecution." State v. Nielsen , 2014 UT 10, ¶ 51, 326 P.3d 645. "A reasonable inference exists when there is at least a foundation in the evidence upon which the ultimate conclusion is based, while in the case of speculation, there is no underlying evidence to support the conclusion." Carter v. State , 2019 UT 12, ¶ 75, 439 P.3d 616 (cleaned up).

¶26 Viewing the evidence deferentially, there is enough evidence here to establish the applicable standard of care. The State presented evidence that Clyde herself knew that the appropriate protocol-that is, the standard of care-in treating someone suffering from heroin withdrawal would be to monitor blood pressure, provide fluids, and contact the PA. Moreover, Clyde knew that after Inmate requested a doctor, she should perform a dehydration test and ensure that Inmate was keeping fluids down. The RN similarly testified that, under the circumstances, he would have expected Clyde to monitor Inmate's vitals, contact the PA, and "follow-up [a] minimum [of] twice a day." The RN stated that the failure to do these three things was a "deviation from the standard of care." Thus, there was "reasonably believable evidence" that fixed the standard of care. See State v. Ramirez , 2012 UT 59, ¶ 9, 289 P.3d 444.

II. Severity of the Risk

¶27 Clyde next argues that we should affirm the magistrate's bindover decision because there was no evidence of a "substantial and unjustifiable risk" of Inmate's death. See Utah Code Ann. § 76-2-103(4) (LexisNexis 2017). Echoing the magistrate's concerns, Clyde argues that there is a lack of evidence on "the likelihood that the risk alleged would result in [Inmate's] death." See supra ¶ 17. Specifically, she asserts that "the State presented no evidence on the probability-large or slight-that [Clyde's] conduct would cause [Inmate's] death."

¶28 The State responds that its evidence at the preliminary hearing "established that a person experiencing severe vomiting and diarrhea constitutes 'a potentially very dangerous situation' because a person can die from the resultant severe dehydration." The State also argues that Clyde "should have been aware of the risk" to Inmate because she "usually receives an inmate's intake papers" and heard from First Officer that Inmate was sick and vomiting "a lot."

¶29 We again agree with the State. "The magnitude of a given risk is determined in part by the probability that the risk will be actualized and in part by the seriousness of the consequence if the risk is actualized." State v. Standiford , 769 P.2d 254, 263 n.9 (Utah 1988). This probability to seriousness ratio is fact-dependent, but "the potential of a risk [of] death ... is always serious." See id. Thus, even a small likelihood of death might create a "substantial and unjustifiable risk" of death. Id. (cleaned up).

¶30 Here, the risk of not treating Inmate for dehydration was death. The RN testified that "vomiting and having diarrhea for four days" is "definitely ... a risk" and a "potentially very dangerous situation." And the risk was particularly unjustifiable because, as the medical examiner testified, it is generally avoidable. According to his testimony, dehydration is a "reversible condition" that can be cured, absent other conditions, almost up to the time of death by giving fluids intravenously. In fact, the magistrate recognized that if the jail "had medical visits on Wednesday, we probably wouldn't be here."

¶31 The State also presented evidence that Clyde should have been aware of the risk and was in a position to combat it. Clyde generally would have received Inmate's intake form, which stated that Inmate was withdrawing from drugs or alcohol. Clyde also suspected, despite Inmate's protestations to the contrary, that Inmate used drugs recently. When Inmate said she was not withdrawing from any drugs, Clyde testified that she thought, "Chick, you do some serious drugs and I know you're lying to me." In addition, Clyde received reports from at least First Officer that Inmate was sick and should be moved to court holding for medical observation. Given the seriousness of the risk (death) and the relative ease with which it can be avoided (IV fluids), we conclude that there was evidence of a "substantial and unjustifiable risk" of death. See Utah Code Ann. § 76-2-103(4) ; Standiford , 769 P.2d at 263 n.9.

III. Gross Deviation

¶32 Having disposed of Clyde's alternative bases to affirm, we turn finally to the State's contention that Clyde's "near complete indifference to [Inmate] grossly deviated from the standard of care" and that the magistrate erred in concluding otherwise. Despite Clyde's knowing that she should monitor Inmate, provide her with adequate liquids, and consult with the PA, the State asserts that Clyde "did none of this." And because "[t]he evidence showed that a person can die from severe dehydration," the State argues that Clyde's "failure to perceive [that risk] constituted 'a gross deviation from the standard of care.' " (Quoting Utah Code section 76-2-103(4).)

¶33 To defend the magistrate's ruling, Clyde relies on State v. Warden , 813 P.2d 1146 (Utah 1991), in which the supreme court held that criminal negligence requires, in Clyde's words, "something substantially more than ordinary negligence." See id. at 1151 ("[I]t is important to note that criminal negligence differs substantially from ordinary civil negligence."). Clyde argues that "[t]he State failed to show any evidence that [Clyde's] conduct was a gross deviation from the standard of care."

¶34 We agree with the State for a third time. The evidence in this case, taken in the light most favorable to the State, adequately established a reasonable inference that Clyde's near complete indifference to Inmate grossly deviated from the standard of care for treating severe dehydration, especially when the result of a failure to treat is death. Other than checking Inmate's blood pressure on Monday and dropping off a sports drink on Wednesday, Clyde did not take Inmate's vital signs or perform other tests, did not check on Inmate in her cell, and did not contact the PA, even after receiving a medical request form stating that Inmate had been "puking for 4 days straight" and was unable to "hold anything down." First Officer, who was not charged with Inmate's medical care, informed Clyde that Inmate "was not looking good" and even moved Inmate to court holding to facilitate medical observation because she noticed Inmate's deteriorating condition. And Second Officer may have informed Clyde that Inmate was too weak to get out of bed. Clyde failed to follow the protocol that she identified by not running tests or even "keep[ing] an eye on [Inmate]." Thus, according to the State's evidence at the preliminary hearing, there is "a wide gulf between the standard of care [Inmate] should have received and the care [she], in fact, received." See id. at 1152.

¶35 We emphasize that a preliminary hearing is not concerned with the ultimate merits of the State's case, that is, whether the State will be able to prove at trial the defendant's guilt beyond a reasonable doubt. See State v. Schmidt , 2015 UT 65, ¶ 18, 356 P.3d 1204. Rather, the "primary purpose of preliminary hearings is to allow magistrates to ferret out groundless and improvident prosecutions without usurping the jury's role as the principal fact-finder." Id. ¶ 19 (cleaned up). We accordingly express no opinion on the merits of the State's case but conclude that the State presented "reasonably believable evidence ... sufficient to sustain each element of" negligent homicide. See State v. Ramirez , 2012 UT 59, ¶ 9, 289 P.3d 444. Therefore, the magistrate should have bound Clyde over for trial. See Utah R. Crim. P. 7B(b); Schmidt , 2015 UT 65, ¶ 43, 356 P.3d 1204.

CONCLUSION

¶36 We reverse the magistrate's decision and remand with a mandate to bind Clyde over for trial.

      In reviewing a magistrate's bindover decision, we "view all evidence in the light most favorable to the prosecution and draw all reasonable inferences in favor of the prosecution." State v. Schmidt , 2015 UT 65, ¶ 4, 356 P.3d 1204 (cleaned up). We recite the facts with that standard in mind.

      There is some dispute as to when Inmate was moved, but Clyde agrees that "if one possible timeline of events is more helpful to the State's case, [we] should assume that timeline applies." First Officer testified that Inmate was moved to court holding on Tuesday. A detective assigned to Inmate's case also testified about the move and thought Inmate may have been placed in court holding on Monday or on Thursday but ultimately was unsure about which day. We assume the move happened on Tuesday, viewing the facts in the light most favorable to the State. Whether it happened earlier does not affect our resolution of the case.

      There was also testimony that Inmate weighed 112 pounds at the time of her death.

      According to the RN's testimony, registered nurses generally have more training than LPNs, giving registered nurses "quite a bit more breadth [than LPNs in what] they can do before they contact a medical provider."

      Before May 1, 2018, this rule was numbered as rule 7(i)(2) of the Utah Rules of Criminal Procedure. Because the rule in effect at the time of Clyde's preliminary hearing does not materially differ from that now in effect, we cite the current rule.

      This element is not disputed, at least not for purposes of the bindover.

      Clyde did deliver a sports drink to Inmate on Wednesday and was aware that the officers had also given her fluids. But the camera, as well as Inmate's medical request form, showed that Inmate was unable to "hold anything down[,] not even water."

      In State v. Warden , 813 P.2d 1146 (Utah 1991), the supreme court upheld a conviction of negligent homicide when the defendant, an obstetrician, failed to treat a premature infant for respiratory failure. Id. at 1148, 1153. Evidence at trial established that the doctor should have placed the infant "in intensive care immediately after the birth" and "transferred [the infant] to a hospital with the most sophisticated level of neonatal intensive care" if the condition deteriorated. Id. at 1152. The obstetrician did none of those things, leaving the infant instead with the parents who had no medical training and who were led to believe that medical attention was unnecessary. Id. Here, we are not dealing with a jury's finding of gross negligence beyond a reasonable doubt, as in Warden . Instead, we address the much lower standard of probable cause that applies at preliminary hearings. If the doctor's inaction in Warden was able to sustain a conviction for negligent homicide, it follows a fortiori that Clyde's inaction here, even if not deemed as extreme as the obstetrician's, supports probable cause to believe that Clyde is guilty of negligent homicide.