Oregon Supreme Court 09-22-11

Witnesses may give lay opinions about what they perceived, so long as it is based on personal experience, relevant and helpful to the jury. Here, the mother of a child who suffered a brain injury should have been allowed to testify in this shaken baby case that she saw the victim 3 days before the alleged shaking and she looked like her daughter when her daughter was suffering from dehydration or pressure on the brain. Such opinion evidence is qualitatively different from a simple description of observed symptoms in the same way that lay opinion testimony of intoxication is different from saying someone looked disheveled and glassy eyed. And her opinion that the victim looked like she was suffering from dehydration or pressure on the brain was not speculative. She knew something was wrong that looked like her child's experience. She just couldn't give an expert opinion.

The fact that the friend told the victim's mom her opinion, however, was irrelevant. Victim's mom's knowledge of the friend's opinion did not make it more or less likely that the victim's injuries were caused on the day of her death, as charged or, alternatively, several days earlier.

In deciding whether to reverse or affirm, the appellate court must ask whether "there is little likelihood that the error affected the jury's verdict." Here, the excluded testimony would have been important evidence supporting defendant's theory and buttressing defendant's experts. More importantly, by excluding the testimony regarding potential brain injury and the friend's experience with her child but allowing the same testimony regarding dehydration, the evidence misleadingly supported the state's theory that the child was merely dehydrated several days before, not suffering from a brain injury. Reversed. State v. Davis

Experts are allowed to give the basis of their opinions. Here, defense experts testified that they believed the child did not die from injuries caused on the charged date, but from abuse caused days earlier. A crucial basis of that expert opinion was the medical and other evidence that the child suffered from chronic child abuse. Experts are allowed to give the basis of their opinion, even if it would not otherwise be relevant. Just as with the evidence above, the trial court's error was not harmless. The expert opinions were at the heart of defendant's case and the excluded evidence was at the heart of their opinion. Reversed. State v. Davis

A guilty/no contest plea is not appealable unless the defendant can show that the sentence "exceeds the maximum allowable by law" or was cruel and unusual. The phrase "exceeds the maximum allowable by law" in the statute allowing post-plea appeals refers to a quantitative, dispositional maximum, not the procedure. Here, the judge essentially punished the defendant for pleading no contest by adding an additional $100.00 fine. Such a fine was well within the allowed range. The fact that the judge may have imposed the fine through an unconstitutional process or for an unconstitutional reason does not create an avenue for appeal where none otherwise exists. State v. Cloutier