State v. Banks

318 Or.App. 381

507 P.3d 787

STATE of Oregon, Plaintiff-Respondent,

v.Ronald William BANKS, Defendant-Appellant.

A172569

Court of Appeals of Oregon.

Argued and submitted September 9, 2021.

March 16, 2022

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Mooney, Presiding Judge, and Pagán, Judge, and DeVore, Senior Judge.^*

DeVORE, S. J.

Defendant appeals his conviction for driving under the influence of intoxicants (DUII), ORS 813.010.¹ He assigns error to the trial court's exclusion of lay witness testimony offered to rebut allegations about defendant's behavior at the scene of an accident. We agree that the trial court erred in concluding that the proffered evidence was scientific in nature under OEC 702. Because the error was not harmless, we reverse.

When we review a trial court's evidentiary ruling, we do so in light of the record before the court at the time of that ruling. State v. Eatinger , 298 Or. App. 630, 632, 448 P.3d 636 (2019). When evaluating whether the exclusion of that evidence was harmless, we consider all pertinent parts of the record. Id. The dispositive facts—for the limited purpose of this appeal—are undisputed.

In July 2018, Pendleton police officers were dispatched to the scene of a hit-and-run accident that damaged a parked car and trailer. When Sergeant Reddington arrived, defendant and other people stood near the damaged car. Reddington spoke with defendant. Defendant first told Reddington that he had seen the crash through his rearview mirror while driving by. Defendant told Reddington that the suspect was driving a "Dodge Cummins diesel pickup towing a trailer." Reddington noticed that defendant's answers were inconsistent, his speech was thick and slurred, and he was unsteady on his feet. When asked more, defendant told Reddington that he himself had been driving a "Dodge Cummins." Defendant asked to return to his car to get water because his mouth was dry. Reddington accompanied defendant on the walk to defendant's parked Dodge Cummins diesel truck and attached trailer. Reddington observed damage to the truck that he suspected had resulted from the accident.

Defendant then acknowledged that he had been involved in the crash but said that he had not been drinking.

He told Reddington that he had taken an aspirin, heart medication, cyclobenzaprine, and gabapentin that morning, but denied taking any narcotics that day. When asked if he had ever suffered a head injury, defendant told Reddington that he had been in some bad car accidents. Defendant added that he had balance problems and "wobbled here and there" but did not know why. During the conversation, Reddington noticed that defendant continuously yawned; when asked about that, defendant attributed the yawning to getting only a few hours of sleep. Reddington also noticed that defendant's pupils appeared to be dilated and that his eyes did not react much to immediate light.

Defendant agreed to take a field sobriety test, which was recorded through Reddington's dash cam. Defendant did not exhibit horizontal gaze nystagmus (HGN), or involuntary jerking of the eyes, but he exhibited five out of eight possible clues for intoxication during a walk-and-turn test and two out of four possible clues on a one-leg stand test, and he measured time too quickly on a passage-of-time test. Based on that performance and his conversation with defendant, Reddington arrested defendant for DUII. At the police station, a breathalyzer test showed that defendant had a blood alcohol content of 0.00, indicating that he had no alcohol in his system. A drug recognition expert (DRE) tested defendant and determined that he was under the influence of a narcotic analgesic and a depressant. Defendant's urine sample later tested positive for two controlled substances: hydrocodone (known as Vicodin ) and zolpidem (known as Ambien ).

Prior to trial, the state filed a motion in limine that sought to exclude the testimony of defendant's lay witnesses, i.e. , his wife and children, that defendant had experienced syncopal episodes—a medical condition characterized by a loss of muscle control and consciousness. The state objected that such testimony "is a scientific assertion that must be established through an expert." At the pretrial hearing, the state argued exclusively that the testimony should be excluded because lay witnesses cannot testify about a medical diagnosis of "synaptic [sic ] episodes." Defendant responded that he was not offering any scientific evidence, but just the personal observations of his wife and children that "they have observed him act in this particular manner in the past, and then he's indicated afterwards no recollection of what occurred during [the episodes.]" Defendant stressed that the witnesses would not "offer any medical diagnosis" or "use any big, fancy words" but would "simply tell the jury what they personally have observed in the past regarding [defendant] and his behavior" and compare that to defendant's behavior that they observed when watching the dash cam footage. Based on those arguments, the trial court granted the state's motion in limine and "relie[d] on and adopt[ed] as well taken the state's * * * arguments, points, authorities, and logic, as expressed in its motion * * *." The state did not offer other objections, and the trial court did not offer any other basis for its ruling.²

The next day, defendant made an offer of proof to preserve for appeal what the lay witnesses’ testimony would have been if allowed. That offer consisted of testimony from defendant's wife, who testified that, in the 17 years the couple had resided together, she had observed him having "episodes where he is awake and acting and doing stuff, but later has no recollection of what occurred[.]" She testified that those episodes had happened three or four times over the years, that the episodes mirrored the behavior of defendant in the video of his field sobriety test, and that, during those episodes, he "wasn't normal." When asked whether, to her personal knowledge, defendant had "been working with his doctor to determine the origin and cause" of the incidents, defendant's wife answered "yes."

At trial, the state presented evidence from a toxicologist, who confirmed that defendant's urine had tested positive for hydrocodone and zolpidem but allowed that those tests did not confirm the amount of those substances in defendant's system or when he took them. The toxicologist testified that those drugs could be detected from one to three days after use, while only affecting the user for four to eight hours.

Defendant presented Trace Schreiner, a former police officer and DRE instructor, as an expert witness. Schreiner testified regarding the symptoms he would expect a suspect to display if under the effect of depressants and narcotic analgesics, including nystagmus, a normal body temperature, and a slower pulse. In his closing argument, defendant used Schreiner's testimony to argue that defendant did not display symptoms that a person under the influence of the alleged medications would have displayed. Therefore, defendant argued, he was not impaired by a controlled substance, that he was "tired and impaired by a lack of sleep," and that his performance on some field sobriety tests was impaired by previous injuries.

On appeal, defendant argues that the trial court erred in excluding, as impermissible scientific evidence under OEC 702, the lay witness testimony regarding defendant's past episodes of memory loss and behavior similar to that he exhibited during the field sobriety test.³ Defendant argues that that error was not harmless because the state relied on defendant's physical symptoms to argue that he was under the influence of narcotics.

The state does not pursue on appeal its objection below—that the contested evidence was impermissible scientific evidence. Instead, the state makes two belated arguments. For the first time on appeal, the state argues that the disputed testimony was inadmissible as lay witness testimony because defendant's offer of proof failed to establish that such testimony would be "helpful" to the jury, as required by OEC 701. That rule provides:

"If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inference is limited to those opinions or inference which are:

"(1) Rationally based on the perception of the witness; and

"(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue."

OEC 701. Specifically, the state argues that defendant's wife did not testify whether defendant's past behavior occurred after he had taken his prescription medication, and, as a result, her testimony was "unhelpful" because, absent comparative background on those earlier episodes, her testimony was "irrelevant to the purpose for which it was offered."

Alternatively, the state argues that the offer of proof was imperfect. See State v. Tiner , 340 Or. 551, 557, 135 P.3d 305 (2006), cert. den. , 549 U.S. 1169, 127 S.Ct. 1125, 166 L.Ed.2d 896 (2007) (when a single offer of proof contains both admissible and inadmissible evidence, it is not error to reject the entire offer). The state argues that the disputed testimony included the statement of defendant's wife that defendant had sought medical attention as a result of the episodes of odd behavior. The state suggests that the testimony may have been hearsay because the testimony purportedly did not specify whether defendant's wife had personal knowledge about her husband seeking medical attention. The state reasons that, because the disputed testimony may be at least partially flawed, any error in...