State v. Brannan

549 P.3d 19

332 Or.App. 36

STATE of Oregon, Plaintiff-Respondent,

v.Kevin Gregory BRANNAN, Defendant-Appellant.

A176827

Court of Appeals of Oregon.

Submitted October 27, 2023

April 17, 2024

Beaverton Municipal Court, 2110018; Juliet J, Britton, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Francis C. Gieringer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, Salem, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

EGAN, J.

₃₇In this criminal case, defendant appeals his conviction for driving under the influence of intoxicants (DUII), ORS 813.010.¹ On appeal, defendant presents four assignments of error. For the reasons that follow, we affirm.

[1] Defendant’s First Assignment of Error. Defendant argues that the trial court erred in denying his motion for judgment of acquittal ("MJOA"), because the state did not present evidence that defendant drove while intoxicated. "We review the denial of an MJOA for whether a rational fact-finder could find, after viewing the evidence in the light most favorable to the state and making reasonable inferences and credibility choices, that the state proved every element of the offense beyond a reasonable doubt." State v. Davis, 261 Or App 38, 39, 323 P.3d 276 (2014) (citation omitted).

[2] The DUII charge arose out of an incident in which, at around 1:00 a.m., police officers found defendant in the driver seat of a BMW, perceptibly intoxicated. The car was located directly at an intersection, parked perpendicular in the middle of the street, and blocking the south lane of travel in a well-traveled area of Beaverton. The BMW’s hazard lights and engine were on, and the key was in the ignition. The responding officer turned off the car and removed the key from the ignition. Another officer at the scene observed that defendant moved slowly; he needed assistance getting out of the car and standing up; and he spoke with a slow, slurred speech. In addition, the officer smelled the odor of alcohol coming from defendant. Inside the BMW, officers found a still-cold, open can of beer in the center console, and they found six open beer cans on the front passenger floorboard. Defendant’s blood alcohol content (BAC), which was tested about two-and-a-half hours after officers found him, was 0.27.

In this case, sufficient evidence existed for a jury to find defendant guilty of DUII. The jury could reasonably infer that defendant had been driving while intoxicated based on the evidence just described. State v. Hedgpeth, 365 ₃₈Or. 724, 731-32, 452 P.3d 948 (2019) ("[A] court evaluating a motion for judgment of acquittal does not base its decision on whether any particular inference to be drawn from the evidence is ‘more likely than not.’ Rather, *** the evidence it a case can give rise to more than one reasonable inference, and when it does, the factfender is allowed to decide the case.").

[3] Defendant’s Second and Thord Assignments of Error. Defendant argues that the trial court erred when it permitted two officers to testify at trial about their opinions as to whether defendant drove to the place where they found him. According to defendant, the officers’ opinions were not rationally based on their perceptions, and their opinions were not helpful to the jury as required by OEC 701.² We review the admissibility of lay opinion evidence for an abuse of discretion, State v. Lerch, 296 Or. 377, 383, 677 P.2d 678 (1984) (citation omitted), but when the court’s ruling "effectively limit[s] the applicability of OEC 701[,]" we review for errors of law, State v. Barnes, 208 Or App 640, 648, 145 P.3d 261 (2006).

[4, 5] In this case, we review for abuse of discretion, because the trial court’s ruling did not limit the applicability of OEC 701, and we determine that the trial court did not abuse its discretion when it admitted the officers’ lay opinion testimony. First, the opinions were not speculative, because they were rationally based on the officers’ observations and based on their knowledge from patrolling that area.³ See State v. Davis, 351 Or. 35, 54, 261 P.3d 1197 (2011) ("The rational connection requirement means only ₃₉that the opinion or inference advanced by the witness is one which a normal person could form on the basis of observed facts." (Citation and internal quotation marks omitted.)). Second, the lay opinion evidence was relevant to helping the jury understand the officers’ testimony— that they believed defendant drove—particularly after defendant, on cross examination, asked the officers about whether they had observed defendant driving or observed the vehicle in motion.⁴ See State v. Wright, 323 Or. 8, 17, 913 P.2d 321 (1996) ("The concept of ‘helpfulness’ in OEC 701 subsumes a relevancy analysis.").

[6–8] Defendant’s Fourth Assignment of Error. Defendant requests that we review whether the trial court plainly erred by allowing the prosecutor to shift the burden of proof during the state’s closing arguments. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may, in its discretion, consider a plain error."). For an error to be plain, the error must (1) be one of law; (2) be obvious and not reasonably in dispute; and (3) appear on the face of the record. State v. Gornick, 340 Or. 160, 166, 130 P.3d 780 (2006) (citation omitted). A prosecutor’s improper comments constitute plain error "only if they are so prejudicial that they deprived defendant of a fair trial." State v. Chitwood, 370 Or. 305, 317, 518 P.3d 903 (2022). Even if the error is plain, we must exercise our discretion whether to consider the error, and such a decision "should be made with utmost caution." Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991).

Defendant’s theory at trial was that the state could not prove that defendant drove, because no witnesses observed defendant driving. The state’s theory of the case was that, even though there was no direct evidence that defendant drove while intoxicated, the circumstantial evidence proved that defendant drove. During the prosecutor’s closing arguments, the prosecutor said,

₄₀"Now on redirect with both of the officers, I asked them what seemed like may be funny questions to get to the basic premise that a car doesn’t wind up parked on a public roadway with the engine running, unless somebody drove it there.

"There was nobody else on scene, apart from the defendant, who could have done so. Nobody came forward and said, ‘I was driving the car.’

"And while the Defense absolutely has no obligations to put on any evidence, at all, there was no evidence to the contrary that the, defendant was driving the car. Because understand right, that the questions and statements of the lawyers—that’s not evidence. What is evidence are the observations of the people who were there, as well as the direct and circumstantial evidence that points to the existence of a certain fact.

"So, ladies and gentlemen, we all know that a car doesn’t magically just show up, parked in the way that it was on this public roadway, with the defendant happening to be behind the wheel of the car. It—it is just unreasonable, I submit, to conclude that anyone other than the defendant got it there."

(Emphasis added.) In response, defendant argued:

"Sure, somebody drove it there, it didn’t get there on its own. If someone else drove the car and my client encountered him. Maybe my client was nowhere near the car to begin with and walked up and sat down and was impaired and that’s where he was encountered by officers.

"The fact is, the fact that we can play unlimited variance on this theme shows that there is reasonable doubt here. Reasonable doubt is based on common sense and reason as the Judge told you. And there’s not—again, no proof that it’s my client’s car, no proof that he is the registered owner."

During the state’s rebuttal arguments, the prosecutor responded to defendant’s claims that "someone else drove the car":

"And [defense counsel] also kind of g[a]ve you this list of maybes. Right? And said that that’s got to be reasonable doubt. But keep in mind that reasonable doubt has the word reasonable in it. Right? So, in order to play any sort of role, the inference that you make has to be a reasonable ₄₁one. It has to be reasonable, based on your common sense and based on your experience.

"So when he says—and it’s also got to be based on evidence, too. So when he says, ‘Well, maybe somebody else drove the ear to where it is.’

"Perfect. Where’s the evidence of that.

‘"Well, maybe, you know, [defendant], just kind of got into a car that belongs to somebody else, and it was still running.’

"Where’s the evidence of that. There isn’t any evidence that any of these possible, plausible, maybe type excuses that [defense counsel] wants you to kind of bite off on, are the case.

"The * * * chain of circumstances that the state has spelled out in this is unbroken and uncontested. Because, keep in mind, that just because [defense counsel]’s kind of getting * * * up here and talking about these maybe’s, and talking about what it’s not illegal to do, you know, he’s got to convince you with evidence. Something more than just him getting up here and saying stuff, because we can play that game all day long.

"And the reality is, is that the evidence in this case has established that chain of circumstances that points to the existence of the fact that it was the defendant who was driving the car. No one else there.

"* * * * *

"But that’s just the thing. That evidence sword that [defense counsel] is talking about, that * * * establishes the frets on which you’ve got to make all of...