State v. Dickens

1

325 Or.App. 194

STATE OF OREGON, Plaintiff-Respondent, v. DANIEL RAYMOND DICKENS, aka Daniel Raymon Dickens, Defendant-Appellant.

A176100

Court of Appeals of Oregon

April 5, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted March 9, 2023.

Washington County Circuit Court 19CR75606 Erik M Buchér, Judge.

Francis C. Gieringer, 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.

Erica L. Herb, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

EGAN, J Defendant appeals a judgment of conviction for one count of unlawful possession of methamphetamine, ORS 475.894(2)(a) (Count 1), and one count of driving under the influence of intoxicants (DUII), ORS 813.010 (Count 2). On appeal, he challenges only his conviction for DUII. In his first assignment of error, he contends that the trial court erred when it ruled that the state's drug recognition expert (DRE), Deputy Majors, could testify that "defendant appeared to be on the 'downside of meth,'" and he contends that that error was not harmless. We agree with defendant. We reverse and remand defendant's conviction for DUII, remand for resentencing, and otherwise affirm.^[1]

We review a determination that evidence is "scientific" and, if so, whether it is admissible, for legal error. State v. Eatinger, 298 Or.App. 630, 642, 448 P.3d 636 (2019).

As an initial matter, we agree with both defendant and the state that Majors's testimony that defendant appeared to be on the downside of methamphetamine was scientific evidence. Therefore, to be admissible, it was required to meet the Brown/O'Key foundational requirements. See Eatinger, 298 Or.App. at 642 (noting scientific evidence is subject to the “Brown/O'Key foundational requirements").

Further, we agree with defendant that the state did not lay a sufficient foundation under Brown/O'Key for the trial court to admit Majors's "downside of meth" testimony. We have previously "approved the 12-step DRE protocol as scientific evidence because its complete administration by a competent examiner qualified for admission as scientific evidence," but the admissibility of "the complete DRE protocol as scientific evidence does not demonstrate the general admissibility of each component of the protocol." State v. Bevan, 235 Or.App. 533, 542, 233 P.3d 819 (2010) (emphasis in original; internal quotation marks omitted). In this case, the "scientific" evidence presented regarding the "downside of meth" came not as a result of the complete administration of the 12-step DRE protocol, but from observations Majors made during certain component pieces of that protocol. And the state presented no evidence that the methodology utilized to draw conclusions from such observations "generally has been accepted in the relevant field, has been used in a reported judicial decision, has a known rate of error, is mentioned in specialized literature, or is not a novel, even singular, employment in this state." State v. Aman, 194 Or.App. 463, 472-73, 95 P.3d 244 (2004), rev dismissed, 339 Or. 281 (2005) (concluding trial court erred in admitting result of "llstep DRE test without toxicological confirmation" as scientific evidence).

To be sure, the state may be correct that "nothing in the DRE protocol prohibits an officer from forming a less-than-conclusive opinion in addition to the officer's formal DRE conclusions"; however, that does not mean that an officer's "less-than-conclusive opinion" concerning impairment can be presented to the jury in a manner that draws its persuasive force from the mantle of science.

Notwithstanding that evidentiary error, "we must affirm if the error was harmless." Eatinger, 298 Or.App. at 645. "An error is harmless if there is little likelihood that the erroneously admitted evidence affected the verdict." Id.

We agree with defendant that the error was not harmless. The erroneously admitted evidence was scientific in nature Bevan, 235 Or.App. at 543 (noting "scientific evidence has a manifest potential to influence the jury" and, therefore, "erroneous admission of such evidence weighs against a conclusion that an error was harmless"), and the state highlighted the erroneously admitted scientific evidence during its...