State v. Ortiz

554 P.3d 796

372 Or. 658

STATE of Oregon, Petitioner on Review,

v.Stephanie Andrea ORTIZ, Respondent on Review.

(CC 20CR23850) (SC S070216)

Supreme Court of Oregon, En Banc.

Argued and Submitted January 11, 2024

August 8, 2024

On review from the Court of Appeals.^* (CA A175738)

Joanna L. Jenkins, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Peter G. Klym, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

BUSHONG, J.

₆₆₀At defendant’s criminal trial on a charge of driving under the influence of intoxicants (DUII), the arresting officer described the two field sobriety tests (FSTs) that she had administered to defendant—the walk-and-turn and the one-leg-stand tests¹—as "standardized" tests that are "designed to determine impairment" and supported by "studies conducted to prove their validity." Defendant did not object to that testimony, and a jury found her guilty of DUII. The Court of Appeals concluded that allowing that testimony constituted plain error because it was scientific evidence received without an adequate foundation, and the court exercised its discretion to reverse the conviction based on that error, concluding that it "was not harmless." State v. Ortiz, 325 Or App 134, 139, 142, 528 P.3d 795 (2023).²

We allowed review to address the application of plain-error review in this context. As we will explain, most of the officer’s testimony about the two FSTs was admissible. But even if receiving part of the officer’s testimony constituted plain error—an issue that we need not decide—we conclude that the Court of Appeals abused its discretion in reversing based solely on its determination that the error was not harmless. That conclusion is not a legally sufficient basis for reversal on plain-error review under our prior cases and the Court of Appeals’ own precedent. Accordingly, we reverse and remand to the Court of Appeals to consider the appropriate factors in exercising its discretion and, if necessary, address defendant’s remaining assignment of error.

I. BACKGROUND

A. Facts and Trial Proceedings

We summarize the pertinent facts presented at trial to place our analysis of the disputed evidentiary issue in context.

₆₆₁Based on a 9-1-1 call from a concerned citizen, Officer Miguel arrived at the scene where a white SUV was parked. Miguel approached defendant, who matched the caller’s description of the SUV’s driver. Miguel could smell alcohol on defendant’s breath, observed that her eyes were "watery," and noticed that she exhibited mood swings ranging from anger, to crying, to laughing. Defendant told Miguel that she had consumed five beers that evening, that she felt a "little bit tipsy," and that she did not believe that she was safe to drive. However, defendant denied that she had been driving the vehicle.

Miguel then contacted the 9-1-1 caller to confirm that defendant had been driving and proceeded to investigate defendant for DUII. As part of that investigation, Miguel asked defendant to perform two FSTs: the walk-and-turn test and the one-leg-stand test. After observing defendant’s performance on those tests, Miguel arrested defendant for DUII. At the police station, defendant agreed to take a breath test. That test, administered about one hour and 10 minutes after the 9-1-1 call that had started the investigation, indicated that defendant’s blood alcohol content (BAC) was .07 percent.³

At trial, Miguel testified in some detail about the FSTs that she had administered. She first described her training at the police academy, which included a "full course" on "standardized field sobriety tests" that included a "wet lab," where trainees obtain hands-on experience administering the FSTs to individuals who have been drinking. She then described the tests:

"[PROSECUTOR]: What are the purposes of the field sobriety tests?

"MIGUEL: They are divided attention tests. They are designed to determine impairment.

"[PROSECUTOR]: Okay. And what field sobriety tests did you perform on the [d]efendant?

₆₆₂"MIGUEL: We performed the walk-and-turn test and the one-leg stand.

"[PROSECUTOR]: Are those tests used by law enforcement around the country?

"MIGUEL: Yes. Those are standardized tests.

"[PROSECUTOR]: Why are those tests used around the country?

"MIGUEL: Like I said, they are standardized. There have been studies conducted to prove their validity. * * * [I]t’s a national standard, so it’s not just something that I made up or anybody in my department made up. It is a national standardized test. It is conducted the same way, it has the same set of instructions, same set of rules for each person that performs that nationwide."

That testimony was received without objection.⁴ Miguel then described how she administers the tests, the instructions she had given to defendant, and how defendant had performed. Miguel’s bodycam footage, which showed her interview of defendant at the scene and defendant’s performance on the FSTs, was also admitted into evidence and played for the jury.

Defendant testified at trial that her husband had been driving the white SUV immediately before Miguel arrived on the scene. Defendant admitted that she had been drinking earlier that evening and that she had told Miguel at the time that she had not felt safe to drive. In closing argument, defense counsel argued that the jury could find defendant not guilty of DUII either because the state had not proved beyond a reasonable doubt that defendant had been driving the vehicle, or because, even if the jury concluded that defendant had been driving, the state had not proved that defendant had been under the influence of intoxicating liquor. Among other things, defense counsel pointed out that defendant’s BAC of .07 percent when she took the breath ₆₆₃test was below the .08 percent standard, and he suggested that defendant’s poor performance on the FSTs could have been caused by her emotional state or embarrassment, not intoxication.

The jury returned a guilty verdict. Defendant appealed.

B. Appellate Proceedings

Defendant raised two assignments of error on appeal. The Court of Appeals did not consider the first assignment of error because it reversed on the second. Ortiz, 325 Or App at 137, 528 P.3d 795.⁵ In that assignment of error, defendant challenged the trial court’s admission of Miguel’s testimony that the two FSTs she administered were "national[ly] standardized" tests that were "designed to determine impairment" and supported by "studies conducted to prove their validity." Defendant acknowledged that she had not preserved the error by timely objecting to that testimony, but she contended that the trial court had "plainly erred" by receiving that "scientific evidence" without requiring the state to lay a foundation for its admission.

[1, 2] The Court of Appeals agreed with defendant, concluding that the disputed testimony was scientific evidence under OEC 702,⁶ and that the state was required to lay an adequate foundation addressing the factors in State v Brown, 297 Or. 404, 417, 687 P.2d 751 (1984), and State v. O’Key, 321 Or. 285, 299-306, 899 P.2d 663 (1995), before the evidence could be admitted.⁷ Ortiz, 325 Or App at 137-38, 528 P.3d 795. ₆₆₄The court further concluded that, "[b]ecause the state did not attempt to lay an adequate Brown/ O’Key foundation, it would be error for a trial court to admit" the testimony over an appropriate objection. Id. at 138, 528 P.3d 795. But, because defendant had not objected to that testimony at trial, the court turned to "whether it was plain error for the trial court to not recognize the testimony as obviously scientific testimony lacking a foundation and, accordingly, sua sponte exclude its admission into evidence." Id. at 139, 528 P.3d 795.

The court explained that, under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991), plain-error review "involves a two-step inquiry[.]" Ortiz, 325 Or App at 137, 528 P.3d 795. The court must "first determine whether the error is plain, and second, [decide] whether to exercise [its] discretion to consider the error." Id. Under the first step, the court must determine whether the error is (1) one of law, (2) obvious and not reasonably in dispute, and (3) " ‘apparent on the record without requiring the court to choose among competing inferences.’ " Id. (quoting State v. Vanornum, 354 Or. 614, 629, 317 P.3d 889 (2013)). The Court of Appeals concluded that the error in admitting Miguel’s testimony about the FSTs was plain and that the trial court "had a duty to exclude the evidence." Id. at 139, 528 P.3d 795 (citing State v. Beltran-Chavez, 286 Or App 590, 614, 400 P.3d 927 (2017); State v. Eatinger, 298 Or App 630, 448 P.3d 636 (2019); and State v. Reid, 312 Or App 540, 492 P.3d 728 (2021)).

Then, at the second step of the plain-error analysis, the court exercised its discretion to consider the error and reversed the conviction, "as [it had done] in Reid." Ortiz, 325 Or App at 140, 528 P.3d 795. The court explained that, "due to the inherently persuasive effect of scientific evidence and the prosecution’s focus on the FST results in its closing argument," it could not "say that the testimony * * * had little likelihood of affecting the verdict." Id. at 142, 528 P.3d 795. The court also observed that "it is difficult to see how the state could have laid an adequate Brown/O’Key foundation for Miguel to testify as a scientific expert had defense counsel objected to the ₆₆₅evidence." Id. Thus, the court concluded that the error "was not harmless." Id.

Judge Pagán dissented. He "disagree[d] that any error [had] occurred below," and further opined that, "if there was error, it was harmless." Id. at 143, 528 P.3d 795 (Pagán, J.,...