State v. Mello ( 2024 )

No. 262 April 24, 2024 215
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
FATHYM EILEEN MELLO,
nka Fathym Eileen Walker,
Defendant-Appellant.
Douglas County Circuit Court
20CR55302; A179615
George William Ambrosini, Judge.
Argued and submitted February 7, 2024.
Carla Edmondson, 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.
Erica 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 Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
JOYCE, J.
Affirmed.
216 State v. Mello
Cite as 332 Or App 215 (2024) 217
JOYCE, J.
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants (DUII), ORS
813.010 (Count 1), and reckless driving, ORS 811.140 (Count 2).
Defendant raises three assignments of error. In her first and
second assignments of error, defendant argues that the trial
court plainly erred in failing to strike certain testimony by
the arresting officer about field sobriety tests (FSTs) that, in
defendant’s view, was scientific evidence for which the state
did not lay an adequate foundation. In defendant’s third
assignment of error, she argues that the trial court erred in
denying her motion for a mistrial. Defendant contends that
the prosecutor misstated the burden of proof during closing
argument and that the curative instruction that the trial
court issued was insufficient to preserve defendant’s right to
a fair trial. For the reasons that follow, we affirm.
Officer’s testimony about the FSTs: In defendant’s
first and second assignments of error, she argues that the
trial court plainly erred in failing to strike an officer’s testi-
mony about two field sobriety tests that, in defendant’s view,
was scientific and thus inadmissible because the state did
not lay an adequate foundation. As we explain below, we
agree with defendant that under our recent decision in State
v. Ortiz, 325 Or App 134, 528 P3d 795, rev allowed, 371 Or
308 (2023), the asserted legal error is plain. However, we
decline to exercise our discretion to correct the error.
In reviewing a trial court’s evidentiary ruling, “we
do so in light of the record that was before the court at the
time of the ruling.” State v. Eatinger, 298 Or App 630, 632,
448 P3d 636 (2019). We consider all pertinent parts of the
record in evaluating whether the erroneous admission of
evidence was harmless. Id.We begin by describing the facts leading up to
defendant’s arrest, which we take from testimony presented
at trial. An off-duty state trooper, Stone, was a passenger in
a car traveling on a state highway when he noticed defen-
dant’s car going 45 miles per hour where people typically
drive “anywhere from 55 to 75 or 80.” Stone observed defen-
dant’s car, which was in the slow lane, drift about two to
218 State v. Mello
three feet into the fast lane. The driver in Stone’s car tried
to pass defendant, and defendant swerved into their lane
and almost struck them. Stone believed it was not safe to
pass defendant’s car because she was “driving like a pinball
between the dotted line and the striped line and the solid
white line.” Stone called dispatch to report defendant’s driv-
ing. Stone followed defendant’s car for seven to eight miles,
observing defendant swerving, coming close to the guardrail
several times, driving at inconsistent speeds, almost hitting
a curb and then overcorrecting, and making turns without
using a turn signal. Stone did not observe any distractions
to explain defendant’s driving, such as an overhead dome
light on, animals or other people in the car, or that defen-
dant was using a cellphone. Stone has conducted roughly 80
DUII investigations and testified that he rated defendant’s
driving as in the “[t]op five to ten percent, conservatively,
worst driving that [he has] observed in this job.”
Stone relayed his observations over the phone to
another officer, Ellis. Ellis pulled up behind defendant’s car
and observed that defendant failed to stay within her lane.
Ellis initiated a traffic stop. Defendant drove into a park-
ing lot and “parked fine.” Ellis approached defendant’s car
and saw her in the driver’s side with a small dog in the cab
with her. Defendant appeared to be emotional and had “red,
watery, and bloodshot eyes.” Ellis noticed “a strong odor of
an alcoholic beverage coming from within the vehicle.” Ellis
asked defendant how much she had had to drink, and she
said she had had two or two and a half beers, the last one
being over three hours earlier.
Defendant explained that she was bringing her
ex-boyfriend’s French Bulldog, Chunk, back to him. Ellis
asked if there was any reason the dog would cause her bad
driving, and defendant said, “No. Because I was actually
dealing with the dog and that was * * * my bad. That was
my bad.” Ellis asked defendant if she would consent to field
sobriety tests (FSTs), and she said yes.
After defendant consented to the FSTs and stepped
out of the car, Ellis asked if she was “sick or injured.”
Defendant said she had had surgery the previous week on
her mouth and was on pain medications and antibiotics.
Cite as 332 Or App 215 (2024) 219
Ellis asked if she had balance problems, and she said she
has scoliosis.
Ellis testified that he administered four FSTs to
defendant, including the horizontal gaze nystagmus (HGN)
test, the vertical gaze nystagmus (VGN) test, the walk-and-
turn test, and the one-leg-stand test. Ellis observed six out
of six clues indicating impairment on the HGN test, and
also observed vertical nystagmus when he administered the
VGN test on defendant. Ellis observed six out of eight clues
on the walk-and-turn test, and three out of four clues on
the one-leg-stand test, the results of both tests indicating
impairment.
After defendant had performed the FSTs, Ellis
asked her to rate her intoxication level on a scale of one
to ten, and she said three. Ellis asked her if she thought
she could have performed better on the FSTs if she had not
been drinking and she said “oh, hands down.” Ellis arrested
defendant for DUII.1
Ellis testified in detail about the FSTs, including
how he administers them, the training he had received
about the tests, and how defendant performed on them.
Ellis testified that when he administered the walk-and-
turn test, he observed several clues indicating impairment,
including stepping out of the instruction position; stepping
offline; pausing during the test and asking questions; miss-
ing heel to toe; taking an incorrect number of steps down
the line; and making an incorrect turn by “shuffling her
feet.” Ellis testified that “the walk and turn took abnormally
long to get through the instructions because [defendant] just
kept kind of talking, rambling, and asking [him] to repeat
things.” During the one-leg-stand test Ellis observed defen-
dant sway, put her foot down, and raise her arms—all clues
indicating impairment.
In testifying about the HGN test, Ellis said that he
“learn[ed] that there’s been studies done to prove how accu-
rate [the test] can be. And the HGN test, * * * there’s six
possible clues. If, if we see four clues we know that that’s
1
Ellis administered a breathalyzer test to measure defendant’s blood alcohol
content. Before trial, defendant moved to suppress the results of that test, and the
court granted the motion. That motion to suppress is not at issue in this appeal.
220 State v. Mello
a very high percentage, in fact, 88 percent that they’ll be
an impaired driver. Four of six.” Ellis also testified that “if
someone has vertical nystagmus it’s considered to be a high
level of intoxication for that person.” The prosecutor then
asked Ellis, “And you said there’s studies. What’s the study
that you’re * * * referencing there?” Ellis responded, “I’m ref-
erencing the San Diego study.”
During closing argument, the prosecutor discussed
defendant’s “[n]ine miles of continuous terrible driving,” her
physical signs of impairment, her poor performance on the
walk-and-turn and one-leg-stand tests, and her statements
to Ellis. The prosecutor also said that the “HGN test is sci-
entific evidence. It is scientific evidence of impairment. * * *
[T]here have been studies about this. * * * Six out of six plus
VGN is an indication that this person is probably impaired.”
He went on to state that “[t]he HGN is a fabulous test. It’s
used nationwide * * *. It’s scientific and it’s an excellent way
for our officers to test for impairment.”
Defendant argued that there were “alternate expla-
nations” for her driving, including that she was emotional
and that Chunk “had been all over the cab of the car.”
Defendant also argued that she performed poorly on the
FSTs because she has scoliosis, had recently had surgery,
and that she was cold and wearing flip flops. Defendant
also argued that the FSTs were not administered properly,
stating during closing argument that they “were not done
scientifically.”
The jury found defendant guilty of one count of
DUII and one count of reckless driving.
As noted above, defendant on appeal contends that
Ellis’s testimony about the HGN and the VGN was scientific
such that it required the state to lay a foundation under the
Brown/O’Key factors. State v. Brown, 297 Or 404, 687 P2d
751 (1984); State v. O’Key, 321 Or 285, 899 P2d 663 (1995).
We agree with defendant that under Ortiz, the trial court
committed plain error by allowing Ellis’s testimony about
the HGN and VGN tests because that testimony “derive[d]
its force from scientific principles.” 325 Or App at 139. Ellis
Cite as 332 Or App 215 (2024) 221
testified that four out of six clues on the HGN test indi-
cates “88 percent that they’ll be an impaired driver,” and
that “there’s been studies done to prove how accurate” the
HGN test can be. He also referenced “the San Diego study”
after stating that vertical nystagmus indicates “a high level
of intoxication for that person.” That testimony was func-
tionally similar to the testimony in Ortiz, where the officer
testified that “the FSTs are ‘designed to determine impair-
ment,’ nationally ‘standardized,’ and supported by studies
‘prov[ing] their validity.’ ” Id. at 136 (brackets in original).
Thus, because the state did not lay a foundation as required
by Brown and O’Key, the trial court plainly erred in failing to
strike Ellis’s testimony. Id. at 139 (“[A] trial court has a sua
sponte duty to exclude clearly scientific testimony regarding
FSTs when it is presented without a proper foundation.”).
We further conclude that, because the testimony
directly related to the central factual issue in the case and
scientific testimony is particularly persuasive, the error in
permitting the relevant testimony was not harmless. State
v. Whitmore, 257 Or App 664, 672, 307 P3d 552 (2013) (erro-
neously admitted evidence that relates to a central factual
issue is more likely to have affected the jury’s determina-
tion); Eatinger, 298 Or App at 646 (erroneous admission of
scientifically based testimony weighs against a determina-
tion that an error was harmless because scientific testimony
“has manifest potential to influence a jury”).
Here, the central factual issue was whether defen-
dant was “under the influence of an intoxicant,” and because
evidence of defendant’s BAC had been suppressed, the state
was required to prove that she had been impaired to a per-
ceptible degree while driving. ORS 813.010(1)(b)2; Eatinger,
298 Or App at 646. Defendant’s performance on the FSTs and
Ellis’s testimony about the FSTs bore directly on whether
defendant was intoxicated. Further, as explained above,
the testimony was particularly persuasive. Accordingly, we
cannot conclude that such testimony had little likelihood of
affecting the verdict.
2
ORS 813.010 was amended in 2023. See Or Laws 2023, ch 498, § 3. However,
because those amendments do not affect our analysis, we cite the current version
in this opinion.
222 State v. Mello
Having concluded that the trial court’s failure to sua
sponte strike the pertinent testimony was not legally “harm-
less,” we must next determine whether we will exercise our
discretion to correct the error. State v. Inman, 275 Or App
920, 936, 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (“[T]
he harmless-error analysis does not govern our discretion-
ary decision about whether to address unpreserved claims
of error.”). In exercising our discretion, we consider factors
such as the gravity of the error, “the nature of the case,” and
the ends of justice in the particular case. Id. at 928 (citing
Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823
P2d 956 (1991)).
The likelihood that an error affected the verdict
goes to its gravity and to the ends of justice, and “our assess-
ment of where [the error] falls on the spectrum of ‘likelihood’
of having affected the verdict can be an important consid-
eration to the exercise of discretion.” State v. Horton, 327
Or App 256, 264, 535 P3d 338 (2023). In defendant’s view,
the persuasiveness of scientific testimony and the fact that
the prosecutor highlighted the scientific nature of the HGN
and VGN tests during closing arguments warrants the exer-
cise of our discretion. However, in contrast to cases where
we have exercised our discretion to correct a plain error, the
likelihood that the error affected the verdict here is low. In
Ortiz, for example, the officer only administered the walk-
and-turn and the one-leg-stand FSTs, and she bolstered her
testimony about both of those FSTs with testimony that we
concluded was scientific in nature. 325 Or App at 136, 138.
Similarly, in State v. Reid, 312 Or App 540, 543-44, 492 P3d
728 (2021), the arresting officer, referring generally to all of
the FSTs, testified that they were pass or fail—testimony
that we concluded was scientific.
In contrast, here Ellis administered the HGN,
VGN, walk-and-turn, and one-leg-stand FSTs, and Ellis’s
scientific testimony narrowly applied only to the HGN and
VGN tests. The testimony was thus not as broad as that
in Ortiz and Reid. Moreover, we agree with the state that
the additional evidence of defendant’s impairment in this
case, particularly Stone’s observations of defendant’s poor
driving for nearly nine miles, further distinguishes it from
Cite as 332 Or App 215 (2024) 223
Ortiz and Reid. Ortiz, 325 Or App at 135 (officer arrived
on scene after neighbor reported she heard a car “screech”
to a stop in a driveway); Reid, 312 Or App at 541 (officer
stopped the defendant for driving 15 miles over the speed
limit). Consequently, because there was additional evidence
of defendant’s impairment and, as discussed above, some of
Ellis’s testimony about the FSTs was permissible, the error
here was not as grave as in cases where we have exercised
our discretion to correct the error. See Inman, 275 Or App
at 933-34 (whether the record includes additional evidence
of a defendant’s guilt is a factor that we have considered in
declining to exercise our discretion to correct plain error).
Further, defendant argued during closing argument
that the FSTs “were not done scientifically,” which supports
the state’s contention that defendant may have had a stra-
tegic reason for failing to object to the scientific testimony.
See State v. Fults, 343 Or 515, 523, 173 P3d 822 (2007) (“the
possibility that defendant made a strategic choice not to
object” is a factor that we may consider in deciding whether
to exercise our discretion to correct a plain error). If defen-
dant herself characterized the administration of the FSTs
as being scientific, it is reasonable to infer that defendant
had a strategic reason for not objecting during the officer’s
testimony describing how he administered the FSTs and
instead allowing the scientific testimony but then arguing
that the tests were not administered in accordance with
strict requirements.
Additionally, had defendant objected to Ellis’s testi-
mony, the trial court could have easily corrected any error
by striking the testimony and instructing the jury to disre-
gard it. Inman, 275 Or App at 935 (“[T]he ease with which
any error could have been avoided or corrected should be a
significant factor in an appellate court’s decision whether to
exercise its discretion to correct a plain, but unpreserved,
error.”).
In short, the error here was not particularly grave
in terms of its likelihood of affecting the verdict, defen-
dant may have failed to object for a strategic reason, and
the error could have been easily avoided if defendant had
objected. Accordingly, consistent with the policy that we
224 State v. Mello
should exercise “utmost caution” in addressing unpreserved
claims of error, we decline to exercise our discretion to cor-
rect the error. Ailes, 312 Or at 382 (exercising discretion to
address an unpreserved claim of error “is contrary to the
strong policies requiring preservation and raising of error”).
Motion for a mistrial: During closing arguments,
the prosecutor made the following statements: “Nine miles
of continuous terrible driving. That’s a noticeable or percep-
tible degree [of impairment]. Red and watery eyes. There
could be other explanations but under the totality of the cir-
cumstances that could be a sign.” The prosecutor also told
the jury, “[Y]ou’re the ones who get to decide what’s reason-
able. * * *. What is reasonable here based on the totality of
these circumstances?” Defendant objected, arguing that the
prosecutor misstated the law to the jury and that it was
grounds for a mistrial. The court denied the motion for a
mistrial but told the jury “I want to admonish you that the
prosecutor’s statements about what is reasonable, that’s not
the standard in this case. The standard and the burden
of proof carried by the State is proof beyond a reasonable
doubt.” After closing arguments, the court read the jury
instructions to the jury, including an instruction on proof
beyond a reasonable doubt.
Defendant assigns error to the trial court’s denial of
her motion for a mistrial, arguing that the court’s curative
instruction was insufficient to ensure that the jury under-
stood the state’s burden of proof. We review the trial court’s
ruling for abuse of discretion, State v. Worth, 231 Or App 69,
74, 218 P3d 166 (2009), rev den, 347 Or 718 (2010), and affirm.
We disagree that the prosecutor’s statements were
so prejudicial that the trial court’s curative instruction was
insufficient to preserve defendant’s right to a fair trial. In
our view, the curative instruction that the trial court issued
was sufficient to cure any prejudice to defendant. See State v.
Chitwood, 370 Or 305, 311, 518 P3d 903 (2022) (“Generally,
a proper jury instruction is adequate to cure any presumed
prejudice from a prosecutor’s misconduct.”).
Unlike in Chitwood, the prosecutor here did not
directly refer to and misstate the standard of reasonable
Cite as 332 Or App 215 (2024) 225
doubt. As the state points out, the prosecutor made the state-
ments in the context of rebutting defendant’s argument that
there were alternate explanations for defendant’s driving,
physical signs of impairment, and performance on the FSTs.
Framed slightly differently, the prosecutor did not make the
statements in the context of discussing the state’s burden
of proving the elements of the offense beyond a reasonable
doubt, nor did the prosecutor “appeal[ ] to the jurors’ moral
sensibility about an irrelevant circumstance.” Chitwood, 370
Or at 317. Moreover, the trial court instructed the jury on
the reasonable doubt standard after closing arguments. See
id. at 317-18 (explaining that people tend to be influenced
most by the last event in a sequence, and “the timing of the
prosecutor’s remark about the burden of proof exacerbated
the risk that it would be prejudicial [because] it was the last
thing that the jury heard before beginning deliberations”).
Accordingly, the trial court did not abuse its discretion in
denying defendant’s motion for a mistrial.
Affirmed.