State v. Dodge , 301 Or. App. 1 ( 2019 )

1
Submitted October 10, 2017, affirmed December 4, 2019, petition for review
denied April 23, 2020 (366 Or 382)
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHANE MICHAEL DODGE,
Defendant-Appellant.
Multnomah County Circuit Court
15CR47527; A162454
455 P3d 933
Defendant appeals, challenging his conviction for misdemeanor driving
while under the influence of intoxicants. He contends that the trial court erred in
admitting without redaction a report showing defendant’s blood alcohol content
and in failing to make a record of the court’s exercise of discretion in weighing
the probative value of the evidence against the danger of unfair prejudice under
OEC 403. Held: The court made an adequate record of its exercise of discretion
and any error in admitting the unredacted report was harmless.
Affirmed.
Steven R. Evans, Judge pro tempore.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura E. Coffin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
EGAN, C. J.
Affirmed.
2 State v. Dodge
EGAN, C. J.
Defendant appeals from his conviction of misde-
meanor driving under the influence of intoxicants (DUII),
ORS 813.010, contending that the trial court erred (1) in
admitting without redaction an Intoxilyzer 8000 test report
showing defendant’s blood alcohol content, which he con-
tends caused him unfair prejudice; and (2) in failing to make
a record of the court’s exercise of discretion in weighing the
probative value of the evidence against the danger of unfair
prejudice under OEC 403. We conclude that the court made
an adequate record of its exercise of discretion and that any
error in admitting the report was harmless, and we there-
fore affirm.
Portland Police Officer Piombo stopped defendant for
traffic violations. While conversing with defendant, Piombo
noticed signs of intoxication, including slurred speech, blood-
shot and watery eyes, and an odor of alcohol. Defendant
admitted that he had been drinking and agreed to perform
several field sobriety tests which he was not able to pass.
Defendant agreed to go to the police station with Piombo
to take a breath test. It is not disputed that the equipment,
an Intoxilyzer 8000, was functioning properly and that
the breath test showed that defendant had a blood alcohol
content (BAC) of .06. Based on the Intoxilyzer results and
defendant’s performance of the field sobriety tests, Piombo
cited defendant for DUII.
At trial, the state introduced the printout from the
Intoxilyzer 8000 breath test showing that defendant’s BAC
at the time he took the test was .06 percent. The printout, a
“Breath Test Report,” looked approximately like this:
Test %BAC Status Time
Air Blank 0.000 PASS 22:04 PDT
Diagnostics OK PASS 22:05
Air Blank 0.000 PASS 22:05
Subject Sample 0.074 OBTAINED 22:05
Air Blank 0.000 PASS 22:06
Air Blank 0.000 PASS 22:08
Cite as 301 Or App 1 (2019) 3
Subject Sample 0.066 OBTAINED 22:08
Air Blank 0.000 PASS 22:09
Control Sample 0.084 PASS 22:09
Air Blank 0.000 PASS 22:10
* * EXPECTED VALUE FOR CONTROL: 0.085 % BAC * *
TEST RESULT: 0.06 % BAC
Defendant stipulated to the accuracy of the Intoxilyzer
test but asked the court to “redact” digits other than the
Test Result of .06 percent that he considered to be “extrane-
ous.” Defendant asserted that those numbers, in particular,
the first “Subject Sample,” showing a BAC of .074 percent,
and the “Control Sample,” showing a BAC of .084 percent,
were not relevant and might mislead the jury and confuse
the jury to think that defendant’s BAC was greater than .06
percent. The trial court rejected defendant’s request:
“THE COURT: * * * I don’t see that it’s prejudicial at
all, especially since you can examine the officer, what does
this mean, what does this mean, you can ask him about the
date, you can ask him about anything you want about it.
Let me see the offending document.
“[DEFENSE COUNSEL]: It says there is one sam-
ple that’s a .07 something, and there’s one that’s a .06
something.
“THE COURT: Subject sample .074, then control
sample .084, subject sample .066. I think that would be
more worrisome to redact it than it would just to have it
explained as to what this entails.
“[DEFENSE COUNSEL]: Well, quite frankly, I think
that that is cumulative because all the testimony is going
to be that my client’s test result was a .06. We would stip-
ulate to that. All that’s doing is putting in extra figures in
front of the jury to say, hey, no, he’s really .07 something,
he’s almost .08, so therefore, to sway the jury[.]
“THE COURT: If [the prosecutor] argues that, we can
take up a different issue. I don’t see where he can be pre-
vented from providing proof of the analysis of the blood test
and the results thereof. Your objection is overruled.”
4 State v. Dodge
The court also rejected a request by defendant to redact the
third digit of the breath test sample numbers as insignifi-
cant, explaining:
“There’s nothing prejudicial here. You have not said any-
thing that shows it’s prejudicial or that it is not subject to
your examination and explanation.”
Defendant’s counsel responded that “[t]he fact that some-
thing is subject to my examination doesn’t mean that it isn’t
prejudicial.” The court adhered to its ruling.
The court briefly addressed the jury, and then the
prosecutor gave an opening statement:
“Ladies and gentlemen of the jury, two ways for the State
to meet its burden in this case. The first, show you evi-
dence that a person’s blood alcohol content exceeded .08.
This is not that case. What the evidence is going to show here
is that shortly after the time he was stopped, [defendant’s]
blood alcohol content was .06. The other way the State
can[ ] prove his case is by demonstrating to you beyond a
reasonable doubt that [defendant’s] mental and physical
capacities were adversely affected to a noticeable and per-
ceptible degree. What you’re going to hear is the testimony
of Officer Mark Piombo. He is a traffic officer with the
Portland Police Bureau. What that means is that he spe-
cializes purely in traffic matters, including an extensive
experience with DUIs. He’ll tell you that on the night in
question, he pulled [defendant] over due to some bad driv-
ing and he makes contact with [defendant] and he notices
[what] in his experience is indicia of intoxication, slurred
speech, bloodshot, watery eyes, odor of alcohol, those sorts
of things, and so he administers the field sobriety tests to
[defendant], and he’ll go into great detail about each of the
three tests, what they are, how they are administered and
specifically what [he] is looking for. He’ll testify that [defen-
dant] failed all the tests. Then he takes him back to the
station and he administers the breath test [and] the result
is a .06.”
(Emphases added.) In his opening statement, defense coun-
sel stated: “You will hear testimony that my client’s blood
alcohol level was .06 and that is basically 75 percent of what
the legal limit is, that .08 is the legal limit.” (Emphasis
added.)
Cite as 301 Or App 1 (2019) 5
Officer Piombo then testified that he stopped defen-
dant after a Lidar speed detection device clocked defendant’s
vehicle traveling on Interstate 205 at a speed of 83 and
84 miles per hour in a 55-miles-per-hour zone. Piombo testi-
fied that he then pursued defendant’s vehicle on his motor-
cycle and observed defendant repeatedly change lanes and
tailgate another vehicle. Piombo activated his emergency
lights. Defendant did not immediately pull over but did so
after Piombo activated his siren. Piombo testified that he
observed physical signs of intoxication on defendant and
smelled an odor of alcohol about defendant’s person, com-
ing from his mouth as he spoke. At a close distance, Piombo
observed that defendant’s eyes were watery, pink, and red,
and that his speech was thick and slurred. Defendant agreed
to perform some field sobriety tests, and Piombo adminis-
tered three tests that defendant failed. Defendant admit-
ted that he had consumed alcoholic beverages. Defendant
agreed to Piombo’s request to go to the police station for a
breath test, which, as noted, indicated a blood alcohol level
of .06 percent.
Piombo testified about the Intoxilyzer report of defen-
dant’s BAC. On cross-examination by defense counsel, Piombo
testified:
“[DEFENSE COUNSEL]: Okay. There’s a lot of differ-
ent numbers there, right?
“A. Yes.
“Q. And they are very standard for that Intoxilyzer
machine. I mean, that’s a standard print out?
“A. Correct.
“Q. The only numbers that matter are the two to the
right of the decimal point, correct? I’m sorry, I’m pointing
right there at the test result.
“A. Yeah.
“Q. The test result answer is really all that matters on
that sheet, right? Wait. I’m sorry. Strike that. Back up.
“A. Everything matters.
6 State v. Dodge
“Q. Every number matters. There are several things[ ]
in there where it goes through a test of itself and all that to
make sure it’s working right.
“A. Yes sir.
“Q. At the result that we get, the .06, we only go to two
decimal points, right?
“A. Yes.
“Q. And that’s the only significant digits there are.
There is no third significant digit or anything of that
nature?
“A. Correct.
“Q. Okay. So his test result is a .06.
“A. Correct.
“* * * * *
“Q. Now, there are two samples taken of my client’s
blood; is that correct, of his breath? [1]
“A. Yes, sir.
“Q. And there’s a slight difference in them, right?
“A. Yes, there is.
“Q. But the correct operation of that machine means
that you take the one that is the .06; is that correct? [2]
“A. If it underlines the test result.
“Q. And there is a difference between the two results
there?
“A. Yes.
1
OAR 257-030-0105(1) provides that “[t]wo valid breath samples, provided
within a single testing sequence and culminating in a printed report with a com-
pleted test result shall constitute a ‘Chemical Test’ of a person’s breath.”
2
Under OAR 257-030-0140,
“[a]greement between two valid breath samples within a testing sequence
is established when the subject sample measurements agree within plus or
minus ten percent of their mean, inclusive of the upper and lower bounds of
the range. If the instrument establishes agreement, the lower breath sample
measurement shall be truncated to two decimal places and reported as the
chemical test result. If the subject sample measurements do not agree, the
instrument will abort the testing sequence and display ‘Sample Correlation
Failure.’ ”
Cite as 301 Or App 1 (2019) 7
“Q. And [they’re] taken, what three minutes apart?
“A. No, less than that.
“Q. Right. So taken very close together in time, right?
“A. Yes.
“Q. And yet you’re never going to get exactly the same
result twice in a row, are you, or very rarely will you get the
exactly the same results?
“A. That’s correct.
“Q. So the machine result which we have * * * to be
accurate is .06, right?
“A. Yes, sir.
“Q. So those other digits and everything else are
not significant for the result itself, only to show that the
machine is working properly.
“A. That is correct.”
In closing argument, the prosecutor led off:
“As I told you in my opening, this is a case where the State’s
evidence is that the blood-alcohol level is below .06 and that
therefore in order to prove our case, we’d have to establish
beyond a reasonable doubt that [defendant’s] mental or
physical faculties were impaired to a noticeable and per-
ceptible degree.”
In his closing argument, defendant’s counsel stated,
“The hard evidence that we have is that my client’s breath
alcohol, blood-alcohol level was .06. They probably still lose
because the one objective piece of evidence is my client was
below the legal limit.”
The court instructed the jury:
“If you find beyond a reasonable doubt that the amount
of alcohol in [defendant’s] blood at the time [defendant]
was driving a vehicle was equal to or greater than .08 per-
cent by weight of alcohol as shown by chemical analysis of
[defendant’s] breath or blood, this constitutes being under
the influence of an intoxicant. If you find that the amount
of alcohol in [defendant’s] blood at the time [defendant] was
driving the vehicle was less than .08 percent by weight of
alcohol as shown by a chemical analysis of [defendant’s]
8 State v. Dodge
breath or blood, then you may consider this with any other
evidence in the case to determine if [defendant] was under
the influence of an intoxicant.
“It is up to you to determine what weight you will give
to breath test evidence. You are not required to accept
such evidence. You should give the breath test evidence
such weight as you feel is appropriate in reaching your
verdict.”
The jury reached a verdict of guilty on the DUII
charge, and defendant appeals from the judgment of con-
viction, assigning error to the trial court’s admission of the
unredacted breath test report showing samples other than
the result of .06 percent BAC. He does not contend on appeal
that the evidence was irrelevant. Instead, he contends that
the record does not show that the trial court weighed the
probative value of the evidence against the danger of unfair
prejudice, as required by OEC 403.3 He further argues that
the unredacted breath samples were misleading, because
they invited the jury to infer that defendant’s BAC was
higher than .06 percent.
Defendant’s objection below was that the report in
its unredacted form would not be helpful to the jury, would
be cumulative, would be confusing, and might be mislead-
ing. We agree with defendant that those objections were
within OEC 403 and required the court to address whether
the probative value of the evidence is outweighed by the dan-
ger of unfair prejudice. The court responded that it would
be “more worrisome to redact than it would be just to have it
explained as to what this entails.” In denying the request for
redaction, the trial court explained, “There’s nothing preju-
dicial here. You have not said anything that shows that it’s
prejudicial or that it is not subject to your examination and
explanation.” Defendant’s counsel responded, “The fact that
something is subject to my examination doesn’t mean that it
isn’t prejudicial.”
3
OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence.”
Cite as 301 Or App 1 (2019) 9
On appeal, defendant relies on State v. Mayfield, 302
Or 631, 645, 733 P2d 438 (1987), to contend that the trial
court erred in failing to make a record to reflect its exercise
of discretion in weighing the probative value of the evidence
against the danger of unfair prejudice.4 We reject the con-
tention. In State v. Anderson, 363 Or 392, 406, 423 P3d 43
(2018), decided after the parties submitted their briefs, the
Supreme Court said:
“[T]his court has not held that a trial court must recite
on the record how it evaluated the probative and prej-
udicial value of evidence and how it balanced the two.
Rather, as [State v. Turnidge (S059155), 359 Or 364,
374 P3d 853 (2016),] demonstrates, a court will make
a sufficient record under Mayfield if the trial court’s
ruling, considered in light of the parties’ arguments,
demonstrates that the court balanced the appropriate
considerations.”
Thus, a trial court need not explicitly describe its process of
evaluating and balancing the probative value and danger of
prejudice. The record need only demonstrate that it did so.
As the quoted colloquy above reflects, the trial court
here identified the probative value of the challenged portions
of the BAC report as the state’s “proof of the analysis of the
blood test and the results thereof.” And the trial court heard
defendant’s concerns about confusing the jury and twice
stated that defense counsel could address those concerns by
inquiring of the witness during testimony. The court then
concluded that the challenged portions of the BAC report
were not prejudicial, and defendant did not raise any issue
at trial concerning the sufficiency of the court’s explanation
of its ruling. See Anderson, 363 Or at 410 (“[T]he absence of
a request for further explanation was a factor that bore on
the sufficiency of the explanation that the trial court pro-
vided.”). In those circumstances, we conclude that the court
did not need to further address its weighing of the probative
4
The state contends that defendant’s arguments are not preserved. Although
defendant did not specifically request that the court evaluate the evidence under
OEC 403, we agree with defendant that his objections were the types that are
within OEC 403 and that would implicitly require the court to engage in OEC
403 balancing.
10 State v. Dodge
value of the evidence and the danger of unfair prejudice,
and that the trial court’s ruling, in light of the parties’ argu-
ments and the record, sufficiently reflects that the court bal-
anced the appropriate considerations.
We conclude, further, that the trial court’s failure
to redact the report, even if error, was harmless. The pros-
ecutor and defense counsel each separately described the
breath test report as showing a breath test result of .06 per-
cent. Piombo testified that defendant’s BAC was .06 percent.
On cross-examination, Piombo explained the significance of
the other numbers on the report by agreeing with defense
counsel’s statement that the “test result is a .06” and that
the other numbers were on the report only to show that the
machine was working properly. In light of that testimony,
any possible error in failing to redact the numbers from the
report had little likelihood of affecting the jury’s verdict.
State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
Affirmed.