State v. Basham , 301 Or. App. 498 ( 2019 )

498
Argued and submitted July 31, 2018; conviction on Count 2 reversed and
remanded, otherwise affirmed December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
MATTHEW COREY BASHAM,
Defendant-Appellant.
Yamhill County Circuit Court
14CR10143; A162939
456 P3d 658
Defendant appeals from a judgment of conviction for driving under the influ-
ence of intoxicants, contending that the trial court erred in providing a Miles jury
instruction. Held: The trial court erred. The record contained no evidence tying
defendant’s prior injuries and tiredness to an increased susceptibility to the
effects of an intoxicating substance. Giving the Miles instruction in the absence
of such evidence was likely to mislead the jury and was, therefore, reversible
error.
Conviction on Count 2 reversed and remanded; otherwise affirmed.
Cynthia L. Easterday, Judge.
Mark J. Kimbrell, Deputy Public Defender, argued the
cause for appellant. On the briefs were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Sara F.
Werboff, Deputy Public Defender, Office of Public Defense
Services.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.*
MOONEY, J.
Conviction on Count 2 reversed and remanded; otherwise
affirmed.
______________
* Mooney, J., vice Garrett, J. pro tempore.
Cite as 301 Or App 498 (2019) 499
MOONEY, J.
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants (DUII),1 rais-
ing four assignments of error. We reject his second, third,
and fourth assignments without discussion and write only
on the first assignment in which defendant contends that
the trial court erred in providing a Miles2 jury instruction.
We agree that the record was void of evidence to support
that instruction and therefore reverse and remand for a new
trial.
We review jury instructions for errors of law. State
v. Pierce, 235 Or App 372, 374, 232 P3d 978 (2010). “In deter-
mining whether an instructional error requires reversal, we
assess potential prejudice by considering the jury instruc-
tions as a whole.” Id. “[A]n instruction is appropriate if it
correctly states the law and is supported by evidence in the
record, when the evidence is viewed in the light most favor-
able to the party requesting the instruction,” in this case the
state. State v. Ashkins, 357 Or 642, 648, 357 P3d 490 (2015).
We state the facts consistently with that standard.
On the evening of June 7, 2014, a civilian reported
that he observed defendant driving abnormally. Officer
Elliott responded to the report and pulled defendant over
for speeding. When Elliott contacted defendant, he asked
for defendant’s driver’s license, registration, and proof of
insurance. While speaking with defendant, Elliott noticed
that defendant’s pupils were “very constricted,” he had “vis-
ible open sores” on his arm, and his movements were “slow
and kind of deliberate.” Elliott believed that defendant was
under the influence and requested that he perform field
sobriety tests (FST). Defendant agreed and performed the
horizontal gaze nystagmus test (HGN), the walk-and-turn
test, and the one-leg-stand test. Defendant did not exhibit
any “clues” of intoxication on the HGN test or the one-leg-
stand test. On the walk-and-turn test, however, defendant
exhibited seven of eight clues of intoxication. Based on his
observations of defendant and defendant’s performance
1
Defendant was also convicted of possession of a controlled substance.
2
See State v. Miles, 8 Or App 189, 492 P2d 497 (1972); UCrJI 2708.
500 State v. Basham
during the FSTs, Elliot believed that defendant “was under
the influence of an intoxicant and that he was impaired.”
During the stop, Elliot also discovered that defendant was
wearing a Fentanyl patch and that there were prescription
pill bottles for hydrocodone-acetaminophen and oxycodone-
acetaminophen in his car. Elliott arrested defendant and
took him to the police station, where Detective McMullen
performed a drug recognition expert (DRE) evaluation.
McMullen ultimately concluded that defendant was “too
impaired to operate a vehicle.”
A urine test showed the presence of methamphet-
amine and its metabolite, amphetamine; hydrocodone and
its metabolite, dihydrocodeine; gabapentin; and methocar-
bamol. Edgardo Basaca, a forensic scientist with the Oregon
State Police Forensic Laboratory, testified that gabapen-
tin and methocarbamol are central nervous system (CNS)
depressants, methamphetamine is a CNS stimulant, and
hydrocodone, and its metabolite dihydrocodeine, are nar-
cotic analgesics.
After the state rested, defendant testified that he
was injured in a car accident in 2004, which affected his
ability to walk and balance, that he had only slept “for a
couple of hours” the night before he was arrested, and that
he “just didn’t feel right” when he woke up. He worked that
day and, on his way home, he felt tired and thought about
stopping to sleep, but ultimately chose not to stop.
At the close of evidence, the trial court informed
the parties that it would provide Uniform Criminal Jury
Instruction 2708, also known as a Miles instruction, which
provides:
“If you find from the evidence that [defendant] was in
such a physical condition that he was more susceptible to
the influence of intoxicants than he would otherwise be,
and as a result of being in that physical condition [defen-
dant] became under the influence by a lesser quantity of
intoxicants than it would otherwise take, [defendant] is
nevertheless under the influence of intoxicants.”
Defendant objected, arguing that, although defen-
dant had a physical condition that made him, in certain cir-
cumstances, look like he may be more affected, defendant
Cite as 301 Or App 498 (2019) 501
was not actually more affected. “[T]here was no testimony
by any of the witnesses that said that any of these drugs
that we’re talking about in this trial would cause him to be
more susceptible to being affected by the drug because of
his physical condition.” The state responded that the “phys-
ical condition that the defendant had was his prior injuries
from the crash in 2004, and also the fact that he * * * was
very tired, had been up all night and then worked all day;
so he did have a condition that would have made him more
susceptible.” The trial court overruled defendant’s objection
and provided the jury instruction. The jury ultimately found
defendant guilty.
Defendant appeals, contending that the trial court
erroneously provided the Miles instruction. For a Miles
instruction to be proper,
“ ‘there must be evidence that [the defendant’s physical con-
dition] made [the] defendant more susceptible to the effects
of alcohol than he otherwise would have been[.]’ State v.
Huck, 100 Or App 193, 197, 785 P2d 785 (1990) (so holding
with respect to the defendant’s use of Vicodin, a controlled
substance); see also State v. Gibbs, 193 Or App 296, 297, 89
P3d 1215 (2004) (‘Giving a Miles instruction in the absence
of [evidence that the defendant’s physical condition, head
trauma, made him more susceptible to the influence of
alcohol] is reversible error.’); State v. Curtis, 182 Or App
166, 169-70, 47 P3d 929, rev den, 335 Or 104 (2002) (same
where the defendant’s physical condition was fatigue); State
v. Roller, 181 Or App 542, 546, 47 P3d 52 (2002) (reversing
where trial court gave Miles instruction because ‘[t]here is
a complete lack of evidence that suffering from the flu made
[the] defendant more susceptible to the effects of alcohol’).”
State v. Massey, 249 Or App 689, 692, 278 P3d 130 (2012),
rev den, 353 Or 203 (2013) (alterations in original).
Defendant agrees that the record shows that defen-
dant was tired, had physical ailments, and took medica-
tion to treat those ailments. Defendant argues, however,
that “there is no evidence in the record to support an infer-
ence that the foregoing physical conditions made defendant
more susceptible to the effects of intoxicants. The evidence
shows only that the physical conditions existed.” The state
responds that there was such evidence and specifically
502 State v. Basham
argues that “the evidence showed that defendant had
ingested controlled substances from two different drug
categories—narcotic analgesics and CNS stimulants,” and
that defendant’s expert “testified that being on the down side
of methamphetamine intoxication can enhance the effects
of the narcotic analgesic.” Therefore, according to the state,
“one theory that the jury was entitled to consider, was the
possibility that defendant was experiencing the down side of
methamphetamine intoxication at the time of driving, which
enhanced, or had an additive effect when combined with the
narcotic analgesics” in defendant’s system. To support that
argument, the state points to the following colloquy between
defense counsel and a defense expert, Meneely:
“[Defense Counsel]: Okay. We were talking about
methamphetamine, the crash. The crash is actually the
result of the methamphetamine no longer affecting the
person, isn’t it? Their body’s like going, whoa, because they
were more active?
“[Meneely]: That’s probably more difficult to answer,
because it does cause some level of sedation, and if you
relate that to an effect, it is an effect; but associated with
that is very unique clinical symptoms: the constricted
pupils, the below-normal blood pressure, below-normal
body—not body temperature, but blood pressure as well.
“[Defense Counsel]: So if somebody’s crashing from
methamphetamine they’re going to have a lower blood
pressure and a lower what?
“[Meneely]: Pulse.
“[Defense Counsel]: Pulse. So if somebody’s crashing
from methamphetamine, it looks more like an analgesic,
right?
“[Meneely]: Correct.
“[Defense Counsel]: So it’s not offsetting the effects of
narcotic analgesic if they’re crashing; it’s actually enhanc-
ing the effects?
“[Meneely]: Well, theoretically it could.”
Defendant responds that the state advances a new
argument for the first time on appeal, that defendant’s with-
drawal from methamphetamine is the physical condition
Cite as 301 Or App 498 (2019) 503
that increased his susceptibility to narcotics, rather than
defendant’s prior injuries and tiredness. We agree that the
state’s argument on appeal is qualitatively different from
the one it advanced below. In its closing argument, the state
referred to Meneely’s testimony as it discussed the vari-
ous controlled substances involved in the case, and it even
mentioned the signs and symptoms of methamphetamine
“on the upswing” and “when a person is crashing.” But the
state’s argument was that the jury should infer from the
presence of several controlled substances that defendant
was impaired by at least one of them. The state did not
argue, as it does now, that defendant was more susceptible
to the effects of the narcotics because he was “crashing” off
methamphetamines.
Looking to the physical conditions advanced before
the trial court—defendant’s prior injuries and tiredness—
the record contains no evidence tying those conditions to an
increased susceptibility to the effects of an intoxicating sub-
stance. Giving the Miles instruction in the absence of such
evidence was likely to mislead the jury and is, therefore,
reversible error.
Conviction on Count 2 reversed and remanded;
otherwise affirmed.