State v. Allen ( 2022 )

277
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted August 17, affirmed December 14, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON FRANK ALLEN,
Defendant-Appellant.
Harney County Circuit Court
19CR82060, 19CR36600;
A174921 (Control), A174922
Lynn W. Hampton, Senior Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, 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 Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
278 State v. Allen
ORTEGA, P. J.
Defendant appeals from judgments of conviction
for driving under the influence of intoxicants (DUII) (Case
No. 19CR82060) and harassment and second-degree crimi-
nal mischief (Case No. 19CR36600). On appeal, defendant
raises four assignments of error. We reject each of those
assignments, as explained below, and affirm.
In his first assignment of error, defendant chal-
lenges the trial court’s refusal to give the less-satisfactory-
evidence instruction, arguing that the results of a blood
test, which can include information about how much of a
drug remains in the person’s bloodstream, would have been
stronger evidence of defendant’s intoxication than the urine
test that was presented at trial. We review the trial court’s
refusal to give the less-satisfactory-evidence instruction
under ORS 10.095 for errors of law, and we consider the evi-
dence in the light most favorable to the party requesting the
instruction to determine whether that evidence supports
giving the requested instruction. State v. Payne, 366 Or 588,
603-07, 468 P3d 445 (2020).
“The less-satisfactory-evidence instruction is to be
given when (1) other evidence was reasonably available on a
fact in issue, and (2) there is a basis for the jury to conclude
that the other evidence is stronger and more satisfactory
than the evidence offered.”1 State v. Palacios-Romero, 320
Or App 563, 566-67, 514 P3d 137 (2022) (internal quotation
marks omitted). We have explained that
“the instruction ‘does not penalize a party for failing to pro-
duce all available evidence,’ but rather, as relevant here,
‘draws the jury’s attention to a party’s failure to produce
evidence when that failure could give rise to an inference that
the evidence would be adverse to the party—that is, when it
appears that the party may be trying to hide something.’ ”
1
Under ORS 10.095, the trial court is to instruct the jury “on all proper occa-
sions” that
“(7) The evidence is to be estimated, not only by its own intrinsic weight,
but also according to the evidence which is in the power of one side to produce
and of the other to contradict; and, therefore,
“(8) That if weaker and less satisfactory evidence is offered when it
appears that stronger and more satisfactory evidence was within the power
of the party, the evidence offered should be viewed with distrust.”
Nonprecedential Memo Op: 323 Or App 277 (2022) 279
Id. at 567 (quoting State v. McNassar, 77 Or App 215, 218,
712 P2d 170, rev den, 300 Or 704 (1986) (emphases in
McNassar)). “Generally, the instruction need not be given
where the other evidence would be merely cumulative.” State
v. McDonnell, 313 Or 478, 503, 837 P2d 941 (1992).
We conclude that the trial court did not err. Even
assuming the state could have taken a blood test from defen-
dant and admitted that evidence at trial, on this record,
there is no nonspeculative basis on which to conclude that
that evidence would have been adverse to the state’s case
or stronger evidence of defendant’s intoxication, rather than
merely cumulative of the other evidence. See, e.g., State v.
West, 289 Or App 415, 419, 410 P3d 382 (2017) (“In this case,
there is nothing in the record that discloses how the video
would be stronger and more satisfactory or could give rise to
an inference that the evidence was adverse to the state.”). At
trial, the state introduced evidence that defendant engaged
in multiple behaviors consistent with being under the influ-
ence of a central nervous stimulant, like methamphetamine,
that his urine tested positive for methamphetamine and
its metabolite amphetamine, and that defendant admitted
to using methamphetamine two or four days before, to not
sleeping for the past two days, that the methamphetamine
was currently affecting his breathing such that he thought
about going to the hospital, and that his “pee is going to
tell the story.” Defendant testified at trial that his behaviors
were explained by his experiencing a schizophrenic episode
and that he was not still high on methamphetamine at the
time of the stop. However, in evaluating the appropriateness
of giving the less-satisfactory-evidence instruction, we are
not limited to comparing the strength of the urine test to
the strength of a hypothetical blood test. We instead look at
the whole of the record to determine whether it supported
giving the instruction. We conclude that, on this record, the
evidence did not support it.
In his second assignment of error, defendant argues
that the trial court erred when it allowed Sergeant Timko,
a certified drug recognition expert or evaluator (DRE) and
former DRE instructor, to testify about “commonly observed
signs of methamphetamine intoxication.” Defendant asserts
that the testimony was scientific testimony for which the
280 State v. Allen
state failed to lay an adequate foundation. On review for
errors of law, State v. Wilson, 266 Or App 286, 292, 337 P3d
948 (2014), we conclude that Timko’s testimony was not sci-
entific. In his testimony, Timko did not describe his train-
ing in detail, did not describe DRE protocols, and did not
suggest that his testimony about “commonly observed signs
of methamphetamine intoxication” was based on a scientific
methodology. See, e.g., State v. Rambo, 250 Or App 186, 195,
279 P3d 361 (2012), rev den, 353 Or 203 (2013) (“Specialized
expert opinion evidence based on a witness’s training and
experience draws its force from that training and experi-
ence, but not necessarily from the mantle of science. * * *
[H]ere, the officer did not * * * rely on the vocabulary of
science, nor did he suggest that his conclusions had been
reached through the application of a scientific method to col-
lected data.”).
In his third and fourth assignments of error, defen-
dant argues that the trial court erred in instructing the
jury that it “must” follow the law and the jury instruc-
tions, because, under Article I, section 16, of the Oregon
Constitution, the jury has the power to disregard the court’s
instructions and find a defendant not guilty. On review for
errors of law, Payne, 366 Or at 603, we conclude that the
trial court did not err. State v. McKenzie, 92 Or App 647, 651,
759 P2d 1123 (1988), rev’d and rem’d on other grounds, 307
Or 554, 771 P2d 264 (1989) (concluding that the defendant
was not entitled to a jury instruction based on Article I, sec-
tion 16, and stating that “[t]hat section is not an affirmative
grant of authority to a defendant to have the jury instructed
that it may determine the law”); State v. Hoffman, 67 Or App
54, 56, 677 P2d 72, rev den, 297 Or 82 (1984) (“Article I,
section 16, merely acknowledges that which is inherent in
all juries—the power to acquit; it is not a grant of authority
to a defendant to ask a jury to exercise that power despite
the applicable law as instructed by the court.”).
Affirmed.