State v. Whitehorn ( 2024 )

No. 534 July 31, 2024 167
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
GREGORY THOMAS WHITEHORN,
aka Gregory Thomas Whitethorn,
Defendant-Appellant.
Marion County Circuit Court
21CR55287; A179935
Audrey J. Broyles, Judge.
Argued and submitted June 17, 2024.
Emma McDermott, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services/Oregon Public Defense Commission.
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General,
and Joanna L. Jenkins, Assistant Attorney General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
JOYCE, J.
Affirmed.
168 State v. Whitehorn
JOYCE, J.
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants (DUII). He
raises two assignments of error. We affirm.
Motion to suppress: In defendant’s first assignment
of error, he challenges the denial of his motion to suppress.
He argues that one of the two officers involved in his arrest,
Sergeant Meeks, lacked reasonable suspicion to expand the
traffic stop into an investigation for DUII. In response, the
state argues that while defendant moved to suppress on
the basis that the second officer, Officer Reynolds, lacked
reasonable suspicion to expand the stop, defendant never
argued that Meeks lacked reasonable suspicion, and thus
his argument on appeal is unpreserved. We agree that
defendant’s argument regarding Meeks is not preserved. As
to the preserved part of defendant’s argument on appeal,
we review for evidence sufficient to support the trial court’s
implicit and explicit findings of fact and for legal error. State
v. Campbell, 289 Or App 442, 444, 410 P3d 1041 (2017).
Two days before trial, defendant filed a motion to
suppress. That motion did not specify any particular the-
ory of suppression; rather, the motion broadly asserted that
defendant had been “unlawfully stopped, seized, detained,
and searched without a warrant.” The trial court denied the
motion as untimely (a ruling that defendant does not chal-
lenge on appeal). The trial began and Reynolds and Meeks
both testified. Reynolds stopped defendant because he was
driving erratically. He believed that defendant’s passenger
was intoxicated but did not initially believe that defendant
was. As he was processing a citation for defendant, Meeks
arrived at the scene. As Reynolds was working on the cita-
tion, Meeks went to speak with the passenger, who was hold-
ing his hands out the window in an exaggerated fashion.
Meeks told the passenger that he did not have to keep hold-
ing his hands out the window. He asked the passenger how
his night was going, at which point defendant interjected
and said that they were going to Taco Bell. Meeks then went
around the car and talked to defendant. He noticed that
defendant had glassy eyes and a “thick tongue” (both signs
of impairment) and he could smell alcohol, although he could
Nonprecedential Memo Op: 334 Or App 167 (2024) 169
not tell whether the smell was coming from defendant or the
passenger.
Meeks then went back to Reynolds and shared his
observations. According to Reynolds, when there are multi-
ple officers at a scene, it is “very common” for them to speak
to one another to “further the investigation.” Reynolds then
spoke with defendant and noticed several signs of impair-
ment. At that point, he believed that he had reasonable
suspicion that defendant was driving while impaired and
had defendant perform field sobriety tests. He subsequently
arrested defendant for DUII.
After Meeks and Reynolds testified, defendant
renewed his motion to suppress. He explained that “at this
point,” his motion would rely on State v. Arreola-Botello, 365
Or 695, 451 P3d 939 (2019), which he described as stand-
ing for the proposition that there are “temporal and subject
matter limitations on an officer when they’ve stopped some-
body.” In light of that case, defendant argued that he was
“unlawfully seized at the point when the DUI investigation
began. * * * Officer Reynolds did not have reasonable sus-
picion to continue with that DUI investigation.” Defendant
elaborated that “the officer did not have a subjective belief
at the time he began the DUI investigation in order to
extend the stop. So our contention is that it’s an unlawful
extension.”
In response, the state argued that Reynolds, after
learning from Meeks that he had observed defendant’s
glassy eyes, went and observed defendant again and “at that
point, he ha[d] subjective belief.” Reynolds then started the
investigation and, in the state’s view, “he ha[d] reasonable
suspicion to start that investigation.”
The trial court denied the motion to suppress. It
concluded:
“This was reasonably related. He went back, he talked
to the officer. That’s common, he said, in investigations. He
can go back. He didn’t keep him there for any extended,
protracted period of time, but it was still in the course of
* * * the investigation. I don’t find that that was unreason-
able delay.”
170 State v. Whitehorn
As noted, defendant on appeal contends that Meeks
unlawfully expanded the scope of the traffic stop by con-
tacting defendant after talking with Reynolds. See Arreola-
Botello, 365 Or at 712 (officers investigating a traffic vio-
lation cannot engage in “investigative activities, including
investigative inquiries” that are unrelated to that infrac-
tion, unless those activities have an “independent constitu-
tional justification,” such as reasonable suspicion of another
crime). That argument is unpreserved. Below, defendant
framed his argument in terms of whether Reynolds had rea-
sonable suspicion to investigate DUII, not whether Meeks
had reasonable suspicion to do so. Accordingly, that is the
argument that the state responded to and that the court
ruled on. Defendant points to his argument at trial that
“the officer did not have a subjective belief at the time he
began” the investigation, and in his view “the officer” refers
to Meeks. He also argues that the court understood as much
because its ruling speaks in terms of “he” and that “he” ref-
erences Meeks. Defendant highlights the court’s remark,
“He went back, he talked to the officer. That’s common, he
said, in investigations.”
We appreciate that the repeated references by both
defendant and the court to “he” and “him,” without specify-
ing which officer was the subject, complicates the question
whether defendant preserved his claim of error. But in look-
ing at the context in which those arguments and rulings
were made, it is apparent that defendant and the court were
referring to Reynolds, not Meeks. Reynolds is the officer who
testified that it is common for one officer to talk to another
during the course of the investigation; thus, the court’s ref-
erence to that testimony and that officer is necessarily a
reference to Reynolds. As to defendant’s first point—that
in referring to the officer “beginning” the investigation, he
was referring to Meeks and not Reynolds—Reynolds testi-
fied to his initiation of a DUII investigation and, in light
of defendant’s argument that “Officer Reynolds” lacked rea-
sonable suspicion, we do not believe that defendant’s argu-
ment apprised the state or the court of the argument that
he now makes on appeal. See State v. Parkins, 346 Or 333,
341, 211 P3d 262 (2009) (“Ultimately, the preservation rule
is a practical one, and close calls * * * inevitably will turn
Nonprecedential Memo Op: 334 Or App 167 (2024) 171
on whether, given the particular record of a case, the court
concludes that the policies underlying the rule have been
sufficiently served.”).
Alternatively, defendant maintains that Reynolds
did not have reasonable suspicion of DUII. That argument
was preserved below. We conclude that the evidence that
Reynolds relied on—erratic driving, physical symptoms
consistent with impairment, and an odor of alcohol—made
his subjective belief that defendant was driving while intox-
icated objectively reasonable. The trial court did not err in
denying the motion to suppress.
Challenge to testimony about field sobriety tests: In
his second assignment of error, defendant argues that the
trial court plainly erred by not excluding Reynolds’s testi-
mony about field sobriety tests. In particular, he challenges
Reynolds’s testimony that based on his training and expe-
rience, (1) a particular result on the horizontal gaze nys-
tagmus (HGN) test indicates that “an alcoholic substance is
psychoactive in the person’s mind”; (2) that three of the field
sobriety tests that he administered are “generally accepted
method[s] nationwide” for determining whether a person is
impaired; (3) a particular number of clues on the walk-and-
turn test indicates impairment; and (4) the tests stand inde-
pendently of one another and an officer only needs clues on
one test to arrest a person for DUII.
In so arguing, defendant relies on cases in which
we have concluded that it was plain error for the trial court
to admit “scientific” testimony that the field sobriety tests
are pass/fail, absent a proper foundation, because the jury
would perceive that testimony as suggesting that the tests
are able to measure impairment objectively, and that a spe-
cific numerical score can prove that the subject is impaired.
See State v. Beltran-Chavez, 286 Or App 590, 614, 400 P3d
927 (2017) (testimony that the defendant passed or failed the
walk-and-turn and one-leg stand tests, when viewed in the
context of testimony about standardized tests, would have
led jury to believe that the tests had been scientifically cal-
ibrated to detect impairment); see also State v. Ortiz, 325
Or App 134, 138-39, 528 P3d 795, rev allowed, 371 Or 308(2023) (testimony that field sobriety tests are “designed to
172 State v. Whitehorn
determine impairment,” nationally “standardized,” and sup-
ported by studies that “prov[e] their validity” was scientific
evidence whose admission, absent a proper foundation, con-
stituted plain error). The state, in contrast, argues that we
should not review his claim because defendant may have
had a tactical reason for not objecting.
Even assuming that allowing Reynolds’s testimony
was a plain error, we decline to exercise our discretion to
correct it. On this record, it is plausible that defendant
chose not to object because he intended to use the National
Highway Traffic Safety Administration manuals to try to
establish that Reynolds improperly administered the field
sobriety tests, a line of questioning that presupposed the
existence of a nationwide standard practice that officers
are to follow. State v. Mello, 332 Or App 215, 223, 549 P3d
42 (2024) (declining to exercise discretion to review sim-
ilar claim of error where it was “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”). Defendant also used in closing
argument Reynolds’s testimony that he had initially erred
in instructing defendant on how to perform the walk-and-
turn test and the fact that Reynolds only observed one clue
on another test. Because the evidence was arguably helpful
to defendant, counsel may have decided not to object to its
admission so that he could rely on it, and, consequently, we
decline to correct any error in admitting it.
Affirmed.