State v. Dickens ( 2023 )

194
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted March 9; conviction on Count 2 reversed and remanded,
remanded for resentencing, otherwise affirmed April 5, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL RAYMOND DICKENS,
aka Daniel Raymon Dickens,
Defendant-Appellant.
Washington County Circuit Court
19CR75606; A176100
Erik M. Buchér, Judge.
Francis C. Gieringer, 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.
Erica L. 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 Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Conviction on Count 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 325 Or App 194 (2023) 195
EGAN, J.
Defendant appeals a judgment of conviction for one
count of unlawful possession of methamphetamine, ORS
475.894(2)(a) (Count 1), and one count of driving under the
influence of intoxicants (DUII), ORS 813.010 (Count 2). On
appeal, he challenges only his conviction for DUII. In his first
assignment of error, he contends that the trial court erred
when it ruled that the state’s drug recognition expert (DRE),
Deputy Majors, could testify that “defendant appeared to be
on the ‘downside of meth,’ ” and he contends that that error
was not harmless. We agree with defendant. We reverse and
remand defendant’s conviction for DUII, remand for resen-
tencing, and otherwise affirm.1
We review a determination that evidence is “scien-
tific” and, if so, whether it is admissible, for legal error. State
v. Eatinger, 298 Or App 630, 642, 448 P3d 636 (2019).
As an initial matter, we agree with both defen-
dant and the state that Majors’s testimony that defendant
appeared to be on the downside of methamphetamine was sci-
entific evidence. Therefore, to be admissible, it was required
to meet the Brown/O’Key foundational requirements. See
Eatinger, 298 Or App at 642 (noting scientific evidence is
subject to the “Brown/O’Key foundational requirements”).
Further, we agree with defendant that the state did
not lay a sufficient foundation under Brown/O’Key for the
trial court to admit Majors’s “downside of meth” testimony.
We have previously “approved the 12-step DRE protocol as
scientific evidence because its complete administration by
a competent examiner qualified for admission as scientific
evidence,” but the admissibility of “the complete DRE pro-
tocol as scientific evidence does not demonstrate the gen-
eral admissibility of each component of the protocol.” State
v. Bevan, 235 Or App 533, 542, 233 P3d 819 (2010) (emphasis
in original; internal quotation marks omitted). In this case,
the “scientific” evidence presented regarding the “downside
of meth” came not as a result of the complete administration
1
In a second assignment of error, defendant contends that the trial court
erred “when it excluded defendant’s proposed exhibit 101.” Our resolution of
defendant’s first assignment of error obviates the need to address defendant’s
second assignment of error.
196 State v. Dickens
of the 12-step DRE protocol, but from observations Majors
made during certain component pieces of that protocol. And
the state presented no evidence that the methodology uti-
lized to draw conclusions from such observations “generally
has been accepted in the relevant field, has been used in
a reported judicial decision, has a known rate of error, is
mentioned in specialized literature, or is not a novel, even
singular, employment in this state.” State v. Aman, 194 Or
App 463, 472-73, 95 P3d 244 (2004), rev dismissed, 339 Or
281 (2005) (concluding trial court erred in admitting result
of “11 step DRE test without toxicological confirmation” as
scientific evidence).
To be sure, the state may be correct that “noth-
ing in the DRE protocol prohibits an officer from forming a
less-than-conclusive opinion in addition to the officer’s for-
mal DRE conclusions”; however, that does not mean that an
officer’s “less-than-conclusive opinion” concerning impair-
ment can be presented to the jury in a manner that draws
its persuasive force from the mantle of science.
Notwithstanding that evidentiary error, “we must
affirm if the error was harmless.” Eatinger, 298 Or App at
645. “An error is harmless if there is little likelihood that
the erroneously admitted evidence affected the verdict.” Id.
We agree with defendant that the error was not
harmless. The erroneously admitted evidence was scientific
in nature, Bevan, 235 Or App at 543 (noting “scientific evi-
dence has a manifest potential to influence the jury” and,
therefore, “erroneous admission of such evidence weighs
against a conclusion that an error was harmless”), and the
state highlighted the erroneously admitted scientific evi-
dence during its opening statement and closing argument,
id. at 544 (prosecutor emphasizing erroneously admitted evi-
dence in opening statement and closing argument weighed
against a determination error was harmless). Further,
during its closing argument, the state argued to the jury,
in essence, that it could convict defendant even if it did not
credit Majors’s testimony concerning cannabis impairment
but instead found defendant was impaired by only metham-
phetamine while driving, and tied Majors’s scientific testi-
mony regarding the downside of methamphetamine to other
Nonprecedential Memo Op: 325 Or App 194 (2023) 197
evidence in the case concerning methamphetamine. See
State v. Zielinski, 321 Or App 8, 13, 515 P3d 397, rev den,
370 Or 694 (2022) (in assessing harmlessness “we consider
the importance of the erroneously admitted evidence to a
party’s theory of the case” (internal quotation marks omit-
ted)). Additionally, the other evidence that defendant was
impaired while driving was not “so overwhelming” that we
can conclude that there is little likelihood that the errone-
ously admitted scientific evidence affected the verdict. State
v. Johnson, 219 Or App 200, 206, 182 P3d 256 (2008); see
also Aman, 194 Or App at 474 (erroneously admitted scien-
tific evidence resulting from incomplete DRE protocol not
harmless, notwithstanding other evidence of impairment
while driving). Consequently, we reverse and remand defen-
dant’s conviction on Count 2.
Conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.