495
Argued and submitted December 15, 2020; convictions on Count 1 and
Count 3 reversed and remanded, remanded for resentencing, otherwise affirmed
September 15, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALYSON RACHEL ANDERSON,
Defendant-Appellant.
Lane County Circuit Court
17CR78852; A171331
498 P3d 843
Defendant appeals a judgment of convictions for driving under the influence
of intoxicants (DUII), ORS 813.010 (Count 1); unlawful possession of methamphetamine, ORS 475.894 (Count 2); and recklessly endangering another person,
ORS 163.195 (Count 3). Defendant was arrested after a traffic stop and taken to
a jail to be evaluated by a drug recognition expert (DRE). The state filed a motion
in limine requesting that testimony concerning the officer’s reputation for truthfulness or untruthfulness be excluded. The court granted the state’s motion,
reasoning that the officer’s reputation that “half” of the officer’s department
believes he is truthful and “half” believe that he is untruthful, is not admissible
reputation evidence, but, rather, “neutral” evidence of the officer’s reputation.
Defendant argues that the trial court erred in granting the state’s motion. The
state concedes that the court erred in excluding that evidence but argues that
the error is nevertheless harmless. Held: The trial court erred when it excluded
reputation evidence because “split reputation” evidence is reputation evidence
that is admissible under OEC 608. The Court of Appeals then concluded that
as to Count 2, the error was harmless. However, as to Counts 1 and 3, the court
concluded that the error was not harmless because the DRE had testified as an
expert on matters that were scientifically based on an issue that went to the
“heart” of defendant’s defense theory.
Convictions on Count 1 and Count 3 reversed and remanded; remanded for
resentencing; otherwise affirmed.
Bradley A. Cascagnette, Judge.
Sara F. Werboff, 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.
Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
496 State v. Anderson
Before DeVore, Presiding Judge, and Egan, Chief Judge,
and DeHoog, Judge.*
EGAN, C. J.
Convictions on Count 1 and Count 3 reversed and
remanded; remanded for resentencing; otherwise affirmed.
______________
* Egan, C. J., vice Mooney, J.
Cite as 314 Or App 495 (2021) 497
EGAN, C. J.
Defendant appeals a judgment of convictions for
driving under the influence of intoxicants (DUII), ORS
813.010 (Count 1); unlawful possession of methamphetamine, ORS 475.894 (Count 2); and recklessly endangering
another person, ORS 163.195 (Count 3). Defendant raises
two assignments of error. We reject defendant’s first assignment without discussion. In defendant’s second assignment
of error, she argues that the trial court erred in granting
the state’s motion in limine when it excluded testimony concerning an officer’s reputation for truthfulness or untruthfulness. The state concedes that the court erred in excluding that evidence but argues that we should nevertheless
affirm because that error is harmless. As explained below,
we agree with the parties that the court erred in excluding
the evidence. We further conclude that the error is harmless
as to Count 2 but not harmless as to Counts 1 and 3; we,
therefore, reverse and remand Counts 1 and 3, remand for
resentencing, and otherwise affirm.
Evidentiary error is not presumed to be harmful,
and we will affirm a defendant’s conviction if there is “little likelihood” that the particular error affected the verdict.
State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003). Although
the trial court relied on a pretrial record in ruling on the
motion in limine, we review all pertinent portions of the
record in determining harmlessness. State v. Goff,
258 Or
App 757, 765,
311 P3d 916 (2013). We summarize the record
in accordance with that standard.
Defendant was driving with her child in the passenger seat when Trooper West stopped her for erratic driving. Soon thereafter, West began a DUII investigation due
to defendant’s driving and her “unusual” behavior. As a part
of that investigation, West requested that defendant consent
to field sobriety tests, which she did. After those tests, West
concluded that defendant was under the influence of intoxicants and requested to search defendant’s car. Defendant
consented and, because defendant’s son was in the passenger seat, West only searched the driver’s side of her vehicle. West found a “residue” amount of drugs in defendant’s
498 State v. Anderson
wallet, which West believed was methamphetamine.1 West
also found cannabis, cannabis concentrate, and cannabis
paraphernalia. At the end of the search, West asked defendant about drug use. Defendant admitted that she had
“smoked some [cannabis] earlier that night.” At the conclusion of her investigation, West believed that defendant was
under the influence of methamphetamine and cannabis and
arrested defendant for DUII.
After defendant was arrested, officers performed a
search of the rest of her car. During that search, officers
found methamphetamine and methamphetamine paraphernalia inside the car. That methamphetamine weighed
approximately one-half gram. After the search, defendant
was transported to jail to be examined by a drug recognition
expert (DRE).
Officer Stone was the DRE who responded to West’s
request for an evaluation of defendant. Stone performed a
standard 12-step DRE evaluation of defendant at the jail.2
1
A later forensic analysis performed by one of the state’s laboratories determined the “residue” to be dimethyltryptamine (DMT), a Schedule I controlled
substance.
2
As set forth in State v. Sampson, 167 Or App 489, 493-95,
6 P3d 543, rev den,
331 Or 361 (2000), the 12 DRE protocol steps described in the National Highway
Traffic Safety Administration publication, “Drug Evaluation and Classification
Training Student Manual, at IV-3 to IV-22 (1993),” are as follows:
“1. A blood alcohol content (BAC) analysis is done. If the subject’s BAC
exceeds 0.08 percent, the DRE protocol ends.
“2. The DRE officer interviews the arresting officer to elicit information
about the subject’s behavioral and physical symptoms.
“3. The DRE officer conducts a preliminary physical examination: he or she
checks the subject’s eyes for synchronization and pupil size, checks the pulse,
and asks general health questions. This step determines whether the subject
is impaired by a medical condition.
“4. The DRE officer conducts four standard eye examinations developed to
detect intoxication: horizontal gaze nystagmus (HGN), vertical gaze nystagmus (VGN), and lack of convergence (LOC).
“5. The DRE officer conducts four field sobriety tests: the Romberg balance
test, the walk and turn test, the one leg stand test, and the finger-to-nose
test.
“6. The DRE officer checks the subject’s pulse, blood pressure, and body
temperature.
“7. The DRE officer measures the subject’s pupil size under three light conditions (near total darkness, indirect light, and direct light), and inspects the
nose and mouth for signs of drug ingestion.
Cite as 314 Or App 495 (2021) 499
At the conclusion of defendant’s evaluation, Stone concluded that defendant was under the influence of cannabis.
Defendant was released from custody and shortly thereafter
charged by information with DUII, unlawful possession of
methamphetamine, and recklessly endangering another
person.
Before trial, the state filed a motion in limine to
exclude certain character evidence regarding Stone. The
court held a hearing on the matter and, for purposes of
determining its admissibility, defendant presented two witnesses’ testimony concerning Stone’s character for truthfulness. The Chief of Police for the City of Springfield, Lewis,
was called first. The colloquy between Lewis and defendant
concerning Stone’s reputation was as follows:
“Q Are you generally aware of Officer Stone’s reputation in the law enforcement community of other law enforcement officers and the command and administrative people
in law enforcement for being truthful or not truthful?
“A Can you start with the first part of the question
there again?
“Q Are you familiar with his reputation in that community for being truthful or not truthful?
“A Yes.
“Q And what is that reputation?
“A The reputation is there’s some individuals that does
not think he’s truthful and there’s others that do think he’s
truthful.”
“8. The DRE officer checks the subject’s muscle tone for extreme flaccidity
or rigidity.
“9. The DRE officer inspects for injection sites.
“10. The DRE officer conducts a focused interrogation and observation of the
subject’s behavior.
“11. Considering the results of all the foregoing procedures, the DRE officer
develops a formal opinion identifying the drug that the subject took.
“12. The DRE officer obtains a urine sample for toxicological testing. The
test is used to corroborate the DRE officer’s opinion and to provide a learning
tool for the officer.”
(Footnotes omitted.) The purpose of DRE protocol evidence is “to make more
probable a fact of consequence—that [the] defendant was under the influence of a
controlled substance.” Id.at 499.
500 State v. Anderson
The state objected to the admission of that testimony by asserting that “the fact that someone’s reputation
is split does not lead to that being a reputation. So if a reputation is mixed, that means he doesn’t have a specific reputation in the community.” In response, defendant argued
that the “case law is less than 100 percent clear” but that
defendant is entitled to present testimony on the matter.
The court agreed with the state and concluded, as to Lewis,
that he
“basically testified that half of his department believes
Officer Stone … is truthful and half of his department
believes Officer Stone is untruthful.
“That strikes me as not a reputation for truthfulness or
for untruthfulness. …
“I don’t think it’s appropriate to bring in [Lewis] to basically give us a neutral reading or interpretation of Officer
Stone’s truthfulness. It’s not necessarily a reputation that
is going to properly impeach Officer Stone.”
Next, Lieutenant McKee testified as to his opinion “that[,] with regard to truthfulness and honesty[,] that
unless [Stone’s] written or spoken word is corroborated by
video or other compelling evidence, I don’t find it to be trustworthy.”3 The state did not object to McKee testifying as to
his opinion of Stone but did object to McKee testifying to
any specific instances that were the basis for his opinion.
The court agreed with the state and concluded that McKee
would be permitted to “testify to his opinion.” The trial
began shortly thereafter. The state’s evidence included testimony by Stone about his examination of defendant and, consistent with the pretrial rulings, defendant called McKee to
impeach Stone’s credibility. The jury found defendant guilty
on all counts. Defendant then initiated this appeal.
On appeal, defendant argues that the trial court
erred in excluding Lewis’s testimony concerning Stone’s reputation. The state concedes that the trial court erred when
it concluded that Lewis’s testimony was inadmissible under
OEC 608, but nevertheless argues that the error was harmless. Because, as defendant notes, we have “not directly
3
McKee testified to the same at trial.
Cite as 314 Or App 495 (2021) 501
addressed” whether “split reputation” is admissible reputation evidence, we discuss that issue below and, ultimately,
agree with the parties that the trial court erred.
“We review a trial court’s exclusion of character testimony under OEC 608(1) for abuse of discretion.” State v.
Paniagua, 268 Or App 284, 289,
341 P3d 906 (2014). “An
abuse of discretion on an evidentiary ruling by a trial court
occurs when the court’s ruling exceeds the range of all
legally correct discretionary choices. In that context, ‘discretion’ refers to the authority of the trial court to choose
among several legally correct outcomes.” State v. Mackey,
290 Or App 272, 275,
414 P3d 443, adh’d to as modified on
recons,
293 Or App 559,
429 P3d 748 (2018).
Defendant argues, and the state agrees, that “split
reputation” evidence is admissible under OEC 608.4 We
agree that split reputation evidence is admissible under
OEC 608, which permits reputation evidence for “truthfulness or untruthfulness.” Each part of Lewis’s testimony—
that “some” find Stone to be truthful and others find him
untruthful—would be separately admissible under OEC
608.5 That Lewis would testify to both does not make it
any less reputation evidence as allowed under the rule. The
4
OEC 608 provides, in part:
“(1) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but:
“(a) The evidence may refer only to character for truthfulness or
untruthfulness[.]”
5
We disagree with the trial court’s characterization of Lewis’s testimony
as “neutral” regarding Stone’s reputation for truthfulness. Rather, Lewis’s testimony was split—he related that “half of his department believe[d] Officer Stone”
is truthful and “half of his department believe[d] Officer Stone is untruthful.”
One does not cancel out the other, rendering the testimony “neutral” on the
subject. Rather, the jury would be able to draw its own conclusion as to Stone’s
credibility from the evidence that Stone’s reputation among some members of
the police department was that he could not be trusted, and among others, that
he was honest. In other words, the fact that his reputation was mixed goes to
the weight of the evidence, not its admissibility. Cf. State v. Miller, 52 Or App
335, 343,
628 P2d 444 (1981) (concluding that the size of the community and the
duration of time that that community had interacted with the defendant were
factors that affected the “weight” of the evidence as it pertains to a defendant’s
reputation, not the evidence’s admissibility). We therefore do not address whether
truly neutral testimony as to a person’s reputation—essentially that the person
has no reputation in the community for either truthfulness or untruthfulness—is
admissible under OEC 608.
502 State v. Anderson
plain text of OEC 608 requires only that the reputation be
for truthfulness or untruthfulness. It does not require that
the reputation be shared by every member of the community to be admissible under OEC 608, and we do not insert
requirements into statutes that have been omitted. See ORS
174.010 (“In the construction of a statute, the office of the
judge is simply to ascertain and declare what is … not to
insert what has been omitted[.]”). Thus, we agree with the
parties that the trial court erred in concluding that “split”
or “mixed” reputation evidence is inadmissible under OEC
608.
Having concluded that the trial court erred, we must
next address whether that error was harmless. “Harmless
error” is a shorthand reference to Article VII (Amended),
section 3, of the Oregon Constitution.6 Davis, 336 Or at
27-28. That standard reduces to “a single inquiry: Is there
little likelihood that the particular error affected the verdict?”
Id. at 32. In conducting a harmless error analysis,
we differentiate among the various charges against a
defendant to determine, with respect to each, whether the
record establishes that any error in admitting or excluding
evidence was harmless. State v. Lachat,
298 Or App 579,
589-90,
448 P3d 670 (2019), rev den,
366 Or 257 (2020) (taking that approach). In determining whether the exclusion of
Lewis’s testimony was harmless, we consider “the nature of
the error that occurred below,” and the “context of the legal
error.” State v. Perkins,
221 Or App 136, 143,
188 P3d 482
(2008). Some of the factors that we rely on in our considerations are whether (1) “the excluded statements were merely
cumulative of admitted evidence”; in other words, whether
the evidence was “qualitatively different than the evidence
that the jury heard” and (2) if “the excluded evidence goes
directly to the heart of defendant’s factual theory of the
case.” State v. Blaylock,
267 Or App 455, 472,
341 P3d 758
(2014), rev den,
357 Or 299 (2015) (internal quotation marks
omitted).
6
Article VII (Amended), section 3, as relevant, provides:
“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such
as should have been rendered in the case, such judgment shall be affirmed,
notwithstanding any error committed during the trial[.]”
Cite as 314 Or App 495 (2021) 503
We begin with Count 2, in which the state charged
defendant with unlawful possession of methamphetamine.
The state argues that as to Count 2, Stone’s “testimony was
irrelevant,” and, thus, that the trial court’s failure to admit
Lewis’s testimony about Stone’s reputation had little likelihood of affecting the verdict. We agree with the state that,
as to Count 2, the error was harmless because Stone did not
testify about defendant’s alleged possession of methamphetamine or the searches of defendant’s vehicle. Rather, the
state relied on the physical evidence found in defendant’s
vehicle and the testimony from the officers who performed
the search and seizure of the suspected methamphetamine,
which was later confirmed to be methamphetamine by the
state’s forensic laboratory. That search occurred before
Stone was involved in the case and there is no allegation at
trial, nor on appeal, that he had handled the physical evidence at issue. Thus, as to Count 2, we conclude that excluding Lewis’s testimony was harmless.
We next address Counts 1 and 3, in which the state
charged defendant with DUII and recklessly endangering
another person.7 In arguing that the omission of Lewis’s
testimony was harmless as to those counts, the state contends that Lewis’s testimony was cumulative of McKee’s testimony. Alternatively, the state argues that, even if Lewis’s
testimony is not cumulative to McKee’s, that the omission
of Lewis’s testimony is nevertheless harmless because any
impeachment effect that Lewis’s testimony would have had
on Stone’s credibility would have been nominal because
Stone’s testimony was cumulative of West’s. We disagree
with the state and conclude that the error is not harmless
as to Counts 1 and 3.
Our harmless error analysis on Counts 1 and 3
begins with addressing whether Lewis’s testimony was cumulative of McKee’s. Defendant argues that Lewis’s testimony
7
The charge of recklessly endangering another person, as relevant here,
substantially relies on whether defendant was driving under the influence of
intoxicants while her child was in the passenger seat of the vehicle. Defendant
does not contest that her young child was in the passenger seat, so the remaining issue for Count 1 and Count 3 is the same—was there little likelihood that
the exclusion of Lewis’s testimony affected the jury’s finding that defendant was
under the influence of intoxicants.
504 State v. Anderson
was “qualitatively different” than McKee’s because Lewis’s
would have permitted the jury to infer “that members of the
police community agreed with McKee’s opinion.” The state
responds that Lewis’s testimony was cumulative because
the jury was “not completely ignorant of [Stone’s] credibility issues.” Specifically, the state argues that McKee’s testimony that “unless [Stone’s] written or spoken word is corroborated by video or other compelling evidence, I don’t find
it to be trustworthy” is qualitatively the same as Lewis’s testimony that “some” individuals find Stone to be trustworthy
and others do not. We disagree with the state that a single
opinion as to a person’s reputation is qualitatively the same
or cumulative of the testimony that the person has a reputation for untruthfulness among a larger subset of the law
enforcement community. Lewis stated that “some” officers
do not “think [Stone’s] truthful,” and that testimony is different from McKee’s testimony that he alone believes Stone
to be untrustworthy. Accordingly, we conclude that Lewis’s
testimony is not cumulative of McKee’s.
We also disagree with the state that the error was
harmless because Stone’s testimony was itself cumulative of
West’s testimony. That is, the state seems to contend that,
because Stone’s testimony regarding defendant’s intoxication was essentially duplicative of West’s testimony regarding her own observations, further impeaching Stone would
have had little tendency to affect the outcome of defendant’s
trial. However, Stone, unlike West, testified as a DRE—an
expert witness providing scientifically based testimony. See
State v. Sampson, 167 Or App 489, 496,
6 P3d 543, rev den,
331 Or 361 (2000) (concluding that evidence from a DRE is
scientific evidence). Moreover, evidence of the full protocol
carries an “aura” of scientific reliability because of “its highly
specialized certification procedure, battery of medicalized
tests, and complicated end-stage analysis.” Id. at 496-97. As
we explained in State v. Aman,
194 Or App 463, 474,
95 P3d
244 (2004), rev dismissed,
339 Or 281 (2005) “[t]he potential for scientifically based evidence to exert influence on a
jury is manifest.” Thus, when evidence that is omitted in
error potentially affects the credibility of a witness that was
presented to the jury as an expert on matters that are scientifically based, it weighs heavily against a determination
Cite as
314 Or App 495 (2021) 505
that an error is harmless. See State v. McFarland,
221 Or
App 567, 578,
191 P3d 754 (2008) (“When the source of erroneously admitted testimony is a witness presented to the
jury as an expert on matters that are scientifically based,
it weighs heavily against a determination that an error is
harmless.”). Stone’s scientifically based expert testimony
thus is qualitatively different than the testimony of West’s,
the arresting officer.
Accordingly, the testimony regarding Stone’s credibility, as an expert testifying on scientific matters, is uniquely
important for the jury. As DRE, Stone performed several
tests and opined based upon his expertise that defendant
was under the influence of an intoxicant. Those tests were
done with only Stone and defendant in the room and could
have easily been manipulated if Stone had decided to do so.
Therefore, Stone’s credibility—whether his tests and opinion are trustworthy—was important to the jury’s consideration of Counts 1 and 3.
As defendant points out, the question of Stone’s
credibility was key to her defense theory on those counts;
thus, the exclusion of Lewis’s testimony, which the jury
could have viewed as questioning that credibility, was also
significant. Defendant’s sole defense as to Counts 1 and 3
was that she was not under the influence of intoxicants.
Stone’s testimony focused solely on defendant being under
the influence of an intoxicant—a direct contradiction of
defendant’s defense theory. See Blaylock, 267 Or App at 472
(concluding that “excluded evidence [that] goes directly to
the heart of defendant’s factual theory” will weigh heavily
against harmlessness). Therefore, Lewis’s testimony, which
bore directly on Stone’s credibility, was, as defendant contends, “critical to [her] defense to attack the outcome of the
DRE” in that it could have supported her defense that she
was not under the influence of an intoxicant. Accordingly,
we reject the state’s argument that the error was harmless
because we conclude that Stone’s testimony was not cumulative of West’s.
In sum, we conclude that the trial court erred in
excluding Lewis’s testimony, and, because that error was
506 State v. Anderson
not harmless as to Counts 1 and 3, we reverse and remand
defendant’s convictions on those counts.
Convictions on Count 1 and Count 3 reversed and
remanded; remanded for resentencing; otherwise affirmed.
