State v. Johnson

                                 66

          Submitted April 24, 2020, affirmed October 6, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                ELI WILLIAM JOHNSON,
                   Defendant-Appellant.
              Deschutes County Circuit Court
                   17CR20427; A167735
                            

  Beth M. Bagley, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2021)                               67

        PER CURIAM

         Defendant appeals a judgment of conviction for,
among other offenses, driving under the influence of intoxicants, ORS 813.010. He contends that the trial court erred in
denying his pretrial motion in limine that sought to exclude
the state’s toxicology report (showing that defendant’s blood
samples tested positive for methadone, amphetamines, and
methamphetamine) and the testimony of the laboratory
supervisor who signed the report. In defendant’s view, that
evidence would, if used at trial, violate his confrontation
rights under the Sixth Amendment to the United States
Constitution. That is because, according to defendant, it
was the laboratory bench chemists—not the supervisor—
who handled and tested defendant’s blood samples, and the
Confrontation Clause does not permit the admission of a
scientific report if its authors do not appear and face crossexamination at trial.

         Before defendant’s trial began, the trial court and
the parties discussed the motion in limine. The state gave
its view of the cases on which defendant relied to support
his confrontation-rights argument and the role of the bench
chemists and supervisor with regard to the toxicology
report’s results. The trial court denied defendant’s motion,
saying that, given that the state had a different view of
what the bench chemists did in the course of preparing the
toxicology report, it would not exclude the supervisor’s testimony or the toxicology report at that time. The court said
that any objections defendant had about confrontation rights
could be raised during the course of the lab supervisor’s testimony. During trial, when the lab supervisor did testify,
defendant did not make any objections to the supervisor’s
testimony on the basis that she was not the report’s author
and that his inability to confront the actual author of the
report violated his rights under the Confrontation Clause.
We conclude that, when the record developed enough to provide the factual basis for the court to rule on defendant’s
confrontation-rights argument, defendant needed to object
to the lab supervisor’s testimony and the toxicology report
at that time to preserve the claim that he now raises on
68                                         State v. Johnson

appeal. ORAP 5.45(1). We therefore do not consider his claim
of error on appeal and affirm.
        Affirmed.