State v. Banks

                                       381

       Argued and submitted September 9, 2021, reversed and remanded
                              March 16, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   RONALD WILLIAM BANKS,
                      Defendant-Appellant.
                   Umatilla County Circuit Court
                      19CR35114; A172569
                                   

     Defendant appeals his conviction for driving under the influence of intoxicants. He assigns error to the trial court’s exclusion of lay witness testimony
offered to rebut allegations about defendant’s behavior at the scene of an accident. The state primarily contends that any error in excluding the testimony
was harmless, arguing that the testimony was otherwise inadmissible as lay
witness testimony because defendant’s offer of proof failed to establish that such
testimony would be “helpful” to the jury, as required by OEC 701. Held: The trial
court erred in excluding the disputed testimony on the basis that it was scientific
evidence under OEC 702. Further, under OEC 701, that lay witness testimony
could have been helpful to the understanding of a fact in issue—defendant’s level
of intoxication—and the trial court’s error was therefore not harmless.
    Reversed and remanded.



    Christopher R. Brauer, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.*
    DeVORE, S. J.
    Reversed and remanded.
______________
   * Pagán, J., vice DeHoog, J. pro tempore.
382                                                     State v. Banks

          DeVORE, S. J.
         Defendant appeals his conviction for driving under
the influence of intoxicants (DUII), ORS 813.010.1 He assigns
error to the trial court’s exclusion of lay witness testimony
offered to rebut allegations about defendant’s behavior at
the scene of an accident. We agree that the trial court erred
in concluding that the proffered evidence was scientific in
nature under OEC 702. Because the error was not harmless,
we reverse.
         When we review a trial court’s evidentiary ruling,
we do so in light of the record before the court at the time of
that ruling. State v. Eatinger, 

, 632, 

 (2019). When evaluating whether the exclusion of that
evidence was harmless, we consider all pertinent parts of
the record. 

 The dispositive facts—for the limited purpose
of this appeal—are undisputed.
         In July 2018, Pendleton police officers were dispatched to the scene of a hit-and-run accident that damaged a parked car and trailer. When Sergeant Reddington
arrived, defendant and other people stood near the damaged
car. Reddington spoke with defendant. Defendant first told
Reddington that he had seen the crash through his rearview mirror while driving by. Defendant told Reddington
that the suspect was driving a “Dodge Cummins diesel
pickup towing a trailer.” Reddington noticed that defendant’s answers were inconsistent, his speech was thick and
slurred, and he was unsteady on his feet. When asked more,
defendant told Reddington that he himself had been driving
a “Dodge Cummins.” Defendant asked to return to his car
to get water because his mouth was dry. Reddington accompanied defendant on the walk to defendant’s parked Dodge
Cummins diesel truck and attached trailer. Reddington
observed damage to the truck that he suspected had resulted
from the accident.
        Defendant then acknowledged that he had been
involved in the crash but said that he had not been drinking.

    1
      Since defendant was charged, ORS 813.010 has been amended; however,
because those amendments do not affect our analysis, we refer to the current
version of the statute.
Cite as 

 (2022)                               383

He told Reddington that he had taken an aspirin, heart
medication, cyclobenzaprine, and gabapentin that morning,
but denied taking any narcotics that day. When asked if he
had ever suffered a head injury, defendant told Reddington
that he had been in some bad car accidents. Defendant
added that he had balance problems and “wobbled here
and there” but did not know why. During the conversation,
Reddington noticed that defendant continuously yawned;
when asked about that, defendant attributed the yawning
to getting only a few hours of sleep. Reddington also noticed
that defendant’s pupils appeared to be dilated and that his
eyes did not react much to immediate light.
         Defendant agreed to take a field sobriety test, which
was recorded through Reddington’s dash cam. Defendant
did not exhibit horizontal gaze nystagmus (HGN), or involuntary jerking of the eyes, but he exhibited five out of eight
possible clues for intoxication during a walk-and-turn test
and two out of four possible clues on a one-leg stand test,
and he measured time too quickly on a passage-of-time test.
Based on that performance and his conversation with defendant, Reddington arrested defendant for DUII. At the police
station, a breathalyzer test showed that defendant had a
blood alcohol content of 0.00, indicating that he had no alcohol in his system. A drug recognition expert (DRE) tested
defendant and determined that he was under the influence
of a narcotic analgesic and a depressant. Defendant’s urine
sample later tested positive for two controlled substances:
hydrocodone (known as Vicodin) and zolpidem (known as
Ambien).
          Prior to trial, the state filed a motion in limine that
sought to exclude the testimony of defendant’s lay witnesses,
i.e., his wife and children, that defendant had experienced
syncopal episodes—a medical condition characterized by a
loss of muscle control and consciousness. The state objected
that such testimony “is a scientific assertion that must be
established through an expert.” At the pretrial hearing,
the state argued exclusively that the testimony should
be excluded because lay witnesses cannot testify about a
medical diagnosis of “synaptic [sic] episodes.” Defendant
responded that he was not offering any scientific evidence,
but just the personal observations of his wife and children
384                                                            State v. Banks

that “they have observed him act in this particular manner in the past, and then he’s indicated afterwards no recollection of what occurred during [the episodes.]” Defendant
stressed that the witnesses would not “offer any medical
diagnosis” or “use any big, fancy words” but would “simply
tell the jury what they personally have observed in the past
regarding [defendant] and his behavior” and compare that
to defendant’s behavior that they observed when watching the dash cam footage. Based on those arguments, the
trial court granted the state’s motion in limine and “relie[d]
on and adopt[ed] as well taken the state’s … arguments,
points, authorities, and logic, as expressed in its motion
….” The state did not offer other objections, and the trial
court did not offer any other basis for its ruling.2
        The next day, defendant made an offer of proof to
preserve for appeal what the lay witnesses’ testimony would
have been if allowed. That offer consisted of testimony from
defendant’s wife, who testified that, in the 17 years the
couple had resided together, she had observed him having
“episodes where he is awake and acting and doing stuff, but
later has no recollection of what occurred[.]” She testified
that those episodes had happened three or four times over
the years, that the episodes mirrored the behavior of defendant in the video of his field sobriety test, and that, during
those episodes, he “wasn’t normal.” When asked whether, to
her personal knowledge, defendant had “been working with
his doctor to determine the origin and cause” of the incidents, defendant’s wife answered “yes.”
         At trial, the state presented evidence from a toxicologist, who confirmed that defendant’s urine had tested
positive for hydrocodone and zolpidem but allowed that
those tests did not confirm the amount of those substances
in defendant’s system or when he took them. The toxicologist testified that those drugs could be detected from one to

    2
      Defendant was discouraged from clarifying that ruling at the hearing
because, after attempting to ascertain the specific topics to which lay witnesses
could testify, the trial court cautioned defendant’s counsel to not “parse” the
court’s ruling and that
    “[i]f you violate the order of the court, and you’re parsing this information
    and this order, I will hold you personally accountable and responsible, and if
    I have to declare a mistrial, you will be responsible for the cost of the trial.”
Cite as 

 (2022)                                                385

three days after use, while only affecting the user for four to
eight hours.
         Defendant presented Trace Schreiner, a former
police officer and DRE instructor, as an expert witness.
Schreiner testified regarding the symptoms he would expect
a suspect to display if under the effect of depressants and
narcotic analgesics, including nystagmus, a normal body
temperature, and a slower pulse. In his closing argument,
defendant used Schreiner’s testimony to argue that defendant did not display symptoms that a person under the
influence of the alleged medications would have displayed.
Therefore, defendant argued, he was not impaired by a controlled substance, that he was “tired and impaired by a lack
of sleep,” and that his performance on some field sobriety
tests was impaired by previous injuries.
        On appeal, defendant argues that the trial court
erred in excluding, as impermissible scientific evidence
under OEC 702, the lay witness testimony regarding defendant’s past episodes of memory loss and behavior similar to
that he exhibited during the field sobriety test.3 Defendant
argues that that error was not harmless because the state
relied on defendant’s physical symptoms to argue that he
was under the influence of narcotics.
         The state does not pursue on appeal its objection
below—that the contested evidence was impermissible scientific evidence. Instead, the state makes two belated arguments. For the first time on appeal, the state argues that
the disputed testimony was inadmissible as lay witness
testimony because defendant’s offer of proof failed to establish that such testimony would be “helpful” to the jury, as
required by OEC 701. That rule provides:
       “If the witness is not testifying as an expert, testimony
   of the witness in the form of opinions or inference is limited
   to those opinions or inference which are:

   3
     As provided by OEC 702,
   “[i]f scientific, technical or other specialized knowledge will assist the trier
   of fact to understand the evidence or to determine a fact in issue, a witness
   qualified as an expert by knowledge, skill, experience, training or education
   may testify thereto in the form of an opinion or otherwise.”
386                                              State v. Banks

      “(1)   Rationally based on the perception of the witness;
   and
      “(2) Helpful to a clear understanding of testimony of
   the witness or the determination of a fact in issue.”
OEC 701. Specifically, the state argues that defendant’s wife
did not testify whether defendant’s past behavior occurred
after he had taken his prescription medication, and, as a
result, her testimony was “unhelpful” because, absent comparative background on those earlier episodes, her testimony
was “irrelevant to the purpose for which it was offered.”
         Alternatively, the state argues that the offer of
proof was imperfect. See State v. Tiner, 

, 

 (2006), cert den, 

 (2007) (when a single offer of proof contains both admissible and inadmissible evidence, it is not error to reject the entire offer). The
state argues that the disputed testimony included the statement of defendant’s wife that defendant had sought medical
attention as a result of the episodes of odd behavior. The
state suggests that the testimony may have been hearsay
because the testimony purportedly did not specify whether
defendant’s wife had personal knowledge about her husband
seeking medical attention. The state reasons that, because
the disputed testimony may be at least partially flawed, any
error in excluding part of the testimony as impermissible
scientific evidence is not error.
        We review the trial court’s exclusion of lay witness
testimony for errors of law. State v. Barnes, 

, 

 (2006).
         As an initial matter, we conclude that the trial
court erred in excluding the disputed testimony on the basis
that it was scientific evidence under OEC 702. The Oregon
Supreme Court has explained that evidence is “scientific”
so as to require a foundational showing of scientific validity under OEC 702 when it (1) is expressly presented to the
jury as scientifically grounded; (2) draws its convincing force
from some principle of science; or (3) implies a grounding
in the methods and procedures of science and would therefore likely be perceived by the jury as imbued with the persuasive appeal of science. State v. Henley, 

,
Cite as 

 (2022)                                               387

 (2018). In determining whether evidence is
scientific, Oregon courts have considered the content of a
witness’s testimony, the manner in which the witness is presented to the factfinder, and the relationship between the
witness’s conclusions and the witness’s expertise. Brenner
v. Nooth, 

, 

, rev den, 

 (2017).
          As noted, the state does not defend the trial court’s
ruling that the testimony of defendant’s family should have
been considered “scientific” evidence under that standard.
Considering the record at the time of the trial court’s decision, defendant was not presenting the witnesses to testify
about a specific diagnosis or the scientific principles underlying a diagnosis of a specific condition. Where a witness
is testifying, not from the perspective of a physician who
diagnosed a patient, but from the perspective of an observer
describing a person’s appearance exclusively in terms of
their own experience with the person, that testimony is not
scientific. State v. Davis, 

, 

 (2011);
State v. Evensen, 

, 

, rev den,

 (2019). For that reason, the trial court erred in
determining that the family’s proposed testimony was “scientific” evidence within the meaning of OEC 702. That conclusion brings us to the state’s belated objections about lay
witness testimony and the offer of proof.
         We decline to engage with the state’s argument that
defendant’s wife’s testimony would not be “helpful to a clear
understanding of testimony or the determination of a fact
in issue” within the meaning of OEC 701.4 The state did not
urge that objection in the trial court, and the trial court did
not consider that objection on its own motion. The trial court
excluded the testimony on the erroneous basis that the testimony was impermissible scientific testimony. On appeal, the
state does not explicitly argue that the trial court was “right
for the wrong reason,” and it does not attempt to show on
appeal the prerequisites for applying that rationale to sustain the court’s decision. See Outdoor Media Dimensions Inc.
v. State of Oregon, 

, 

 (2001)

    4
      We will return to the issue of “helpfulness” albeit indirectly when we reach
the final question of harmless error.
388                                                        State v. Banks

(explaining the right for wrong reason rationale for affirmance). It is the state’s burden to establish that the requirements for affirmance on an alternative basis are satisfied.
State v. Carter, 

, 

 (2021).
The state has not done so.5 Therefore, we do not consider the
state’s belated objection to lay witness testimony disputing
its helpfulness under OEC 701. See 

 (declining to consider
“right for the wrong reason” where state has not attempted
to satisfy its burden).
        For the same reason, we also reject the state’s
belated objection that defendant’s wife’s testimony is inadmissible because “[i]t is not clear” from the record whether
she had personal knowledge of defendant’s efforts to seek
medical care or if that knowledge derived from hearsay
statements by defendant. In any event, the record, in fact,
indicates that defendant’s wife testified that she knew of
defendant’s efforts to seek medical care based upon her
“personal knowledge.”
         The state also argues—essentially for the same
reason it presents as an alternative basis for affirming the
trial court’s ruling—that any error in excluding the testimony of defendant’s wife was harmless. Evidentiary error
is not presumed prejudicial and does not require reversal if
it is harmless—that is, if it had little likelihood of affecting
the verdict. Henley, 

. In determining whether
a defendant has shown that the error affected a substantial right, we will consider, among other things, whether
the evidence was cumulative, how the case was tried, and
the extent to which the disputed evidence was or was not
emphasized by the parties and central to their theories of
the case. Carter, 

. We do not, however, take
on the role of factfinder to reweigh evidence or determine if
a defendant is guilty. 

 We decide whether a trial court’s
error was harmless in light of all pertinent portions of the
record. 

     5
       One of those requirements is that the record would not have developed
differently below if the state had raised the issue. Outdoor Media Dimensions,
Inc., 

. It is unlikely that the state could have satisfied that
requirement because, had the issue been raised, defendant’s witnesses could
have offered more background on the other syncopal episodes they had
witnessed.
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 (2022)                               389

         Generally speaking, OEC 701 provides a liberal
standard for the admissibility of lay witness testimony.
State v. Davis, 

, 

 (2011). In this
situation, the rule allows for a lay witness to testify to opinions and inferences that are (1) rationally based on the perception of the witness and (2) helpful to the determination of
a fact in issue. OEC 701. The state does not dispute the first
requirement. As to the second requirement, lay witness testimony has been characterized as helpful where it provided
the jury with information that it would not otherwise have
had, where it provided a basis for the defendant to impeach
the state’s expert witness, and where it provided evidence
from which a jury could infer the defendant’s mental state
or level of intoxication. State v. Tucker, 

,

 (1993) (Unis, J., concurring); State v. Clark,

, 

 (1979); Barnes, 

.

         Viewing the record as a whole, we recognize that
defendant’s wife’s testimony could have helped the jury in
each of those ways. Defendant was offering his wife’s testimony to support his theory that he was not under the influence of the alleged medications at the time of his field sobriety
tests. Such testimony could have offered a different perspective on defendant’s level of intoxication, which has long been
recognized as within the relevant purview of a lay witness.
See Barnes, 

 (explaining that Oregon case
law has long recognized that lay opinion is admissible to
prove the inverse—that a person is intoxicated).

         That testimony would have related to the evidence
that defendant presented at trial. Defendant called an
expert DRE and used his testimony to argue that defendant’s
medications would have caused different effects than those
observed during the field sobriety tests. Defendant argued
that his poor performance on some of the tests could have
been caused by a lack of sleep or prior injuries. Testimony
from his family could have indicated that a preexisting condition or something other than those medications caused his
poor performance. That is to say, the family’s testimony could
have been helpful to the understanding of a fact in issue—
defendant’s level of intoxication—supporting defendant’s
390                                                         State v. Banks

theory of events and offering rebuttal of the state’s expert
witness.6
         Therefore, we conclude that the trial court erred
when excluding defendant’s wife’s testimony as impermissible expert testimony and that the error was not harmless.
Accordingly, we reverse and remand.
           Reversed and remanded.




    6
      To the extent that the state insists that defendant’s wife did not provide
enough information to know how to compare earlier episodes, that is an argument about persuasiveness appropriate for the consideration of a jury, not a concern of admissibility, nor a basis to deny substantial prejudice from an erroneous exclusion of evidence. Cf. State v. Lerch, 

, 

(1984) (explaining that the weight of a witness’s testimony is distinct from its
admissibility).