State v. Horner

                                    346

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
  Submitted on remand from the Oregon Supreme Court December 30, 2020,
affirmed August 10, petition for review denied November 23, 2022 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 LONI ELIZABETH HORNER,
                     Defendant-Appellant.
                Multnomah County Circuit Court
                     18CR35204; A169866


  On remand from the Oregon Supreme Court, State v.
Horner, 

, 

 (2020).
   Kenneth R. Walker, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Dashiell L. Farewell, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   ORTEGA, P. J.
   Affirmed.
Nonprecedential Memo Op: 

 (2022)                              347

           ORTEGA, P. J.
         Defendant appeals from a judgment convicting her
of driving under the influence of intoxicants, ORS 813.010.
On appeal, defendant raises one assignment of error in
which she contends that the trial court erred by refusing
to give the jury the less-satisfactory-evidence instruction.
We previously affirmed without opinion, and the matter was
remanded by the Supreme Court for reconsideration in light
of its decision in State v. Payne, 

, 

(2020). We again conclude that the trial court did not err
because the evidence was not sufficient to merit giving the
instruction, and we affirm.
        Under ORS 10.095, the jury is “to be instructed by
the court on all proper occasions” as follows:
       “(7) That evidence is to be estimated, not only by its
    own intrinsic weight, but also according to the evidence
    which it is in the power of one side to produce and of the
    other to contradict; and, therefore,
        “(8) That if weaker and less satisfactory evidence is
    offered when it appears that stronger and more satisfactory evidence was within the power of the party, the evidence offered should be viewed with distrust.”
What constitutes a “proper occasion” for giving an instruction under ORS 10.095 is a question of law. Payne, 

.1
          As we recently explained in State v. Palacios-Romero, “the less-satisfactory evidence instruction is to be
given when (1) other evidence was reasonably available on a
fact in issue, and (2) there is a basis for the jury to conclude
that the other evidence is stronger and more satisfactory
than the evidence offered.” 

, 

 (2022) (citations omitted). The instruction “ ‘draws the
jury’s attention to a party’s failure to produce evidence when
that failure could give rise to an inference that the evidence
would be adverse to the party—that is, when it appears that
    1
      Some of defendant’s briefing, which was filed before Payne was decided,
is couched in terms of the trial court abusing its discretion in not giving the
instruction. As Payne has since made clear, that is not the applicable standard of
review.
348                                          State v. Horner

the party may be trying to hide something.’ ” 

 (quoting
State v. McNassar, 

, 

, rev den,

 (1986)) (emphasis in McNassar).
         At trial, the state presented the testimony of the
arresting officer, Fullington, establishing the details and
timing of the traffic stop and subsequently taking defendant
into custody. Defendant asserts that the stronger and more
satisfactory evidence would have been the documentation
from the computer aided dispatch (CAD), which included
time stamps of Fullington’s actions. Defendant argues that
the CAD would have provided precise information about the
timing of the stop, for purposes of extrapolating defendant’s
blood alcohol content at that time.
         However, having reviewed the record, defendant
has not established any basis to support an inference that
the timing information from the CAD would be adverse to
the state relative to the officer’s testimony.
        Under the circumstances presented here, the trial
court did not err in declining to give the less-satisfactoryevidence instruction.
        Affirmed.