State v. Thomas (A173467)

                                       114

            Submitted December 3, 2021, affirmed February 8, 2023


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    MICHAEL SCOTT THOMAS,
                        Defendant-Appellant.
                     Grant County Circuit Court
                       19CR46690; A173467
                                   

     A jury convicted defendant of one count of misdemeanor driving under the
influence of intoxicants, ORS 813.010(4). Defendant appeals, raising four assignments of error: (1) that, under State v. Tripathi, 

, 

(2009), the trial court erred by admitting defendant’s urinalysis (UA) without
determining whether it met the foundational requirements applicable to scientific evidence; (2) that the trial court otherwise abused its discretion under OEC
403 by admitting the UA; (3) that the trial court erred when it delivered Uniform
Criminal Jury Instruction (UCrJI) 1008 regarding inferences; and (4) that the
trial court erred when it declined to deliver defendant’s proposed special instruction on inferences. Held: The plain terms of ORS 813.131(5) made the UA categorically admissible; Tripathi did not help defendant because it does not represent
the current state of the law. The Court of Appeals further concluded that the
trial court did not abuse its discretion in concluding that the probative value of
defendant’s UA was not substantially outweighed by the danger of unfair prejudice. Finally, pursuant to State v. Hines, 

, 

, rev den, 

 (1987), the trial court did not err when it delivered UCrJI 1008 and not
defendant’s proposed jury instruction.
    Affirmed.



    W. D. Cramer, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Before Jacquot, Presiding Judge, and Lagesen, Chief
Judge, and Kistler, Senior Judge.*
______________
    * Jacquot, P. J., vice James, J. pro tempore.
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 (2023)   115

  LAGESEN, C. J.
  Affirmed.
116                                State v. Thomas (A173467)

         LAGESEN, C. J.
          A jury convicted defendant of one count of misdemeanor driving under the influence of intoxicants (DUII),
ORS 813.010(4). Defendant appeals, raising four assignments of error: (1) that the trial court erred by admitting
defendant’s urinalysis (UA) without determining whether
it met the foundational requirements applicable to scientific evidence; (2) that the trial court otherwise abused its
discretion under OEC 403 by admitting the UA; (3) that
the trial court erred when it delivered Uniform Criminal
Jury Instruction (UCrJI) 1008 regarding inferences; and
(4) that the trial court erred when it declined to deliver
defendant’s proposed special instruction on inferences. We
affirm.
         UA. We start with the question whether the trial
court erred when it admitted evidence of defendant’s UA.
As noted, defendant identifies two alleged errors: admitting
the evidence without requiring the state to satisfy the foundational standards for the admission of scientific evidence
articulated in State v. Brown, 

, 

(1984), and State v. O’Key, 

, 

 (1995),
and abusing its discretion under OEC 403 in admitting the
evidence. We conclude that the trial court did not err in
either respect.
         The first question is whether the trial court erred
by admitting the UA without requiring the state to demonstrate that it satisfied the Brown/O’Key standards. In this
instance, the legislature has promulgated a statute governing the admissibility of UAs in criminal and civil cases,
making the question one of law. That means we review for
legal error. See, e.g., State v. Curiel, 

, 

 (2021) (reviewing for legal error trial court’s determination that evidence was admissible under evidentiary
rule codified by statute).
          As the state points out, the legislature has made UAs
performed by specified laboratories categorically admissible
in civil and criminal cases and proceedings for the purpose
of demonstrating whether a person was driving under the
influence of intoxicants. ORS 813.131(5) provides:
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       “(a) At the trial of any civil or criminal action, suit or
   proceeding arising out of the acts committed by a person
   driving a motor vehicle while under the influence of intoxicants, a valid chemical analysis of a person’s urine is admissible as evidence and may be used with other evidence, if
   any, to determine whether the person was driving while
   under the influence of intoxicants.
      “(b) A chemical analysis of a person’s urine is valid if
   analysis is performed in an accredited or licensed toxicology
   laboratory.”

 (emphases added). Here, there is no dispute that defendant’s UA was performed in an accredited toxicology laboratory. The plain terms of ORS 813.131(5) therefore made the
UA categorically admissible on the point of whether defendant was under the influence of intoxicants. In view of that
legislative choice, the state was not required to demonstrate
additionally that UAs otherwise meet the requirements of
Brown and O’Key.
         Arguing that we should conclude otherwise, defendant points to our decision in State v. Tripathi, 

, 

 (2009). There, we concluded that a trial court
properly excluded a UA based on the state’s failure to demonstrate that it satisfied applicable foundational requirements
for admissibility. See generally 

 In rejecting the state’s
argument that UAs were categorically admissible under the
version of ORS 813.131 in effect at the time, we noted that
“ORS 813.131 does not mention the use of urinalysis as evidence in a court proceeding,” and, ultimately, concluded that
the legislature “did not intend to eliminate the otherwise
applicable foundational requirements for the admission of
urinalysis evidence in a DUII case.” 

.
         Tripathi does not assist defendant because after
we decided it, the legislature amended ORS 813.131(5) to
its present form, the plain terms of which make UAs performed by accredited or licensed laboratories admissible.
See Or Laws 2009, ch 325, § 1. In fact, as the staff measure
summary for the amendments make clear, the express purpose of those amendments was to override Tripathi:
      “Under current law there are provisions that determine
   the admissibility of breath and blood test results in DUII
118                                 State v. Thomas (A173467)

   and DUII-related cases. However, there are not specific provisions dealing with the admission of urine tests which are
   a required component for drug recognition examinations
   given to drivers suspected of driving under the influence
   of controlled substances. This disparity was recently highlighted by the Oregon Court of Appeals in State v. Tripathi,
   

, [304] P3d [134] (2009). In Tripathi, the court
   observed: ‘Unlike ORS 813.160, ORS 813.300, and ORS
   813.322, which expressly create criteria for the admission
   of breath and blood test results, there is no analogous provision in the implied consent law for urine testing.’
      “HB 3051A would address this disparity by creating an
   evidentiary standard for admitting urine analysis evidence
   when it has been performed in a licensed or accredited lab.
   This change is consistent with the provisions that govern
   admissibility of breath and blood samples.”
Staff Measure Summary, House Committee on Judiciary,
HB 3051, Apr 28, 2009; see Couey v. Atkins, 

,

 (2015) (looking to staff measure summary as
probative of legislative intent). Given the statutory amendments, Tripathi does not represent the current state of the
law; under the plain terms of ORS 813.131(5) evidence of
a UA is admissible in a DUII or DUII-related case, provided that it was conducted by a qualifying laboratory. The
trial court did not err in admitting defendant’s UA without
requiring the state to meet the Brown/O’Key foundational
standards.
         Defendant also argues that the court abused its
discretion under OEC 403 by admitting the UA and, alternatively, that the record is not adequate for us to review
whether the court properly exercised its discretion under
OEC 403. We conclude to the contrary that the record is adequate to permit review and, further, that the court did not
abuse its discretion in concluding that the probative value
of defendant’s UA was not substantially outweighed by the
danger of unfair prejudice.
         Jury instructions on inferences. Defendant’s remaining two assignments of error challenge the jury instructions
related to inferences. In his third assignment of error, defendant contends that the trial court erred in delivering UCrJI
No. 1008, regarding inferences. In his fourth assignment of
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error, he contends that the trial court erred in declining to
deliver his proposed special instruction on inferences. Those
arguments run counter to case law, and we reject them for
that reason.
       Regarding defendant’s third assignment of error,
UCrJI No. 1008, delivered by the trial court, states:
      “In deciding this case you may draw inferences and
   reach conclusions from the evidence, if your inferences and
   conclusions are reasonable and are based on your common
   sense and experiences.”

Defendant contends that that instruction is erroneous
because, in his view, it lessens the burden of proof, notwithstanding the fact that the jury was instructed correctly that
a finding of guilt requires proof beyond a reasonable doubt.
As the state points out, we rejected the same argument in
State v. Hines, 

, 

, rev den, 

 (1987), concluding that, “[s]o long as [the jury is] correctly instructed that a finding of guilty cannot be made
on less than proof beyond a reasonable doubt, it cannot be
error to also instruct them that they may use their powers to reason and common sense” and may draw reasonable
inferences from the evidence. 

 at 684 n 2. In his reply
brief, defendant acknowledges that Hines is contrary to his
position and argues that we should overrule it, but we generally do not consider arguments raised for the first time in
a reply brief, see State v. Murga, 

,

 (2018), and do not do so here. Beyond that, we
note that our conclusion in Hines appears consistent with
the Supreme Court’s decision in State v. Hedgpeth, 

, 

 (2019), which rejected the contention
that, to be reasonable, an inferred fact must necessarily follow from the evidence:
   “The notion that reasonable inferences are those that follow necessarily from the state’s evidence cannot be squared
   with our case law that the evidence may give rise to multiple reasonable inferences and that the choice between
   those reasonable inferences is a matter for the jury.”

In other words, defendant’s reply-brief argument for overruling Hines also appears to be in tension with Hedgpeth,
120                                State v. Thomas (A173467)

another reason we decline to exercise our discretion to consider it.
        Regarding defendant’s fourth assignment of error,
defendant requested that the trial court supply the jury
with the following instruction:
      “In deciding this case you may draw inferences and
   reach conclusions from the evidence. However, an inferred
   fact must be one that you are convinced follows beyond a
   reasonable doubt from the underlying facts. Evidence is
   insufficient to support an inference when the conclusion
   to be drawn from it requires too great an inferential leap.
   Likewise, evidence is insufficient to reach a conclusion
   when it requires the stacking of inferences to the point of
   speculation.”
Defendant contended that his instruction more accurately
explained the law of inferences and their relationship to the
state’s burden. The court declined to deliver the instruction
and delivered the uniform instruction instead. On appeal,
defendant contends that that was error, renewing his arguments below.
         As we have explained, even if a requested instruction correctly states the law, a trial court need not deliver
it if the issue is adequately covered by other instructions.
Torres v. Persson, 

, 

 (2020),
rev den, 

 (2021). Here, assuming without deciding
that defendant’s instruction was legally correct (the state
argues that it is not wholly consistent with State v. Rainey,

, 

 (1985)), under Hines, the instructions given by the trial court regarding inferences and the
state’s burden of proof beyond a reasonable doubt adequately
covered the issues of inferred facts and the requirement that
guilt be found beyond a reasonable doubt. The trial court
therefore did not err when it declined to deliver defendant’s
requested instruction.
        Affirmed.