State v. Smith

                                   299

   This is a nonprecedential memorandum opinion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 May 9, remanded for resentencing, otherwise affirmed June 7, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    LESLIE JAMES SMITH,
                      Defendant-Appellant.
                    Coos County Circuit Court
                       21CR11621; A176873


   Andrew E. Combs, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   TOOKEY, P. J.
   Remanded for resentencing; otherwise affirmed.
300                                             State v. Smith

        TOOKEY, P. J.
         Defendant appeals a judgment convicting him of one
count of driving under the influence of intoxicants (DUII),
ORS 813.010 (2019), and he raises two assignments of error.
In the first, he argues that the trial court erred when it
denied his motion for a judgment of acquittal (MJOA) as to
DUII. In the second, he argues that the trial court erred
when it imposed a special condition of probation. For the following reasons, we remand for resentencing, and we otherwise affirm.
         First Assignment of Error. Defendant challenges the
denial of his MJOA as to DUII, arguing that the evidence
was not legally sufficient to support conviction under either
a per se theory or an impairment theory of DUII. Viewing
the evidence in the light most favorable to the state, State v.
Hedgpeth, 

, 

 (2019), we conclude
that the state presented legally sufficient evidence.
          ORS 813.010 provides, in relevant part, “A person
commits the offense of driving while under the influence
of intoxicants if the person drives a vehicle while the person … [h]as 0.08 percent or more by weight of alcohol in
the blood of the person as shown by chemical analysis of
the breath …,” or “[i]s under the influence of intoxicating
liquor[.]”
         Here, defendant provided a breath sample indicating a blood alcohol content (BAC) of 0.08 approximately 90
minutes after police made contact with defendant—a contact that, based on testimony elicited by the state, a reasonable trier of fact could find occurred about eight minutes after defendant had “pulled up” and parked his car.
Additionally, defendant acknowledged having earlier consumed at least one alcoholic beverage; his breath had a
“moderate” or “strong” odor of alcohol; his eyes appeared
“bloodshot, watery, and glassy”; he appeared “unsteady on
his feet,” with a “front to back sway”; and a trooper determined—based on performing field-sobriety testing and his
training and experience—that defendant was impaired to
a noticeable and perceptible degree. Taken together, that
evidence is sufficient for a rational trier of fact, making reasonable inferences, to find beyond a reasonable doubt the
Nonprecedential Memo Op: 

 (2023)                                301

essential elements of DUII under either a per se theory or
an impairment theory. Hedgpeth, 

, 735 n 6
(“[E]vidence that a defendant showed symptoms of impairment at the time he or she was stopped” is “relevant even
to prove a per se violation of ORS 813.010 because it can be
used by the factfinder as the ‘something more’ that is necessary to connect the breath result to the statutory requirement of a BAC of .08 percent or more at the time of driving.”
(Brackets and internal quotation marks omitted.)); State v.
Dollman, 

, 

, rev den, 

 (2020) (concluding that “symptoms of impairment”
shortly after driving coupled with a BAC test can “support
an inference” as to “BAC at the time of driving”). We therefore conclude that the trial court did not err in denying
defendant’s MJOA.
         Second Assignment of Error. Defendant next argues
that the trial court erred when it imposed a special condition of probation requiring that defendant “not live in any
residence where alcohol is kept,” because that condition was
not announced in open court. The state concedes that the
trial court erred when it imposed that special condition of
probation, because it did not impose that condition orally, in
open court and in defendant’s presence. We agree with and
accept the state’s concession. See State v. Hester, 

, 

 (2021), rev den, 

 (2023)
(accepting state’s concession that sentencing court erred by
imposing special conditions of probation outside defendant’s
presence); State v. Priester, 

, 

 (2023) (“[W]e will remand for resentencing when a court
imposes conditions of probation in a judgment that have not
been announced in open court.”). Accordingly, we remand
for resentencing.1
           Remanded for resentencing; otherwise affirmed.
    1
      In his briefing regarding the second assignment of error, defendant also
advances a separate argument that the trial court further erred in imposing
the challenged condition of probation, because that condition is “impermissibly
overbroad.” Because we must remand for resentencing, we do not address that
argument, which the trial court will have an opportunity to address in the first
instance on remand. See State v. Manning, 

, 

(2019), rev den, 

 (2020) (declining to address contention that trial court
plainly erred in imposing sentence, where the trial court would have an opportunity to address that issue in the first instance on remand).