State v. Bowman

                                 565

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
     Argued and submitted December 7, 2022, affirmed June 22, 2023


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
              RALIN KATHALINE BOWMAN,
                   Defendant-Appellant.
               Lincoln County Circuit Court
                   19CR63060; A175839


  Thomas O. Branford, Senior Judge.
   John Evans, Deputy Public Defender, argued the cause
for appellant. On the brief were Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, and Anna Belais,
Deputy Public Defender, Office of Public Defense Services.
   Jordan R. Silk, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Eric Seepe, Assistant Attorney General.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
  PAGÁN, J.
  Affirmed.
566                                                       State v. Bowman

           PAGÁN, J.
         Defendant appeals from a judgment of conviction
for one count of driving while under the influence of intoxicants (DUII), ORS 813.010 (Count 1); one count of reckless
driving, ORS 811.140 (Count 2); and one count of recklessly
endangering another person, ORS 163.195 (Count 3). On
appeal, defendant assigns error to the trial court’s admission of testimony about an officer’s training in the use of a
horizontal gaze nystagmus (HGN) test.1 In her first assignment of error, defendant contends that the testimony was
hearsay, and that admission of the testimony violated her
right to confrontation. In her second assignment, defendant
contends that the testimony was scientific, but that the state
did not lay a sufficient foundation for its admission. We conclude that the challenged testimony was not hearsay. We
further conclude that defendant failed to preserve the argument made in her second assignment of error. We therefore
affirm.
         We review a trial court’s evidentiary ruling in light
of the record that was before the court at the time of the
ruling. State v. Eatinger, 

, 632, 

(2019).
         The relevant facts are not disputed. At the time of
trial, Sergeant Wertz had been a patrol trooper with the
Oregon State Police for over five years. He was also a drug
recognition expert (DRE). At trial, Wertz testified about
his background and training. He stated that he had conducted over 400 DUII investigations. He received training
on how to conduct those investigations at the police academy. In addition, Wertz completed the DRE program, which
he described as “the most advanced training that police officers will receive for doing drug investigations and impaired
driving investigations out in the field.” He also completed a
course called “A-ride Advanced Roadside Impaired Driver
Evaluations.”

    1
      HGN “is an involuntary, rapid oscillation of the eyes which occurs when a
person looks to the side at an object, and is characterized by an involuntary pendular (back and forth) jerking movement of the eye.” State v. O’Key, 

, 

 (1995) (internal quotation marks omitted).
Nonprecedential Memo Op: 

 (2023)                567

         On August 5, 2019, at around 9:40 p.m., Wertz
stopped defendant on Highway 101 near Waldport for failure to maintain a lane. As Wertz approached the vehicle, he
noticed that defendant had trouble putting her car in park.
A male passenger was in the car with defendant. Wertz
observed that defendant’s speech was “a little bit slow and
slurred.” Wertz smelled the odor of alcohol on defendant’s
breath. When asked how much alcohol she drank that
night, defendant stated, after a substantial pause, that she
had consumed “a Mike’s Hard Lemonade.” Defendant later
admitted consuming additional alcoholic beverages.
          Defendant consented to participating in field sobriety tests. Wertz administered the HGN test. After explaining the test to the jury, Wertz testified that defendant exhibited four out of six clues of impairment on the HGN test. He
testified that “she exhibited lack of smooth pursuit in both
eyes and distinct and sustained nystagmus at maximum
deviation in both eyes.” Wertz conducted the HGN test a second time to give defendant “the benefit of the doubt.” Wertz
placed defendant under arrest. After she was transported to
jail, defendant provided a breath sample that showed that
her blood alcohol content (BAC) was 0.08.
        On redirect examination, Wertz provided additional
testimony about the HGN test:
      “Q: Okay. And Trooper Wertz, I’ve heard other officers
   describe it with a [HGN], that with—with alcohol on board,
   your eyes regress to like being a child, or being a baby.
   What—?
      “A: It’s something that Dr. Karl Citek teaches. He’s an
   ophthalmologist that teaches—
     “[DEFENSE COUNSEL]: Your Honor, object to testimony about Dr. Carlson and—
      “[PROSECUTOR]:       Dr. Citek.
      “[DEFENSE COUNSEL]: —and lack of foundation as
   well.
        “THE COURT: I’m going to overrule that. We all learn
   … from other people everything we know, but this is not
   hearsay. He’s trying to explain the basis for the opinion, so
   it’s admissible.
568                                           State v. Bowman

      “[PROSECUTOR]:      Thank you, Judge.
      “BY [PROSECUTOR]:
       “Q: And so just briefly when you were being trained
  … as a DRE, he—Dr.—
      “A: Karl Citek, he teaches … in the DRE school. He
  is … a practicing ophthalmologist. He teaches at an ophthalmological college. The … way that he describes the
  effects of alcohol on the eyes to students is that he talks
  about—
     “[DEFENSE COUNSEL]:           I’m going to object; it’s
  hearsay.
      “THE COURT: Overruled.
      “BY [PROSECUTOR]:
      “A:   He talks about child development and—
     “[DEFENSE COUNSEL]: Your Honor, I’d also object
  to—for confrontation clause, because I can’t confront
  Dr. Carlson, and ask him questions under the Sixth
  Amendment so I would object under the State and Federal
  Constitution confrontation clause as well.
      “THE COURT: Okay, objection’s noted. It’s overruled.
      “BY [PROSECUTOR]:
      “A: What we were trained is that the [HGN] test is not
  only … a test where we look for otherwise meaningless
  clues of bouncing eyes, but that … the fact that the eyes
  are bouncing, and … inhibiting a person’s smooth pursuit, the fact that the eyes are bouncing at the peripheral
  are indicators that … the function of the eye to deliver
  messages to the brain … is diminished. It’s … not as
  good as a person who would be sober, and again the …
  trouble with this is that a person is operating a motor vehicle. You need your eyes to be able to see what’s happening
  on the roadway, to read signs, to steer your car appropriately within the lane, to react to anything that would be
  unexpected. A person with impaired vision should not be
  operating a vehicle.
     “Q: And so I’ve heard it explained, or described as …
  like a … child unable to focus, or the baby looking at—?
Nonprecedential Memo Op: 

 (2023)                 569

       “A: (Indiscernible) in—in the development of a child,
   a child develops their … eyes in the first roughly nine
   months of child development, a … baby is not able to move
   their head independent of their eyes. They have to look
   wherever they are—whatever they want to see they have
   to turn their entire head to do that. At about nine months
   to a year is when a child develops the ability to move their
   eyes independent of their head, and then they also begin
   to develop a more robust peripheral vision until you finally
   develop the … full use of your eyes as you would as an
   adult with full peripheral about 120-degree field of vision,
   and the ability to … move from a distance object to a near
   object and back and forth. Alcohol has the effect that it
   seems to cause a person to regress backwards in that process, so … a person with enough alcohol on board could
   be said to be seeing just like a baby, or they are not able to
   even look at something independent of moving their head.
   Their eyes are moving with their head now.
      “Q: Okay. That’s what I wanted to get to.”
The jury found defendant guilty of the charges of DUII,
reckless driving, and recklessly endangering another person. Defendant appeals.
         In her first assignment of error, defendant argues
that Wertz’s testimony about what he learned from an ophthalmologist regarding the effects of alcohol on the eyes was
inadmissible hearsay. Defendant also argues that admission of the statements violated defendant’s right to confront
witnesses. The state responds that there was no hearsay
because Wertz did not repeat any statements made by the
ophthalmologist. In addition, the state argues that OEC
703 permits experts to base their opinions on the opinions
of other experts, and that defendant’s right of confrontation
was not violated because Wertz’s testimony was not hearsay.
We agree with the state that the testimony at issue was not
hearsay.
         We review a trial court’s decision to admit testimony
over a hearsay objection for legal error. State v. Hixson, 

, 

 (2020). Similarly, we review
a confrontation challenge to the admission of evidence for
legal error. State v. Townsend, 

, 

, rev den, 

 (2018). OEC 801(3) defines hearsay
570                                        State v. Bowman

as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Although hearsay is
generally inadmissible, see OEC 802, there are exceptions to
that rule, see OEC 803, OEC 804.
         Here, when Wertz was about to testify about how
an ophthalmologist “describes” or “talks about” the effects of
alcohol on the eyes, defendant objected. The trial court overruled the objection. However, when Wertz’s testimony continued, he discussed his training in a way that did not refer
to the ophthalmologist, and Wertz did not repeat any statement made by the ophthalmologist. Instead, Wertz testified
more generally about what he learned in his training, and
he tied it directly to the basis for his opinion about defendant’s performance of the HGN test. Cf. State v. Thomas,

, 

, rev den, 

(2016) (testimony of factual details of a memory study, without tying that study to an opinion offered by the expert, was
inadmissible hearsay). Absent testimony from Wertz that
recounted a particular statement made by the ophthalmologist, there was no hearsay. See State v. Jenkins, 

, 

 (2016) (verbal hearsay requires the
witness to repeat an out-of-court statement).
          Further, OEC 703 provides in part that experts may
rely upon information that is “of a type reasonably relied
upon by experts in the particular field in forming opinions
or inferences upon the subject.” Although “OEC 703 does not
render otherwise inadmissible evidence admissible merely
because it was the basis for the expert’s opinion,” McCathern
v. Toyota Motor Corp., 

, 

 (2001),
because we have already concluded that Wertz’s testimony
was not hearsay, the concerns about using OEC 703 as a
backdoor for inadmissible hearsay are inapt. Indeed, even
if Wertz’s testimony could be construed as repeating statements made by the ophthalmologist, the Supreme Court has
stated that when evidence is offered “only to provide the
foundation necessary to explain” an expert’s opinions, and
not for its truth, then it is not hearsay. 

         In arguing that the testimony did implicate the concerns of misusing OEC 703 to admit otherwise inadmissible
Nonprecedential Memo Op: 

 (2023)                             571

evidence, defendant cites State v. Knepper, 

,

 (1983), and State v. Prose, 

, 

 (2020), rev den, 

 (2021). Those cases
are distinguishable because, in each of them, the expert
testified regarding case-specific facts that were otherwise
inadmissible. In Knepper, 

, the expert
witness disclosed the results of the defendant’s blood alcohol test even though those test results were inadmissible
because they had been obtained in a manner that failed to
meet statutory requirements. And in Prose, 

, it was prejudicial error for the trial court to admit a
pediatrician’s testimony regarding the results of an infant’s
urine test “as substantive evidence of the test results over
defendant’s hearsay objection.” Here, by contrast, Wertz’s
challenged testimony did not concern any facts specific to
the case or about the defendant. In addition, Wertz did not
repeat any out-of-court statements, but, instead, provided
general information that he had learned in his DRE training. We conclude that the trial court did not err when it
overruled defendant’s hearsay objection.

         For similar reasons, we reject defendant’s claim
that the challenged testimony violated defendant’s right
to confront witnesses. Article I, section 11, of the Oregon
Constitution guarantees a criminal defendant the right “to
meet the witnesses face to face.” For hearsay testimony to
be admissible “over a confrontation rights objection,” the
declarant must be unavailable, and the declarant’s out-ofcourt statements must have adequate indicia of reliability.
State v. Belden, 

, 

 (2021). However,
Article I, section 11, imposes those requirements “only as
to hearsay evidence.” State v. Wyant, 

, 

 (2019), rev den, 

 (2020). In the instant
case, Wertz’s testimony was not hearsay and, as a result,
there was no violation of defendant’s right to confront
witnesses.2

    2
      On appeal, defendant does not argue that there was a violation of her federal confrontation right. Even if her argument could be construed as invoking
the federal constitution, we note that the Confrontation Clause of the Sixth
Amendment applies to testimonial hearsay. Davis v. Washington, 

, 

, 

 (2006). Here, as already explained, there was
no hearsay at all.
572                                         State v. Bowman

        In defendant’s second assignment of error, she
argues that Wertz’s challenged testimony was scientific
evidence for which the state failed to lay a sufficient foundation. We conclude that defendant failed to preserve the
argument.
         To preserve an argument for appeal, “a party must
provide the trial court with an explanation of his or her
objection that is specific enough to ensure that the court can
identify its alleged error with enough clarity to permit it
to consider and correct the error immediately, if correction
is warranted.” State v. Wyatt, 

, 

(2000). “Preservation also ensures fairness to an opposing
party, by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by
surprise.” Peeples v. Lampert, 

, 

(2008). The “touchstone” is “procedural fairness to the parties and to the trial court.” 

.
         When Wertz began to testify about what he learned
from an ophthalmologist during his DRE training, defendant objected to testimony about the ophthalmologist, and
she stated, “lack of foundation as well.” The trial court overruled the objection, stating “[w]e all learn … from other
people everything we know, but this is not hearsay. He’s trying to explain the basis for the opinion, so it’s admissible.”
Shortly thereafter, defendant made a hearsay objection, and
she also objected under the state and federal confrontation
clauses. The trial court overruled the objections.
         Based on that record, we conclude that defendant
did not preserve her argument that Wertz’s testimony was
scientific evidence for which the state failed to lay a sufficient foundation. When defendant initially objected, the
trial court understood defendant to be making a hearsay
objection, and defendant did not follow up to clarify whether
she was also objecting for the reasons she now raises on
appeal. Indeed, the trial court may have understood defendant to be objecting on the ground that the state failed to
lay an adequate foundation for the admission of the evidence
under a hearsay exception. See State v. Ritchie, 

, 594 n 2, 

 (2012), rev den, 

 (2013)
(“A foundation objection can encompass a range of issues.”);
Nonprecedential Memo Op: 

 (2023)              573

see also State v. K. J. B., 

, 

 (2018)
(“[A] general objection to a trial court ruling is not sufficient
to preserve all possible theories for such an objection.”).
         In State v. O’Key, 

, 

(1995), the Supreme Court determined that HGN test evidence is scientific evidence. Applying a multifactor test,
the Supreme Court concluded that “the general proposition
supporting HGN test evidence—that alcohol consumption
causes nystagmus—is scientifically valid.” 

. The
Supreme Court held “that, subject to a foundational showing that the officer who administered the test was properly qualified, the test was administered properly, and the
test results were recorded accurately, HGN test evidence is
admissible in a DUII proceeding to establish that a defendant was under the influence of intoxicating liquor.” 

.
          Here, during Wertz’s direct examination, Wertz testified that defendant exhibited clues of impairment on the
HGN test, and when the prosecutor asked whether the presence of nystagmus indicated that the defendant had consumed alcohol, Wertz responded that there was “a likelihood
that it’s alcohol, or it could be some other … substance, but
there’s definitely evidence of impairment if you see at least
four out of six clues.” Citing O’Key, defendant objected, and
she pointed out that O’Key was “limited to talking about the
presence of alcohol in the system.” The prosecutor responded
that Wertz was permitted to offer an opinion that the clues
were “indicative of impairment.” The trial court overruled
the objection.
         Later, when defendant made her “lack of foundation” objection, defendant neither mentioned O’Key, nor did
she provide the trial court with any indication that she was
objecting on the ground that the state failed to lay a sufficient foundation for the admission of scientific evidence.
Instead, she made a hearsay objection and objected based on
her right to confront witnesses. As we explained in Ritchie,
a generalized objection on the basis of foundation may fail to
alert the trial court and the state to the alleged error that a
defendant asserts on appeal. 

. Defendant
was clearly aware of O’Key, and, based on her failure to refer
574                                                      State v. Bowman

to that case later, it is reasonable to infer that her “lack of
foundation” objection was not based on a concern that the
state had failed to lay a sufficient foundation for the admission of scientific evidence. Because defendant failed to preserve that argument, we decline to address the merits of
defendant’s second assignment of error.3
           Affirmed.




    3
      Defendant has not requested plain-error review. See State v. Ardizzone, 

, 

, rev den, 

 (2015) (declining to review for
plain error absent a request to do so).