State v. Wildeboer

404                             March 5, 2025       No. 181

             IN THE COURT OF APPEALS OF THE
                     STATE OF OREGON

                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                COURTNEY GAYLE WILDEBOER,
                      Defendant-Appellant.
                   Grant County Circuit Court
                      21CR27110; A178436

    Wes Williams, Judge.
    Argued and submitted February 7, 2024.
   Daniel C. Silberman, 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.
   Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Kistler,
Senior Judge.*
    KISTLER, S. J.
    Affirmed.




______________
   * Kistler, S. J., vice Jacquot, J.
Cite as 

 (2025)   405
406                                                  State v. Wildeboer

          KISTLER, S. J.
         Defendant appeals a judgment for driving under the
influence of intoxicants (DUII). She raises one assignment
of error on appeal. She argues that the trial court erred in
denying her request for a less-satisfactory-evidence instruction. We affirm.
         An Oregon State Police trooper saw defendant driving 75 miles per hour in a 65-mile-per-hour zone. It had
been raining and sleeting, and the road was wet. Traveling
at 75 miles an hour, defendant’s car rapidly approached a
slower moving truck. Although defendant delayed applying
her brakes, her delay did not cause her car to hit the truck,
nor did it cause her car to skid or swerve out of her lane.
         The trooper stopped defendant for exceeding the
speed limit. When he approached her car, he saw that defendant had “droopy eyelids.” She was talking out of the corner
of her mouth and her speech “seemed slurred.” She had burn
marks on her fingers and sores on her arm, both of which
were consistent with methamphetamine use. He saw a glass
pipe in the center console of her car, which could be used for
either methamphetamine or marijuana. A later search incident to arrest of the passenger compartment produced a dab
bong, which is used to smoke a concentrated form of marijuana, a butane torch, which can be used to heat a dab bong,
and used marijuana vape pens. Additionally, defendant told
the trooper that she had marijuana in the car but that it
belonged to a friend.
        Based on his observations, the trooper initially
asked defendant to perform three field sobriety tests—the
gaze-nystagmus, walk-and-turn, and one-leg-stand tests.
The trooper testified that only two of those tests—the
walk-and-turn and one-leg-stand tests—are used to determine whether a suspect is impaired by drugs.1 The trooper
modified those two tests (and the way he scored them)
to accommodate defendant’s physical limitations, which
    1
      The trooper testified that the gaze-nystagmus test does not disclose
whether a person is impaired by methamphetamine or marijuana. Accordingly,
although defendant did not exhibit any nystagmus, that result did not suggest,
one way or the other, whether she was currently impaired by methamphetamine
or marijuana.
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 (2025)                                                 407

resulted from an accident several years earlier. Specifically,
he did not count defendant’s inability to walk nine steps heel
to toe in a straight line against her, and he permitted her to
shift from one leg to another during the one-leg-stand test.
         The trooper noted that, apart from defendant’s physical issues, she did not follow his instructions, which was a
clue that she was currently impaired. The trooper also asked
defendant to perform two more tests to better assess whether
she was impaired. Specifically, he asked her to touch the tip of
her finger to the tip of her nose and to estimate when 30 seconds had passed. On the finger-to-nose test, defendant failed
five times to touch the tip of her finger to the tip of her nose.
Among other things, she touched the bridge of her nose and
then searched for the tip. She touched the wrong part of her
nose with the wrong part of her finger. And, at least twice,
she left her finger pressed against her nose, even though the
trooper had told her to immediately bring her finger down
after touching her nose. Usually, most people will get the test
right by the fifth attempt. Defendant, however, did not.
         Defendant also did not successfully perform the
last test. That test requests suspects to estimate when 30
seconds has passed. Defendant concluded that 30 seconds
had passed 12 seconds too early—a result that the trooper
explained indicated that she was impaired and that “her
internal clock was sped up.”2
         Based on all the evidence that he had observed, the
trooper suspected that defendant was driving under the
influence of drugs—methamphetamine or marijuana. Even
though he did not suspect that defendant had been drinking, he followed the required procedure and took her first to
the police station for a breathalyzer test to determine her
blood alcohol content (BAC). As expected, that test did not
disclose the presence of alcohol in her system. The trooper
then asked defendant to submit a urine sample to test for
drugs, which prompted defendant to tell the trooper that
she had used methamphetamine two days earlier.
     2
       On cross-examination, after acknowledging that the trooper was not a
medical expert, defense counsel asked whether defendant’s head injury several
years earlier could have affected her ability to estimate time and follow the trooper’s instructions. The trooper responded, “I would think that—yeah, if the brain
was still injured, then it could.”
408                                                        State v. Wildeboer

         The trooper testified that a urine test will detect
methamphetamine and marijuana use for at least two days
after a person has used those drugs. Those drugs, however,
affect a person’s ability to drive for a shorter period of time,
usually several hours. A blood test, by contrast, will show
whether those drugs were psychoactive when the blood sample was drawn—whether they were currently affecting a
suspect’s driving. When asked on direct examination why
he had not sought a blood sample in addition to a urine
sample, the trooper answered that a blood test was more
invasive. He then added, in answering the same question,
“Based off of everything that I had seen, again, the totality
of the circumstances, I did not believe that I needed to take
her up and get blood drawn.”
         On cross-examination, defense counsel pressed the
trooper on whether a blood test was more invasive, and the
state asked the trooper on redirect about the statement he
had made on direct examination—that, based on everything
he had seen, he did not believe that he needed to take defendant to the hospital for a blood draw. The trooper explained,
without objection, that he was “very confident” that defendant was currently impaired and that is “why [he] did not
feel the need to go after [a] blood” draw. As he testified on
recross-examination, under the circumstances, a blood draw
would have been “overkill.”
          A forensic scientist testified that defendant’s urine
sample tested positive for methamphetamine, a byproduct of
methamphetamine, and a byproduct of marijuana. According
to the forensic scientist, that test result meant that defendant could have used methamphetamine and marijuana
either a few days before the test or almost immediately
before the trooper stopped her. The forensic scientist testified, as the trooper had, that a blood test would have shown
whether either drug was psychoactive when the blood sample was taken. She explained, however, that a urine test was
the statutorily preferred method for testing for drugs3 and
that the Oregon State Police Criminal Laboratory, where she
    3
      Consistently, when defense counsel asked the trooper on cross-examination
whether he had offered defendant the option of a urine or a blood test, the trooper
replied: “I don’t recall. I read it off the implied consent form, so I believe I would
have asked for a urine test.”
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works, does not test blood for drugs. As she put it, Oregon
“almost exclusively” tests urine rather than blood for drugs.
         At the close of the evidence, defendant asked the trial
court to give Uniform Criminal Jury Instruction (UCrJI)
1030 regarding less satisfactory evidence.4 In support of that
request, defendant argued that the jury reasonably could
find that a blood test was objectively superior to a urine test
because it would have revealed whether marijuana or methamphetamine was psychoactive when the blood sample was
drawn. The state responded that Oregon, by statute, provides
for a urine test to determine whether a driver is under the
influence of drugs. See ORS 813.131(2) (implied consent to
a urine test for intoxicants other than alcohol). The Oregon
statutes permit but do not require a blood test for drugs. See
ORS 813.150. The state reasoned that this was not a case in
which the state had better evidence in its possession than it
offered at trial. Rather, it was a case in which the trooper,
consistently with the Oregon statutes, reasonably determined that additional testing was not necessary and, for that
reason, did not try to obtain a more invasive blood test.
         The trial court did not give defendant’s requested
instruction. It explained that it was “very familiar” with
that instruction and did not “think we have the evidence
here that warrants” giving it. The jury found defendant
guilty of DUII, and defendant has appealed the judgment
of conviction. She argues that ORS 10.095 required the
trial court to give her requested less-satisfactory-evidence
instruction. That statute provides, in relevant part, that the
jury is “to be instructed … on all proper occasions:
       “(7) That evidence is to be estimated, not only by its
   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,


   4
     UCrJI 1030 provides:
       “The state has the burden to establish the guilt of the defendant beyond a
   reasonable doubt. When you evaluate the state’s evidence, you may also consider the power of the state to gather and produce evidence. If the evidence
   offered by the state was weaker and less satisfactory than other stronger or
   more satisfactory evidence that the state could have offered, then you should
   view the weaker and less satisfactory evidence with distrust.”
410                                                        State v. Wildeboer

        “(8) That if weaker and less satisfactory evidence is
    offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered
    should be viewed with distrust.”
    ORS 10.095(7), (8).5
          Defendant reasons that, on this record, the jury
could find (1) that a blood test would have been “stronger
and more satisfactory” evidence than the urine test that the
state offered and (2) that it “was within the power of the
[state]” to produce the stronger evidence at trial. It follows,
she reasons, that the trial court erred.
         Defendant must establish both prongs of her statutory argument to prevail. State v. West, 

, 

 (2017). We begin with the second prong—
whether it “was within the [state’s] power” to produce the
results of a blood test at trial.6 On that issue, defendant
argues that, because the trooper could have obtained a blood
test when he stopped her, it “was within the [state’s] power”
to produce the results of a blood test at trial. As we understand defendant’s argument, it is immaterial whether the
trooper reasonably concluded, based on the available evidence, that a blood test was not necessary. All that matters, defendant contends, is whether it was possible for the
     5
       Those statutory instructions, if given verbatim in a criminal case, could violate a defendant’s constitutional rights not to testify and to have the state prove
its case beyond a reasonable doubt. See Sandstrom v. Montana, 

, 

, 

 (1979) (conclusive and rebuttable presumptions directed
to an element of the state’s criminal case violate due process); State v. Betts, 

, 

 (1963) (commenting on a criminal defendant’s constitutional right not to testify). UCrJI 1030 applies only to the state and thus avoids the
constitutional problems that a verbatim statutory instruction could pose.
     6
       The Oregon Supreme Court and we have identified multiple instances in
which a less-satisfactory evidence instruction is not appropriate. See, e.g., Fitze
v. American-Hawaiian SS. Co., 

, 

 (1941) (agreeing
that a less-satisfactory-evidence instruction was not warranted because either
party could have called an absent witness and the documentary evidence presented was equivalent to, if not better than, the witness’s testimony); Mooney
v. Holcomb, 

, 

 (1888) (declining on de novo review to apply the
presumption now codified in ORS 10.095(8) because the circumstantial evidence
was equally, if not more, persuasive than direct testimony); West, 

 (concluding that, on the facts in that case, documentary evidence was
equivalent to video evidence). In this case, we focus on a separate issue—whether
it “was within the power” of the state to offer a blood test at trial or, to use the
phrase from West, whether that “evidence was reasonably available.” See 

 (internal quotation marks omitted).
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trooper to have obtained a blood test at some point in the
past.
          The premise of defendant’s argument is difficult to
reconcile with our cases. In State v. McNassar, 

, 

, rev den, 

 (1986), the defendant argued that the city’s decision not to equip its police cars
with cameras or tape recorders deprived the jury of probative evidence that would have shown whether she was under
the influence of intoxicants when she was arrested for DUII.

 The defendant contended that the evidence that the state
could have gathered (a video or an audio recording) was superior to the evidence that the state offered at trial (the officer’s
testimony), which meant that the trial court erred in not giving her requested less-satisfactory-evidence instruction. 

         We reached a different conclusion. We explained
that “the city’s policy decision not to provide the necessary
equipment [wa]s not an attempt to suppress unfavorable evidence. The state’s failure to gather or produce this evidence
did not compel the court to give the requested instruction.”
Id. at 218 (emphasis added). As we explained, the instruction is proper when a party’s failure to gather or produce
evidence “could give rise to an inference that the evidence
would be adverse to the party—that is, when it appears that
the party may be trying to hide something.” Id. (emphasis
omitted). See also State v. Palacios-Romero, 

, 

, rev den, 

 (2022) (following
McNassar); State v. Brock, 

, 

(1981), aff’d on other grounds, 

, 

 (1982)
(holding that a less-satisfactory-evidence instruction was
not required when the state reasonably declined to pursue
further investigative measures that could have gathered
arguably stronger corroborating evidence).
         If defendant’s interpretation of ORS 10.095(7) and
(8) were correct, then McNassar should have been decided
differently. There was no dispute in that case that the
city could have installed cameras and tape recorders in
its police cars; that is, to use defendant’s textual hook, it
“was within the [state’s] power” to gather photographic and
audio recordings. However, we held that the city reasonably
made a policy decision not to do so, unrelated to any desire
412                                                    State v. Wildeboer

to suppress adverse evidence in the defendant’s case. As we
read McNassar, a party need not conduct every possible test
that could provide marginally better information or face a
less-satisfactory-evidence instruction, as long as its decision
not to conduct the test was reasonably based on legitimate
considerations.
         Ordinarily, McNassar would provide a complete
answer to defendant’s statutory argument. Defendant, however, advances two reasons why McNassar either should not
or does not control the decision in this case. She argues primarily that the text of ORS 10.095(8), read in context, demonstrates that McNassar was wrongly decided and should be
overruled. Alternatively, she argues that, even if McNassar
is good law, the jury reasonably could have inferred that the
trooper did not seek a blood test for an illegitimate reason—
namely, to suppress potentially adverse evidence.
        We begin with defendant’s primary argument. She
bases that argument on the legislature’s use of the present
passive voice “is offered,” the past tense verb “was,” and the
word “power” rather than “possession” in ORS 10.095(8).
As noted, ORS 10.095(8) provides that the jury is to be
instructed on all proper occasions:
    “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.”
Defendant reasons that the distinction between “is offered”
and “was” in ORS 10.095(8) means that the phrase “was
within the power of the party” refers to any and all evidence
that the party could have gathered at some point in the past,
regardless of how reasonable its decision not to gather that
evidence was.7
         Another textual interpretation is possible. ORS
10.095(8) begins with a conditional dependent clause followed immediately by a second dependent clause. It tells
    7
      If defendant were correct, every time a doctor reasonably decided not to
conduct another test that could have provided additional information, the doctor
would be subject to a less-satisfactory-evidence instruction in a subsequent medical malpractice action. Defendant identifies no decision, past or present, that
supports such an expansive interpretation of ORS 10.095(8).
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 (2025)                                            413

the jury that, if weaker evidence “is offered,” when stronger
evidence “was within the power of the party,” it should distrust the weaker evidence. In that context, the phrase “was
within the power of the party” could refer simply to evidence
that was available at the time of trial—i.e., evidence that
was either in the party’s possession or within its power by
virtue of a subpoena or otherwise—but withheld. See West,

 (evidence in the police’s possession was
reasonably available to the district attorney and thus was
within the power of the state to offer at trial). After all, ORS
10.095(8) is an instruction that tells the jury how to evaluate
the evidence that was and was not put before it. Nothing in
the text of subsection (8) compels the more expansive reading that defendant urges.
         Ultimately, the text of ORS 10.095(8) can be read
either way. That is, it could refer to all evidence that was
within the party’s power to gather at some point in the past,
as defendant argues, or it could refer to evidence that was
available to be offered at trial but withheld. In interpreting a statute, we also consider its context. See Stephens
v. Czerniak, 

, 

 (2004) (“[T]ext
should not be read in isolation but must be considered in
context.”). Context includes the preexisting common law.
Id.; see Klamath Irrigation District v. United States, 

, 

 (2010) (looking to preexisting and
contemporaneous common law decisions to determine the
meaning of a 1905 Oregon statute).
         ORS 10.095(7) and (8) were originally part of Oregon’s
Deady Code. General Laws of Oregon, Civ Code, ch IX, title
IX, § 835 pp 355-56 (

-64); see State v. Payne, 

, 

 (2020) (so stating). Those statutory
instructions were a common feature of the legal landscape
when Oregon adopted them. See, e.g., Clifton v. United States,
45 US (4 How) 242, 245-48, 

 (1846) (discussing
a variation on ORS 10.095(8)); Blatch v. Archer, 98 Eng Rep
969 (1774) (discussing the maxim codified as ORS 10.095(7));
William David Evans and Robert Joseph Pothier, 2 Treatise
on the Law of Obligations, or Contracts 116 (2d American ed
1839) (discussing what is now codified as ORS 10.095(8)).8
   8
     Evans translated Pothier’s treatise on contracts from its original French
and added, among other things, an appendix discussing the law of evidence.
414                                                    State v. Wildeboer

         The Court’s decision in Clifton illustrates the
understanding of the nineteenth-century instruction now
codified as ORS 10.095(8). In Clifton, the government sought
to forfeit goods imported from England because the claimant had fraudulently understated the cost of those goods
on invoices he submitted to customs officials. See 

. Under the then-applicable procedure, the government initially had to establish probable cause that the cost
of the goods had been fraudulently understated. Id. at 244
(explaining that that issue was for the court). If the court
found that the government had established probable cause,
then the burden shifted to the claimant to prove to a jury
that the goods had been invoiced at their actual cost. Id.
          The evidence in Clifton showed that the claimant
could have subpoenaed the person who had invoiced the
goods to him; that is, it was “in the claimant’s power to
have produced evidence of the real state of [that person’s]
accounts and transactions with all the parties in England.”
Id. The claimant, however, did not produce that evidence at
trial.9 Id. The trial court accordingly instructed the jury,
over the claimant’s objection:
    “that the claimant knew from whom he had bought the
    goods, and what was their actual cost, and yet had not produced this testimony, or accounted for its absence; that to
    withhold testimony which it was in the power of the party
    to produce, in order to rebut a charge against him, where it
    is not supplied by other equivalent testimony, might be as
    fatal as positive testimony in support or confirmation of the
    charge. And that if the claimant had withheld testimony of
    his accounts and transactions with these parties (meaning
    the foreign houses from whom he had purchased the goods),
    the jury were at liberty to presume that, if produced, they
    would have operated unfavorably to his case.”
Id. at 246 (parenthetical in original).


Evans’ discussion of the law of evidence appears to have garnered as much, if not
more, attention than Pothier’s discussion of contracts. See Clifton, 

(quoting a discussion from “Evans’ Pothier” regarding an instruction similar to
the one codified as ORS 10.095(8)).
    9
      Instead, the claimant offered testimony from local merchants, who estimated the value of the goods. Clifton, 

.
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         The Court held that the instruction correctly stated
established law. Id. at 248. It reasoned that the presumption
“exists in full force and effect against the party withholding
the better evidence; especially when it appears, or has been
shown, to be in his possession or power.” Id. at 247-48. The
Court’s use of the word “withholding” is telling. It assumes
that the evidence the claimant withheld was available to
be offered at trial, either because it was in the claimant’s
possession or power. That is, the evidence regarding “the
real state of [the claimant’s] accounts and transactions with
all the parties in England” was available at the time of
trial and within the claimant’s power because, among other
things, he could have subpoenaed either the documents or
the witness to testify. See id. at 244.
         Clifton does not state, as defendant argues, that the
phrase “was within the power of the party” includes all evidence that a party could have but did not gather at some
point in the past. Rather, the phrase describes evidence that
was available to be offered at the time of trial either because
it was within the party’s possession or power to obtain by
subpoena or otherwise. See United States v. Reyburn, 31 US
(6 Pet) 352, 368, 

 (1832) (explaining that “[t]he evidence must be attainable, or within the power of the party
who is called upon to produce it”).10
         A law review article published in 1884 contains an
extensive survey of federal, state, and English cases discussing the effect of withholding evidence that was within a party’s possession or power. See John D. Lawson, Note, The Effect
of Withholding, Suppressing, and Manufacturing Evidence in
Civil Causes, American L Rev 185 (Mar-Apr 1884). Citing
cases that both precede and were contemporaneous with
     10
        The question in Reyburn involved a version of the common law best evidence rule—namely, whether secondary evidence of a commission allegedly given
by a foreign government to the captain of a privateer was admissible. See 

. In that context, the Court considered whether it was “within the power of
the [government]” to produce the commission at trial. See id. at 368. The Court
held that it was not because the government could not subpoena or otherwise
obtain the commission and thus could not offer it at trial. Id. The common law
version of the best evidence rule at issue in Reyburn and the instruction codified in ORS 10.095(8) stem from a common source. See Clifton, 

(explaining that the instruction at issue in that case, which is a variation on the
instruction set out in ORS 10.095(8), is a derivative form of the best evidence
rule); accord Evans and Pothier, 2 Treatise at 116.
416                                                      State v. Wildeboer

the enactment of the Deady Code, the note explains that a
presumption similar to the one set out in ORS 10.095(8) is
appropriate when a party withholds superior evidence that
was available to be offered at trial because it was within
the party’s possession or power. See id. at 186-96. The preexisting and contemporaneous cases discussed in the note
did not go further, however, and extend that presumption
to instances when the party could have gathered arguably
superior evidence in the past but reasonably did not do so. As
the note explains, when there is no proof “that a party has
withheld evidence, the non-production of better evidence,
more full and definite than [the party] presents, raises no
presumption against [the party].” Id. at 197 (citing Schnell
v. Toomer, 56 Ga 168 (1876)).11
         Interpreting the text of ORS 10.095(8) in context,
we conclude that ORS 10.095(8) is consistent with and supports our decision in McNassar. Indeed, McNassar appears
to be more favorable to defendant than the text and context
of ORS 10.095(8) require. Specifically, McNassar left open
the possibility that, even if evidence was not within a party’s possession or power at the time of trial, the instruction
in ORS 10.095(8) should still be given if the party could
have but did not gather evidence in the past because it could
have been adverse.12 At a minimum, we cannot say that the
text of ORS 10.095(8), read in context, demonstrates that

     11
        In Schnell, the Georgia Supreme Court held that the trial court properly
declined to give an instruction similar to ORS 10.095(8). The court explained:
     “There was no evidence before the jury that the defendants held back anything in their power. The evidence they produced was not quite certain, but it
     did not appear that, at the time and under the circumstances, the defendants
     could have made the matter any more clear.”
56 Ga at 171. The relevant events had happened some time earlier, and the defendants had no better evidence in their power at the time of trial. Id.
     12
        The closest analogue historically to the qualification in McNasser comes
from lost evidence cases. Ordinarily, if a party possessed superior documentary
evidence but lost it before trial, the presumption resulting from withholding
superior evidence was not appropriate. See Lawson, American Law Review at
188-89, 196. However, in Attorney General v. Dean and Canons of Windsor, 53
Eng Rep 520, 531 (1858), the court was careful to note that there was no suggestion that the Dean of Windsor had willfully destroyed a lost copy of a signed trust
document, which could have provided superior proof. McNassar’s suggestion that
the instruction set out in ORS 10.095(8) might be appropriate if a party had not
gathered evidence in the past because the evidence could have been adverse may
reflect a similar concern.
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 (2025)                                              417

McNassar was “plainly wrong” and, for that reason, should
be overruled. See State v. Civil, 

, 

 (2017) (stating the standard for overruling our
statutory interpretation cases). Put differently, defendant’s
interpretation of ORS 10.095(8)—that it applies whenever a
party failed to gather “superior and more satisfactory” evidence in the past—is too broad.
         That leaves defendant’s alternative argument. She
argues that the trial court erred in not giving her requested
instruction because, viewing the evidence in the light most
favorable to her, the jury reasonably could have inferred that
the trooper did not ask for a blood draw to avoid developing
adverse evidence. Even if the jury could have drawn that
inference, the trial court’s ruling declining to give defendant’s requested instruction will be upheld if the instruction
did not correctly state the law. See State v. Nefstad, 

, 542 n 11, 

 (1990) (applying that rule);
Hall v. The May Dept. Stores, 

, 

 (1981) (same). As explained below, it did not.
         Defendant’s requested instruction would have told
the jury that, in evaluating the state’s evidence, it “may
… consider the power of the state to gather and produce
evidence.” It then would have told the jury that, if it found
that the state had offered “weaker and less satisfactory [evidence] than other stronger and more satisfactory evidence
that the state could have offered, [the jury] should view the
weaker and less satisfactory evidence with distrust.”13
         Defendant’s requested instruction, if given, would
have permitted the jury to find that the presumption stated
in ORS 10.095(8) applies any time that the state could have
gathered “superior and more satisfactory” evidence in the
past without regard to the state’s reasons for not gathering
that evidence. In that respect, her requested instruction is
directly at odds with our opinion in McNassar. We held in
   13
      Defendant’s requested instruction stated in full:
       “The state has the burden to establish the guilt of the defendant beyond a
   reasonable doubt. When you evaluate the state’s evidence, you may also consider the power of the state to gather and produce evidence. If the evidence
   offered by the state was weaker and less satisfactory than other stronger or
   more satisfactory evidence that the state could have offered, then you should
   view the weaker and less satisfactory evidence with distrust.”
418                                                       State v. Wildeboer

McNassar that the presumption in ORS 10.095(8) does not
apply when the state failed to gather “superior and more
satisfactory evidence” for a legitimate reason, unrelated to
a desire to suppress unfavorable evidence. See 

. For that reason alone, defendant’s requested instruction was not legally correct, and the trial court did not err in
declining to give it.14
           Affirmed.




    14
       As explained above, the jury must make two predicate findings before it
can apply the presumption stated in ORS 10.095(8). It must find initially that a
party has offered “weaker and less satisfactory” evidence. Additionally, it must
make one of two alternative findings: (1) the party withheld “stronger and more
satisfactory” evidence that was available to be offered at the time of trial because
it was in the party’s possession or power; or (2) if the stronger evidence was not in
the party’s possession or power at the time of trial, the party had not gathered or
obtained the stronger evidence because it could have been adverse. In this case,
no one claims that the state could have offered a blood test at trial; any evidence
of drugs in defendant’s blood dissipated shortly after her arrest. Only the second alternative potentially applied here, but defendant’s requested instruction
on that point was not legally correct. Given that conclusion, we need not decide
whether her requested instruction on the first alternative was or was not legally
correct.