486 March 5, 2025 No. 192
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEFFREY JAMES MICHAEL TSCHIDA,
Defendant-Appellant.
Washington County Circuit Court
22CR25351; A180457
Eric Butterfield, Judge.
Submitted October 15, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla Edmondson, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Joanna L. Jenkins,
Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Hellman, Judge, and
Mooney, Senior Judge.
HELLMAN, J.
Affirmed.
Nonprecedential Memo Op: 338 Or App 486 (2025) 487
HELLMAN, J.
Defendant challenges his conviction for driving while under the influence of intoxicants (DUII), ORS
813.010. In three assignments of error, defendant challenges
the admission of body camera video that, in defendant’s view,
showed his refusal to perform field sobriety tests (FSTs),
cross-examination concerning his refusal, and the denial of
his motion for a mistrial. For the reasons below, we affirm.
Body camera video. In his first assignment, defendant argues that the trial court plainly erred in allowing
the state to introduce body camera video evidence of his
refusal to perform FSTs because “[u]nder ORS 813.135 and
ORS 813.136, [the deputy’s] failure to advise defendant of the
consequences of his refusal rendered his refusal inadmissible.” Because defendant did not object on that ground when
the video evidence was published for the jury, we review for
plain error.
“An error constitutes a plain error if (1) it is an error of
law; (2) the legal point is obvious, not reasonably in dispute;
and (3) the error appears on the record, meaning that the
appellate court must not need to go outside the record to
identify the error or choose between competing inferences,
and the facts constituting the error must be irrefutable.”
State v. Wiltse, 373 Or 1, 3,
559 P3d 380 (2024) (internal
quotation marks omitted). “If an error constitutes a plain
error, then, at the second step of the plain-error analysis, an
appellate court determines whether to exercise its discretion to reverse based on the error.” Id. at 10.
During the state’s case-in-chief, the trial court
admitted into evidence a redacted version of the video from
the arresting deputy’s body camera, and the state published
it for the jury. In the video, the deputy asks defendant if he
would take FSTs. Defendant answers, “Well. I don’t know
how they will turn—the tests will turn out.” However, the
transcript of the proceedings prepared for this appeal displays defendant’s answer as “No. I don’t know how they will
turn—the tests will turn out.” (Emphasis added.) Defendant
relies on that transcript text to argue that the state impermissibly introduced evidence of his refusal to take FSTs.
488 State v. Tschida
We conclude that the trial court did not plainly err.
The evidence that the state presented at trial was the body
camera video itself—not a transcript of the video—so the
jury heard defendant’s recorded answer, “Well. I don’t know
how they will turn—the tests will turn out.” Therefore, it is
not “obvious” or beyond reasonable dispute that defendant’s
answer was a clear statement of refusal to perform FSTs. In
addition, the error is not apparent on the face of the record
without having to “choose between competing inferences.”
Wiltse, 373 Or at 3. Indeed, the state and defendant had
pretrial discussions about redacting the video and defendant could have declined to object to the statement precisely
because his answer was not a clear statement of his refusal to
perform FSTs. See
id. at 21 (explaining that, in some cases,
an asserted error may not be apparent on the face of the
record when the defendant may have “taken steps to authorize the trial court’s actions”). Because the trial court did
not plainly err when it admitted the video evidence of defendant’s statement, “Well. I don’t know how … the tests will
turn out,” we reject defendant’s first assignment of error.1
Cross examination about refusal to perform FSTs.
In his second assignment of error, defendant argues that
the trial court erred when it permitted the state to impeach
him with his refusal to perform FSTs. Specifically, defendant argues that the deputy violated ORS 813.135 and ORS
813.136 and Article I, section 12, of the Oregon Constitution.2
1
For the same reason, we reject the argument in defendant’s supplemental
opening brief, which pertains only to his first assignment of error. Although that
argument focuses on the deputy’s request for defendant to perform FSTs, the
underlying premise of that argument is that the trial court admitted evidence of
defendant’s refusal to perform FSTs during the state’s case-in-chief.
2
ORS 813.135 provides in part that a person who refuses to consent to FSTs
“shall be informed of the consequences of failing to physically submit to those
tests under ORS 813.136.”
ORS 813.136 provides:
“If a person refuses or fails to physically submit to field sobriety tests
as required by ORS 813.135 after the person has been informed of the consequences of refusing to submit, evidence of the person’s refusal or failure
to submit is admissible in any criminal or civil action or proceeding arising
out of allegations that the person was driving while under the influence of
intoxicants.”
Article I, section 12, provides that “[n]o person shall be put in jeopardy twice for
the same offense, nor be compelled in any criminal prosecution to testify against
himself.”
Nonprecedential Memo Op: 338 Or App 486 (2025) 489
We begin with defendant’s statutory argument.
Assuming, without deciding, that evidence of defendant’s
refusal to perform FSTs was inadmissible on statutory
grounds, we conclude that defendant opened the door to
admission of that evidence. During defendant’s direct examination, the following exchange occurred:
“[DEFENSE COUNSEL]: [Defendant], were you willing to do whatever—
“[DEFENDANT]: Yeah.
“[DEFENSE COUNSEL]:—the hospital (indiscernible)?
“[DEFENDANT]: Yeah. I wanted to clear my name,
because—
“[DEFENSE COUNSEL]: If they asked to get a blood
draw, would you have—
“[DEFENDANT]: Yeah. If need be.
“[DEFENSE COUNSEL]: Okay.
“[DEFENDANT]: Like I said, I’d do anything to clear
my name.”
Because “defendant’s own inquiry on direct examination into the contents of otherwise inadmissible statements
open[ed] the door to further inquiry on cross-examination
relating to those same statements,” State v. Miranda, 309
Or 121, 128,
786 P2d 155, cert den,
498 US 879 (1990), the
state was permitted to cross-examine defendant about that
refusal. Indeed, prohibiting those questions would have
misled the jury. See Laird C. Kirkpatrick, Oregon Evidence
§ 402.04, 188 (6th ed 2013) (“The courts have tended to allow
subsequent inadmissible evidence only in situations where
it is truly necessary to prevent unfairness or misleading of
the jury on a significant issue.”); see also State v. Apodaca,
291 Or App 268, 277,
420 P3d 670 (2018) (concluding that
the state could introduce evidence of a defendant’s prior bad
acts to “negate or counterbalance” a potentially misleading
impression created by the defendant’s cross-examination of
a witness). The trial court did not err.
We now turn to defendant’s constitutional argument
that his “refusal was obtained in violation of his Article I,
490 State v. Tschida
section 12, right against self-incrimination.” Citing State v.
Finonen, 272 Or App 589,
356 P3d 656 (2015), defendant contends that the state could not impeach him with his refusal
to take the tests—even if he opened the door—because his
refusal was the result of invoking his right against self-incrimination under Article I, section 12.3 We first observe
that this record is not clear whether defendant did, in fact,
invoke his Article I, section 12, rights, because there is no
testimony or evidence about what defendant said to the deputy. Instead, we have only the attorneys’ conflicting representations of what occurred.
But even assuming that defendant invoked his
Article I, section 12, rights, the trial court did not err in permitting the cross-examination. A prosecutor can impeach
a defendant with silence if the defendant opens the door by
calling into question the sufficiency of the police investigation or suggesting that the officers did not give defendant
an opportunity to provide exculpatory information. State v.
Clark, 233 Or App 553, 559-60,
226 P3d 120 (2010); State v.
Guritz,
134 Or App 262,
894 P2d 1235, rev den,
321 Or 560
(1995). Finonen is thus inapplicable because, unlike Finonen,
this case does not involve the use of defendant’s statements
that were obtained in violation of his constitutional rights.
Motion for mistrial. In his third assignment of error,
defendant argues that the trial court erred when it denied
his motion for a mistrial. We review for abuse of discretion
and we “will not reverse a conviction on that basis unless
the defendant was denied a fair trial.” State v. Schumacher,
315 Or App 298, 301,
500 P3d 698 (2021). As we explained
above, defendant opened the door to the impeachment testimony and there was no statutory or constitutional prohibition on its use. As a result, the trial court did not abuse its
discretion when it denied the motion for a mistrial.
Affirmed.
3
We observe that below defendant characterized the right that he invoked as
the “right to counsel.” Because the right to counsel and the right to silence under
Article I, section 12, are intertwined, we assume without deciding that defendant
preserved the claim he raises on appeal.
