State v. Ortiz

No. 758                    August 27, 2025             37

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 STEPHANIE ANDREA ORTIZ,
                      Defendant-Appellant.
                 Josephine County Circuit Court
                      20CR23850; A175738

  On remand from the Oregon Supreme Court, State v.
Ortiz, 

, 

 (2024).
   Brandon S. Thueson, Judge.
   Submitted on remand September 18, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the answering brief for respondent. On
the supplemental brief was Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Joanna
L. Jenkins, Assistant Attorney General.
   Before Shorr, Presiding Judge, Pagán, Judge, and
O’Connor, Judge.*
   SHORR, P. J.
   Reversed and remanded.
   Pagán, J., dissenting.




______________
   * O’Connor, Judge vice Mooney, Senior Judge.
38   State v. Ortiz
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           SHORR, P. J.
         This case is before us on remand from the Oregon
Supreme Court. State v. Ortiz, 

, 

(2024) (Ortiz II). Defendant initially appealed following her
conviction for driving under the influence of intoxicants
(DUII), ORS 813.010(4), and we reversed and remanded
based on her second assignment of error. State v. Ortiz, 

, 

 (2023), rev’d, 

, 

 (2024) (Ortiz I). In her second assignment of error,
she contended that the trial court plainly erred in admitting a police officer’s testimony that the field sobriety tests
(FSTs) that the officer had administered were scientifically
validated.1 In our prior opinion, we concluded that Officer
Miguel had presented scientific evidence when she testified
that the FSTs were “standardized” tests that are “designed
to determine impairment” and, more significantly to us,
had been “supported by studies proving their validity.” Id. at
138-39. We concluded that the trial court had plainly erred
in admitting that testimony without a proper foundation,
and we then exercised our discretion to correct that plain
error. Id. at 140-41. As a result, we reversed the trial court’s
judgment and remanded.2
         The Supreme Court took review. That court did not
reach the merits or decide whether any alleged error was
plain. It acknowledged that “it is possible that a jury could
have understood from the terminology that Miguel used in
describing the FSTs that they were sufficiently grounded in
science to require an additional foundational showing, as
the Court of Appeals concluded.” Ortiz II, 

-
70. Instead, it concluded that we had erred in misapplying
the factors for exercising our discretion to decide the plain-error issue. 

.3 It remanded to us to determine again
    1
      As the Supreme Court noted, the FSTs at issue here were the walk-and-turn test and the one-leg-stand test. Ortiz II, 

 n 1. Those tests are
described in OAR 257-025-0020(1)(b) and (c).
    2
      As a result of our reversal on the second assignment of error, we did not
reach defendant’s first assignment of error in which she contended that the trial
court had erred in admitting the officer’s testimony that a certain number of
clues on the walk-and-turn test was consistent with other indicators of impairment and inconsistent with being sober. Ortiz I, 

.
    3
      Justice James, joined by two other justices, concluded that the particular
terms used by the officer “unquestionably invoke the aura of scientific grounding”
40                                                              State v. Ortiz

whether we should exercise discretion. Id. at 678. We now
do so, and again conclude that we should exercise our discretion to correct what we perceive as plain error under our
existing case law.
         Our plain-error analysis involves the consideration of separate tests, and the satisfaction of each test is
necessary to reverse on the basis of plain error. We first
decide whether the error is plain. If it is, we next determine
whether the error is not harmless. If both of those tests are
met, we only then proceed to decide whether to exercise our
discretion to correct the plain and not harmless error. See
State v. Horton, 

, 

 (2023)
(describing and following each of those steps).
         The Supreme Court did not reverse our prior conclusion that the error was plain. We, therefore, do not discuss that issue again in detail. An error is plain if it is “(1)
one of law, (2) obvious and not reasonably in dispute, and
(3) apparent on the record without requiring the court to
choose among competing inferences.” Ortiz II, 

(internal quotation marks omitted). The issue here, whether
testimony is presented as scientific evidence and requires
an appropriate foundation for admission, is an issue of law.
State v. Eatinger, 

, 639, 

 (2019).
We considered the error to be obvious because we did not
see a meaningful difference between the testimony in this
case and our prior case law where we held that similar testimony presented scientific evidence. Ortiz I, 

. See, e.g., State v. Reid, 

, 

 (2021) (holding that it was plain error to admit officer’s
testimony that the FSTs were “pass or fail” without proper
foundation because it would likely be perceived by the jury
as an objective scientific test and evidence); Eatinger, 298 Or
App at 642-43 (holding in a preserved context that the officer’s testimony that FSTs were scientifically validated and
“the product of scientific research” was scientific evidence);

and would be understood by a jury as based on principles of science. 

 (James, J., concurring). That group concluded that “[i]n light of our decisions,
as well as the Court of Appeals’ decisions discussed, that error was plain, obvious, apparent on the record, and not reasonably in dispute.” 

 That part of the
opinion was a concurrence, however, because the court was unanimous in its
conclusion that we had erred in exercising our discretion.
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State v. Beltran-Chavez, 

, 

(2017) (holding in a preserved context that an officer’s testimony that the defendant had “failed” the walk-and-turn
or one-leg-stand test was scientific because the jury would
perceive that evidence as scientific, objective, and based on a
numerical scoring system). The issue is also apparent on the
record without the need to consider competing inferences as
it was presented in testimony before the court.
         We turn to whether the error was harmless. Again,
the Supreme Court did not reverse our conclusion that the
error was not harmless—although it did fault us for considering a harmless standard during the final plain-error
step, whether to exercise discretion, which we discuss further below. As a result, we similarly do not discuss harmlessness in detail other than to note, as we did before and as
we discuss further below, that this was a close case in some
respects. We cannot say that the improper admission of testimony describing the FSTs as “standardized tests” that
are “designed to determine impairment” and supported by
“studies conducted to prove their validity”—when combined
with the officer’s testimony that defendant exhibited multiple clues of impairment on those tests—had little likelihood
of affecting the verdict. See State v. Davis, 

, 

 (2003) (stating that an error is harmless for the
purpose of Article VII (Amended), section 3, of the Oregon
Constitution if “there was little likelihood that the error
affected the jury’s verdict”).
         We therefore turn to whether we should exercise
our discretion to correct the plain error—the issue upon
which the Supreme Court reversed and remanded to us
after concluding that we had improperly applied the test for
exercising discretion. We pause, however, to note what we at
least intended, if we did not adequately convey, in our prior
opinion. The Supreme Court faulted us for comingling the
“harmless error” test, addressed separately above, with our
decision on whether to exercise discretion. That criticism is
fair. The court, however, further concluded that our decision
that the error “ ‘was not harmless’ … is not a legally sufficient reason to reverse on plain-error review.” Ortiz II, 372
42                                                             State v. Ortiz

Or at 671.4 In its analysis, the court treated our decision on
harmless error as the sole basis upon which we exercised
discretion to correct the plain error in this case. But the
initially stated and primary basis for our decision, if stated
briefly, is that we had exercised our discretion to correct
similar plain error in Reid. We stated, “[f]urther, as we did
in Reid, we also exercise our discretion to correct the error.”

. That is, we were relying on precedent
and applying the same underlying rationale in exercising
discretion in this case because we had exercised discretion
in what we perceived to be similar circumstances before.
         We reiterate that rationale as a primary basis for
our exercise of discretion here. Indeed, since Reid and the
issuance of the Supreme Court’s and our initial opinions in
Ortiz I, we have again exercised our discretion to correct
plain error regarding the admission of an officer’s scientific
testimony surrounding FSTs.5 See State v. Curtis, 

, ___ P3d ____ (2025) (exercising discretion
in part because the officer’s testimony that the FSTs were
standardized national tests and that two clues would indicate impairment was a grave error where the evidence of
impaired driving was “weak”); State v. Hall, 

, 

 (2024), rev den, 

 (2025)
(exercising discretion to correct plain error where the court
admitted without adequate foundation an officer’s testimony that the presence of a certain number of clues on the
    4
      The court later noted that “we have never stated that the Court of Appeals,
exercising its discretion on plain-error review, may reverse based solely on its
determination that an error is not harmless under the constitutional standard.”
Ortiz II, 

.
    5
      Judge Pagán contends that we should rely on the existing case law only in
determining whether there was plain error and not in exercising discretion. ___
Or App ___ (Pagán, J., dissenting) (slip op at 2). As we discuss below, we cite to
the case law as precedent because we are relying on those cases for their exercise
of discretion in what we believe to be similar circumstances that exist here. We
have regularly exercised our discretion to correct plain error based on our reliance on cases in which where we have previously exercised discretion in similar
circumstances. See State v. Velasquez-Orozco, 

, 

,
rev den, 

 (2017) (exercising discretion to correct plain error where we
had previously done so “for similar reasons” and “under similar circumstances”);
State v. Sanders, 

, 

, rev den, 

 (2017)
(same); State v. Wright, 

, 

 (2016) (same); State v.
Fleet, 

, 

 (2015) (same); State v. Chavez, 

, 

, rev den, 

 (2014) (same). The Supreme
Court has not instructed us to do otherwise.
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walk-and-turn and one-leg-stand tests indicated impairment); but see State v. Redman, 

, 

 (2025) (concluding that the trial court plainly erred in
admitting the officer’s testimony that two or more clues on
the FSTs indicate intoxication but not exercising discretion
because the defendant might have had strategic reasons
for not objecting, there was a low likelihood that the error
affected the verdict, and the trial court could have easily
corrected the error had it been alerted). Of course, each case
has a different record to be considered that may affect our
exercise of discretion, but our past exercise of discretion in
what we consider to be similar cases is precedent for our
exercise of discretion here. If we previously concluded that
we should exercise our discretion to correct plain error in
what we perceive as similar circumstances, it might raise
issues about fairness, ad hoc application of our principles,
and the value and consistency of our precedent if we did
not continue to do so absent other circumstances militating
against taking review.
        Nevertheless, we also turn to some of the factors
bearing on our exercise of discretion as unique circumstances in cases that might persuade us not to follow our
prior path. The Supreme Court has identified the following
nonexclusive list of factors that we may consider in deciding
whether to exercise our discretion to correct plain error:
   “the competing interests of the parties; the nature of the
   case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention;
   and whether the policies behind the general rule requiring preservation of error have been served in the case in
   another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an
   opportunity to correct any error.”
Ailes v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991). Applying those factors, we believe that the
competing interests of the parties, the nature of the case,
the gravity of the error, and the ends of justice favor our
exercise of discretion here. Defendant has a strong interest in ensuring that she is not convicted of a crime based,
in part, on inadmissible scientific evidence for which no
foundation is laid. On the other hand, when testimony is
44                                                             State v. Ortiz

scientific, the state may proceed so long as it lays a proper
foundation for the testimony.6 See Beltran-Chavez, 

 (noting that a conclusion that evidence is scientific only requires that the state lay an adequate foundation
for it to be admissible).
          Relatedly, we have previously concluded that “scientific evidence has manifest potential to influence the jury.”7

. Because of that persuasive force and its manifest potential to influence the factfinder, it is important to
ensure that it is not admitted without a proper foundation.
See State v. Brown, 

, 

 (1984)
(stating that scientific evidence may possibly “assume a posture of mythic infallibility in the eyes of a jury of lay[persons]” (internal quotation marks omitted)). Although the
particular scientific testimony in this case was not a focus
of the trial or of closing arguments, it is highly persuasive
evidence that can easily influence a jury. Here, it imbued
the officer’s testimony that defendant had exhibited multiple clues of impairment with the imprimatur of science.
         We conclude that the erroneous admission of the testimony had a significant potential to affect the jury’s verdict,
making the error grave and affecting the ends of justice. See
State v. Mello, 

, 

, rev den,

 (2024) (stating that the likelihood that an error
affected the verdict goes to its gravity and to the ends of justice). That is both because of the inherently persuasive force
of scientific evidence that is backed by “studies conducted to
prove their validity” and because there were aspects of this
case that were close. For instance, this case was not tried as
a per se impairment case based on defendant’s blood alcohol content (BAC). But the jury was told that defendant’s
BAC, approximately one hour and 15 minutes after the initial 9-1-1 call, was a .07, which is under the .08 legal limit
for a per se impairment case. See ORS 813.010(1)(a), (c) (.08

     6
       We note, as we did previously, that we question in this case whether the
officer could have provided that foundation based on her prior training and experience with FSTs. Ortiz I, 

.
     7
       Of course, if the Supreme Court were to conclude on the merits that the
particular evidence here was not scientific or was not obviously so, which it did
not say, that would both obviate the need to address the issue and call into doubt
that this evidence had manifest persuasive force.
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percent statutory reference point for driving under the influence of intoxicants). Further, although we acknowledge that
defendant admitted to the officer that she had had five beers
over the course of six and one-half hours, was “tipsy,” and
not in shape to drive at that moment, a jury could find that
the videos of her interview at the police station and of her
performing the FSTs does not show an obviously impaired
person. The officer testified to defendant’s possible signs of
impairment and mood swings during the interview. The
police bodycam video shows that defendant was upset, distracted, and speaking with others off camera. Defendant testified that she had been embarrassed to be doing the FSTs,
which occurred in a residential neighborhood on Easter in
front of her family. Defendant’s mother, niece, and sister had
driven up in a car while she was doing the FSTs.
         Defendant further testified that she had been in a
domestic “altercation” with her husband that day. Indeed,
the initial 9-1-1 call had been from a member of the public who had been concerned for defendant’s safety after the
witness heard a car screech, saw it stop at an odd angle in
her neighbor’s driveway, and then observed a man yank a
woman (later believed to be defendant) out of the car.8 There
was not a 9-1-1 complaint of drunken or impaired driving.
There were a number of nonalcohol-related factors that a
factfinder could find affected defendant’s responses to the
interview and tests.
          Judge Pagán accurately points out in his dissent
that defendant denied driving that day. It is inaccurate, however, to state that her only theory was that she had not been
driving or that she did not contest impairment to the jury.
As observed in our prior opinion, defense counsel argued in
closing that the jurors could find defendant not guilty either
because they had reasonable doubt that she had been driving
or, if they found she had been driving, because they had reasonable doubt that she had been under the influence of intoxicating liquor. Ortiz I, 

. Of course, as the
defense emphasized in closing, the state had to prove both.

    8
      Based on that evidence, defendant argued in closing that her behavior and
conduct during the interview was attributable to being assaulted earlier by her
domestic partner.
46                                               State v. Ortiz

         We acknowledge that the error did not come to the
court’s attention and that the policies behind the general
rule requiring preservation of error have not been served in
another way. Ailes, 

 n 6. That factor, however,
is often true in plain-error cases where no party objected
to the admission of evidence, including in Reid where we
exercised discretion despite the fact that the defendant had
earlier objected to one portion of the testimony but later
failed to object to the particular scientific evidence at issue.
Reid, 

. Further, as the Supreme Court
concurrence noted in this case, trial courts serve a special
gatekeeping function when it comes to scientific evidence,
which requires that they ensure that “valid science and only
valid science that is relevant and helpful to the jury, enters
the courtroom.” Ortiz II, 

 (James, J., concurring) (emphasis in original). The trial court’s “obligation to
gatekeep the admission of scientific evidence in Oregon” is a
counterbalance to the general rule that favors the principles
of preservation and presents a unique circumstance that is
not present in nonscientific evidence cases. 

.
         We also do not perceive that defendant had any
strategic reason not to object to the evidence. See Mello, 

 (noting that “the possibility that [the] defendant made a strategic choice not to object” is a factor that we
may consider in deciding whether to exercise our discretion
to correct a plain error) (citing State v. Fults, 

, 

 (2007)); Redman, 

(declining to exercise discretion, in part, because the defendant might have had a strategic reason not to object to the
trooper’s testimony about the defendant’s score on the walk- and-turn and one-leg-stand tests).
         Applying both our precedent and the relevant Ailes
factors, we again exercise our discretion to correct the plain
error here. We do so despite our understanding that the
exercise of discretion should be made with “utmost caution,”
Ailes, 

, and should be “ ‘rare and exceptional,’ ”
State v. Gornick, 

, 

 (2006) (quoting
Hotelling v. Walther, 

, 

 (1944)). As
noted, we do so in part because we have previously exercised
discretion in similar circumstances, and the application of
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the Ailes factors to the circumstances here do not suggest a
different result.
         We appreciate that Judge Pagán would not exercise
discretion. That is a reasonable choice. But we believe it is
equally reasonable and a permissible exercise of our discretion to permit correction of the plain error in this case.
         In sum, we conclude, as we did before, that the
trial court plainly erred in admitting the scientific evidence
in this case without requiring the state to lay a foundation. Following the remand from the Supreme Court that
instructed us to consider anew whether we would exercise
discretion based on a proper application of Ailes, we again
conclude that we should exercise our discretion. As a result,
we again reverse on defendant’s second assignment of error.1
         Reversed and remanded.
         PAGÁN, J., dissenting.
         “[I]t is only in rare and exceptional cases that an
appellate court should reverse based on an error that had
not been raised in the trial court.” State v. Ortiz, 

, 

 (2024) (Ortiz II) (internal quotation
marks omitted). I believe the majority is misreading Ortiz II,
which emphasized the cautious and deliberate disposition our
court should have in the face of unpreserved assignments of
error. The Supreme Court’s unanimous majority, in my view,
emphasized the articulation aspect of the second step in Ailes
v. Portland Meadows, Inc., 

, 

 (1991), to
highlight how such an articulation would be the natural consequence of a deliberate approach concerned with the policies
underlying preservation. Emphasizing two cases, Inman and
Horton,2 where error was plain but we declined to exercise
plain error discretion—including in a vouching case—the
Supreme Court could not have a sent a stronger message.
         In response, the majority again cites State v. Reid,

, 

 (2021), in what appears to be
its second step of the Ailes analysis, as support to justify its

    1
      As before, we do not need to reach defendant’s first assignment of error.
Ortiz I, 

.
    2
      State v. Inman, 

, 

 (2015); State v. Horton, 

, 

 (2023).
48                                                              State v. Ortiz

decision to exercise discretion in this case. ___ Or App at ___
(slip op at 5). But that only compounds the error the Supreme
Court identified. First, to the extent that the majority in
this case intends to use precedent as a jurisprudential additional consideration in the second step of the Ailes analysis,
I think the majority is undercutting our preservation policies while also misplacing the use of precedent for plain
error cases. It undercuts our policies because it obviates the
need in future cases to object to an entire swath of evidence,
regardless of the merits of any objections or the particulars
of the cases, once we have reversed on similar grounds. To
the extent that precedent has a place in plain error analysis,
it should be for determining whether there was error in the
first instance and whether it was plain. But beyond that,
Ortiz II directs us to weigh the particulars of the case before
us.3 See Ortiz II, 

 (“[T]he rule against considering unpreserved errors will not be relaxed unless the court,
upon an examination of the entire record, can say that the
error is manifest and that the ends of justice will not be
otherwise satisfied.” (internal quotation marks omitted)).
         Defendant also argued, in their brief to the Supreme
Court on review, that the reliance on Reid and precedent
generally was appropriate, largely echoing the sentiments
the majority use today. But Ortiz II did not discuss Reid or
discuss the use of precedent in the way that the majority
suggests. I read that to conclude that the Supreme Court
has rejected that argument and the use of precedent as such
a foundation for exercising discretion after we have found
an error to be plain. Such an inference makes sense when
considering how much emphasis the Supreme Court made
of being able to articulate—in each case—how the ends of
justice justify reversing.
        If I were to follow Ortiz II as I read it, I would not
reach the issue of whether this testimony was scientific
because, considering the theories of the parties and the evidence against defendant, the testimony was harmless as it

     3
       As an aside, Reid is also inapt for such use because it involved a concession
by the state not only as to the error, but as to whether the court should exercise
its discretion, effectively removing any articulation of a critical analysis of the
particulars of the case from consideration on appeal. 

.
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had little likelihood of affecting the verdict.4 See Inman, 

 (“In determining whether any error was
grave, we consider the likelihood that the error affected the
outcome of the proceeding below.”).
         Even if it was not harmless, I would not exercise
discretion to correct the error. The majority argues that the
evidence at issue here—an officer testifying that the tests
she was trained to perform are nationally standardized and
subject to tests to measure their validity—was highly consequential because the evidence of defendant’s impairment
was not so overwhelming, and the jury would have had to
consider the field sobriety tests (FSTs) in their determination. But the majority ignores the defendant’s own theory
when weighing the gravity of the error. Defendant’s narrative was not that she had not been drinking, or even that
she was not impaired; her theory was that she had not been
driving. She admitted in a video, which included her performance on the FSTs, that she was not safe to drive. The state
presented eyewitness testimony of seeing defendant drive
erratically and provided footage of her interactions with law
enforcement. The state emphasized the use of the FSTs in
closing, but not their “nationally standardized” nature or
that they were subject to testing to measure their validity.
And, as noted previously, the use of the FSTs themselves
was not improper, nor was the jury’s viewing of the FSTs on
video.5 That is not to say that it was not error, but that even
if there was error related to how the FSTs were discussed,
the jury would still be able to use them in any event.6 That
leaves me to conclude that the gravity of the error is faint.
     4
       Recently, we did not find any error to be plain when a trial court allowed an
officer to testify that FSTs were “generally accepted and accurate ways to determine
intoxication” and when the trooper referred to “validated” clues. State v. Redman,

, 

 (2025). The testimony in this case is far more similar to that testimony than to the undoubtedly scientific testimony in Reid.
     5
       I would also note that it is inherently illogical to suggest that, in an evidence-based system such ours, we would allow jurors to hear witnesses testify to
any sort of test or examination if we did not believe that the test was standardized and somehow subject to peer review and validity testing. I submit that most
jurors presumed such testimony, if the officer provided it or not.
     6
       Though neither party has addressed it, it is also inherently prejudicial to
allow jurors to hear and see evidence relating to any sort of test without explaining to the jurors what the thresholds are for that test. In the absence of clear
explanations, a juror is left to decide on their own how many “clues” equate
with impairment. If the goal is to ensure that a factfinder is not presented with
50                                                             State v. Ortiz

         I would also consider whether—if defendant had
objected—-the state would have been able to provide further
evidence of the officer’s training, sufficient to lay a foundation
for the evidence in question. See id. at 934 (“We also consider
whether the policies behind the general rule requiring preservation of error have been served in the case in another way.”
(Internal quotation marks omitted.)). To reiterate the specific
error here: an officer testified as to the scientific nature of a
test he performed without foundation. Notably, in defendant’s
supplemental briefing arguing this point, they emphasize
that the officer’s testimony about her training was limited
and that the state had only listed two witnesses before trial.
But that argument highlights the specific problem this case
presents: had the state known that defendant was challenging
the qualifications of the witness to discuss FSTs, they might
have had an entirely different strategy below, including pretrial preparation and bringing other experts who could have
viewed the video as the jury did. We should be very cautious
to accept arguments about a potential record when counsel
was presented with different legal theories below. Unless
the majority is extending Reid and other such cases to hold
that an officer may never testify as to the scientific nature
of FSTs, which is not my understanding of State v. Eatinger,

, 

 (2019),7 then we must acknowledge that the record here does not clearly show that the state
would not have been able to present a proper foundation for
the testimony had an objection been made.
         Further, defendant might have had a strategic reason not to object. See State v. Fults, 

, 

 (2007) (in considering whether to exercise discretion to correct plain error, we may consider the possibility
that the defendant had a strategic reason not to object). As
noted, defendant’s theory was that she was not driving. If
defendant was focusing on her narrative about whether the
state could prove she was driving, it is reasonable for counsel to want to downplay or avoid evidence about impairment
evidence that may be used improperly, the solution offered by the majority is more
harmful than helpful.
    7
       Eatinger made note of the various ways an officer could have qualified their
testimony about FSTs to qualify under OEC 702 and provide an opinion to the
jury, such as the existence of specialized literature or other Brown/O’Key factors.
298 Or App at 645.
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to avoid highlighting the state’s strengths. In that context,
knowing that an officer could lay the foundation for an
opinion under OEC 702, which is far more damaging for a
defendant than simply showing the FSTs to the jury, counsel might have wanted to avoid providing the state with a
chance to unnecessarily bolster its case. Indeed, had the
state offered evidence of credentials, defendant might have
even stipulated to the witness being able to offer an opinion
under OEC 702 to avoid qualifying the witness in front of
the jury.8
         Lastly, looking at the ends of justice, see Inman, 

, considering that the error here was not grave
because it would likely not have affected the verdict based
on defendant’s theory, and that the record might have been
corrected had defendant objected, I would avoid an unnecessary retrial here. Just as in Inman, when I “consider those
factors together … along with the Supreme Court’s admonition to exercise utmost caution in addressing unpreserved
claims of error,” I would conclude that the ends of justice
would not be served by exercising discretion in this case. 

(internal quotation marks omitted).
         But, instead, the majority continues our court’s pattern of lowering the threshold for considering and reversing
on unpreserved claims of error. I would point our sails in
another direction.
          I end with one final suggestion for my colleagues
at all levels. I balk at the idea that a trial judge has such
limited options when confronted with testimony such as
this. We often suggest that a trial judge may only strike
the testimony, give a curative instruction, or declare a mistrial, which, in my view, detaches our appellate courts from
the personal nature of trials. I would rather suggest that
all trial judges simply to the following: pause, ask the jury
to leave, and then inquire of counsel whether they intended
to object, and if not, why not. Do so on the record, and, if
not satisfied with counsel’s answer, employ the various tools
    8
      Compare this case with State v. Curtis, 

, ___ P3d ___ (2025),
in which we exercised discretion in a similar case, but the defendant’s theory was
that they had not been impaired at all. In that scenario, it may easily be said to
be unreasonable to fail to object to any potentially improper evidence the state
offers about impairment.
52                                             State v. Ortiz

we have to ensure that the record is clear. Had the judge
done so in this case, many different outcomes are reasonable
to imagine. If counsel had said they simply missed it, and
yes, they intended to object, it is not unreasonable to imagine that the state could have either asked different questions or called another witness entirely, or the judge could
have easily stricken the answers and given a quick curative instruction. If they replied that they had not intended
to object, we likely would not be having this discussion to
begin with. Going forward, we can only hope to assist trial
judges by giving them guidance on what to do when such
testimony is presented before them and they must react. In
those instances, I would hope our jurisprudence suggests
that the trial court make a full record, rather than simply
select from a narrow series of options. Exercising our discretion and reversing here encourages the latter.
        I would affirm, and I respectfully dissent.