372 February 19, 2026 No. 131
This is a nonprecedential memorandum opinion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.
KYLE JAMES MECHAM,
Defendant-Appellant.
Crook County Circuit Court
23CR25788; A183477
Wade L. Whiting, Judge.
Submitted December 4, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla E. Edmondson, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
SHORR, P. J.
Affirmed.
Nonprecedential Memo Op: 347 Or App 372 (2026) 373
SHORR, P. J.
Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010, advancing two assignments of error. In his first
assignment, defendant argues that the trial court erred by
overruling his objection to the admission of testimony by a
detective that the symptoms used in the drug recognition
evaluation (DRE) protocol are the same symptoms used by
those in the medical field to determine whether a person is
ill or impaired. In his second assignment, he argues that
the court erred by refusing to give Uniform Criminal Jury
Instruction (UCrJI) 1030, the less-satisfactory-evidence
instruction, when the state chose not to present the detective’s body-camera recording of the DRE evaluation. We
agree with the state that any error in admitting the challenged testimony was harmless and that the court did not
err in failing to give the requested instruction. We therefore
affirm.
Defendant was pulled over after Officer Yanes saw
him driving a truck with expired tags. Yanes, who knew
defendant from previous contacts with him, observed physical signs—clammy skin; sweating despite the cold, windy
weather; a dazed or sleepy demeanor; and pupils that were
“overly dilated” and did not constrict with light—that led
Yanes to believe that defendant was impaired, and he
asked defendant to get out of the vehicle. During the ensuing investigation, a “tooter”—i.e., a straw or pen casing for
smoking heroin or fentanyl—fell from defendant’s pocket,
and defendant admitted that he had smoked fentanyl before
the stop; he later admitted to Yanes that he would use methamphetamine to “balance himself out” after smoking fentanyl. Yanes administered field sobriety tests, concluded
that defendant was under the influence of intoxicants, and
arrested him. At the county jail, defendant provided a urine
sample, which ultimately tested positive for methamphetamine, fentanyl, and metabolites of those drugs. Defendant
also agreed to submit to a DRE at the jail, which was conducted by Detective Zamora and included, among other
tests, a walk-and-turn test and a one-leg stand test; he also
checked defendant’s vital signs. During that evaluation,
374 State v. Mecham
defendant admitted that he used methamphetamine and
fentanyl, and that he had last used fentanyl a couple of
hours before the stop. He told Zamora that he smoked about
5 to 10 pills a day, although he did not say how many he had
smoked that day. Zamora concluded that defendant showed
poor coordination and was impaired. Based on the totality
of his observations, Zamora concluded that defendant was
under the influence of a central nervous stimulant, such as
methamphetamine.
At trial, the state first presented testimony from
Yanes regarding his training and experience on DUII stops
and conducting field sobriety tests, his observations of
defendant, and his conclusion that defendant was impaired
to a perceptible degree from controlled substances; it also
presented bodycam footage from Yanes that included defendant’s admissions to using drugs and showed defendant
during those field sobriety tests.
The state then offered testimony from Zamora.
During that testimony, and over defendant’s objection,
Zamora answered affirmatively when asked whether the
DRE protocol employed “the same symptoms and DRE
symptomology that’s used by medical professionals for purposes of determining whether a patient is ill versus under
the influence of intoxicants.” The prosecutor then continued
to question Zamora about his administration of the DRE
and his conclusion that defendant was impaired by controlled substances, but the state did not offer into evidence
the bodycam footage of the DRE. On cross-examination,
Zamora acknowledged that he had not asked defendant
about “his most recent meth use.”
Based on the state’s choice not to offer Zamora’s
bodycam footage, as well as the fact that defendant had not
been asked about the last time that he had used methamphetamine, defendant requested that the court give UCrJI
1030, the “less satisfactory evidence” instruction. That
instruction 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
Nonprecedential Memo Op: 347 Or App 372 (2026) 375
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.”
The court refused to give the instruction, on the ground that
there was nothing in the record to give rise to an inference
that “the State’s trying to hide something by not showing
that evidence.”
The jury ultimately found defendant guilty, and he
now appeals the resulting judgment. In his first assignment
of error, he contends that the court erred by overruling his
objection to Zamora’s testimony that the DRE protocol uses
“the same symptoms and DRE symptomology that’s used by
medical professionals for purposes of determining whether
a patient is ill versus under the influence of intoxicants.”
According to defendant, Zamora’s specialized knowledge
about evaluating symptoms within the DRE protocol did not
qualify him to testify about how the same symptoms are
evaluated in the medical field. The state responds that the
court did not err in admitting the testimony but that, in any
event, the admission of that testimony was harmless.
We do not address the merits of the parties’ arguments regarding admissibility of the challenged testimony
because we agree with the state that any error would have
been harmless. See State v. Gibson, 338 Or 560, 576,
113 P3d
423, cert den,
546 US 1044 (2005) (“Article VII (Amended),
section 3, [of the Oregon Constitution] requires an appellate
court to affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error affected
the verdict.”). The jury more than once heard testimony,
without objection from defendant, that the DRE protocol was
accepted by the medical community. Immediately before the
challenged testimony, Zamora had been asked, “And based
on your training and experience, do you know where the
DRE symptomatology or indicators has its foundations?”
Zamora responded, without objection from defendant, “From
law enforcement, the medical field.” And later, again without
objection from defendant, Zamora responded affirmatively
when asked “whether this program [the DRE] has found general acceptance in the medical and scientific community.”
376 State v. Mecham
To the extent that the jury would have appreciated
a difference between the unchallenged testimony about the
medical profession accepting the DRE and the challenged
testimony about medical professionals using the same symptoms and symptomology as the DRE, there is little likelihood
that it would have affected the jury’s verdict. That is particularly true where there was so much additional evidence
of defendant’s impairment that did not depend on the DRE
or its medical basis, including defendant’s admissions about
smoking fentanyl and taking methamphetamine to balance
himself out; the positive drug test results; testimony from
Yanes that defendant’s face and skin were clammy, that he
was sweating on a cold, windy night, that he appeared overly
relaxed, had overly dilated pupils that did not constrict with
light, and that he performed poorly on the field sobriety tests,
including the “walk and turn” test; Yanes’s testimony that
defendant’s demeanor on the night in question was different
from when he had seen him on prior occasions when he was
not under the influence of controlled substances, and that it
was “obvious” to Yanes that defendant was under the influence of controlled substances; and the video footage from
Yanes’s bodycam, which would have allowed the jurors to
assess defendant’s performance on the “walk and turn” test
for themselves. Thus, we reject defendant’s first assignment.
In his second assignment, defendant argues that
the trial court was required to give his requested less-satisfactory-evidence instruction, UCrJI 1030, because the
state had stronger and more satisfactory evidence available in the form of Zamora’s bodycam footage but chose not
to present it. Defendant’s argument has two components.
First, he argues that the rule applied by the trial court—
that the less-satisfactory-evidence instruction is proper only
when it appears that a party is trying to hide something—
derives from a line of Court of Appeals cases beginning with
State v. McNassar, 77 Or App 215,
712 P2d 170, rev den,
300 Or 704 (1986), that are plainly wrong and should be
overruled. Second, he argues that, even if the court were
to adhere to McNassar, defendant was still entitled to the
instruction because the record permits an inference that the
video would have been adverse to the state. For the reason
discussed below, we reject both of those arguments because
Nonprecedential Memo Op:
347 Or App 372 (2026) 377
defendant’s proposed instruction was not a correct statement of law in this circumstance.
Defendant’s arguments are foreclosed by State v.
Wildeboer, 338 Or App 404, 417,
566 P3d 1149, rev allowed,
374 Or 188 (2025), which was decided after defendant filed
his opening brief. In Wildeboer, the defendant in a DUII case
argued that the trial court was required to give UCrJI 1030
in a circumstance in which the police had obtained a urine
sample but not a blood draw.
Id. at 409. The defendant contended that the presumption described in UCrJI 1030 and
drawn from ORS 10.095(8) applied whenever a party failed
to gather superior and more satisfactory evidence in the
past.
Id. at 412. We held that the defendant’s construction
of ORS 10.095(8) could not be reconciled with our holding in
McNassar that “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.”
Id. We declined to overrule McNassar in
that regard and therefore held that UCrJI 1030 was not a
correct statement of the law, because it “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.”
Id. at 417-18. “For that reason alone, defendant’s
requested instruction was not legally correct, and the trial
court did not err in declining to give it.”
Id. at 418.
In this case, although defendant’s arguments on
appeal focus on the failure to produce Zamora’s bodycam
footage, he also sought the instruction based on the state’s
failure to gather evidence related to methamphetamine
use—that “nobody asked my client when the last time he
did meth was, they could have gathered that evidence” but
did not. In light of our conclusion in Wildeboer, defendant’s
requested instruction was not legally correct and would
have permitted the jury to apply the presumption without
regard to the state’s reasons for not gathering the evidence,
and the trial court did not err by declining to give it.
Affirmed.
