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State v. Woodbury

Court of Appeals of Oregon

November 29, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RUSS ANGUS WOODBURY, Defendant-Appellant.

          Submitted January 31, 2017.

         Umatilla County Circuit Court CR140953 Lynn W. Hampton, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals from a judgment of conviction entered after a jury found him guilty on one count of driving under the influence of intoxicants. Defendant assigns error to the trial court's ruling that limited the testimony of a defense expert witness-a registered nurse-about defendant's traumatic brain injury (TBI). Defendant's theory at trial was that the trooper that arrested him misinterpreted defendant's TBI symptoms as signs of intoxication. Held: The trial court erred by not allowing defendant's expert to testify, under OEC 702, that defendant's behavior on a video recording of the field sobriety tests was consistent with her observations of patients she has worked with who have TBI. The error was not harmless.

         Reversed and remanded.

         [289 Or.App. 110] DEHOOG, P. J.

         Defendant appeals from a judgment of conviction entered after a jury found him guilty on one count of driving under the influence of intoxicants (DUII). ORS 813.010 (2009), amended by Or Laws 2017, ch 21, § 80.[1] Defendant assigns error to the trial court's ruling that limited the testimony of a defense expert witness-a registered nurse- about defendant's traumatic brain injury (TBI). Defendant's theory at trial was that the trooper that arrested him for DUII misinterpreted defendant's TBI symptoms as signs of intoxication. We agree with defendant that the trial court erred by not allowing his expert to testify that, based on her experience, defendant's behavior on a field sobriety test (FST) video was consistent with her observations of patients she has worked with who have TBI. Further, the error was not harmless. We reverse and remand.

         Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state. State v. Park, 140 Or.App. 507, 509, 916 P.2d 334, rev den, 323 Or. 690 (1996). In assessing whether an erroneous evidentiary ruling was harmless, however, we describe and review all pertinent parts of the record. State v. Eckert, 220 Or.App. 274, 276, 185 P.3d 564, rev den, 345 Or. 175 (2008).

         After receiving a complaint of poor driving, Trooper Routt of the Oregon State Police pulled over a truck matching the complainant's description. As Routt approached the truck, defendant stuck his head out of the window and began talking to the trooper. Routt noticed that defendant had a twitch on his cheek and sweat on his face, which Routt found odd because the temperature was a moderate 70 degrees and it was later in the evening. Routt described defendant's reflexes as exaggerated. Defendant was also wearing sunglasses, despite the fact that the sun had set [289 Or.App. 111] approximately 20 minutes earlier.[2] When the trooper asked, defendant denied taking any medication or drugs, drinking any alcohol, or having any medical conditions or serious physical injuries.

         Routt noted that defendant's speech was slurred, his demeanor was restless, he moved constantly, and he seemed irritable, anxious, and disoriented. Defendant's pupil size appeared normal, but his upper eyelids were droopy. After the trooper pointed out those observations to defendant, defendant told the trooper that he had suffered a head injury many years before.

         Routt asked defendant to perform voluntary FSTs, and defendant agreed. On the horizontal gaze nystagmus test, defendant showed no signs of impairment. On the walk and turn test, defendant stepped out of the starting position, missed stepping heel to toe, raised his arms for balance, and turned incorrectly, which Routt testified suggested impairment. Similarly, on the one-leg stand test, defendant demonstrated an inability to follow instructions, swayed from side to side, and raised his arms more than six inches from the side of his body. Routt then asked defendant to perform a modified attention test designed to test a person's internal clock. What defendant estimated to be 30 seconds was actually 28, which was "very close, " according to the trooper. During the test, however, Routt noticed defendant's rigid muscle tone and tremors throughout defendant's body. The trooper arrested defendant for DUII. The interactions between the trooper and defendant, including defendant's performance on the FSTs, were video recorded and played for the jury at trial.

         After arresting defendant, Routt searched defendant's car. He found a marijuana pipe. When the trooper asked defendant about the pipe, defendant stated that he had smoked marijuana at about 8:00 a.m. that day. Defendant later took a breath test that indicated that there was no alcohol in his system. Defendant declined to provide a urine sample. Routt believed that ...


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