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State v. Totland

Court of Appeals of Oregon

March 20, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
RONALD GARY TOTLAND, Defendant-Appellant.

          Submitted June 30, 2017.

          Harney County Circuit Court 150398CR; J. Burdette Pratt, Senior Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, fled the brief for respondent.

          Before Tookey, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.

         Case Summary: Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. On appeal, defendant contends that the trial court erred when it overruled a defense objection to the prosecutor's statements during closing arguments. Defendant argues that the statements improperly shifted the burden of proof from the state to the defendant. Held: The prosecutor's statements, taken in context, did not misstate the law and did not impermissibly shift the burden of proof. Therefore, the trial court did not abuse its discretion in overruling the defense objection.

         [296 Or.App. 528] EGAN, C. J.

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010.[1]We write solely to address defendant's first assignment of error: that the trial court erred when it overruled an objection to a statement by the prosecutor during closing arguments. Defendant contends that the statement improperly shifted the burden of proof from the state to defendant. For the reasons below, we affirm.

         Burns Police Officer Brewer stopped defendant's vehicle because he saw it cross over the fog line. Brewer told defendant that he had failed to stay within his lane. Defendant, who had two passengers in his car, told Brewer, "We were just bullshitting." Brewer asked defendant for his license, registration, and proof of insurance. Brewer noticed that defendant's speech was slurred and his eyes were red, watery, and bloodshot. Brewer also smelled the odor of alcohol. Brewer asked defendant if he had consumed any alcohol, and defendant said that, earlier that day, he had drank one beer with a cheeseburger. Brewer returned to his vehicle to check defendant's driving status and to call for backup to help conduct a DUII investigation.

         Next, Brewer asked defendant to step out of the car. Defendant did, but he stumbled and had to use the bed of the pickup to hold himself up. Brewer could smell a strong odor of alcohol coming from defendant's breath. When Deputy Heatherwick arrived as backup, she saw defendant swaying while he was standing. Brewer asked defendant if he would be willing to perform field sobriety tests. Defendant initially asked why he had to do that, but after Brewer again described the observations he had made and explained that he thought defendant might be too impaired to drive, defendant said, "What do you want me to do?" Brewer understood that as an agreement to do the tests.

         Before beginning the tests, defendant told Brewer that he had a bad left knee. Brewer first administered a [296 Or.App. 529] horizontal gaze nystagmus test. Defendant turned his head contrary to Brewer's instructions and held his breath because Brewer "didn't tell him he could breathe." Ultimately, defendant exhibited six out of six possible signs of impairment on that test. Brewer next began to administer the walk-and-turn test. However, defendant was unable to stay in the instructed position long enough to hear Brewer's instructions and watch a demonstration. Defendant also started the test before he was told to do so, was unable to walk heel-to-toe according to Brewer's directions, and raised his hands more than six inches away from his sides. During the test, defendant stopped and told Brewer that he was "having problems with his left knee" and "didn't think he could do the test on uneven ground." Brewer did not believe the ground was uneven and did not "notice any mounds or potholes or anything like that." But defendant said he "didn't feel comfortable taking the test," so Brewer stopped the test before defendant had completed it. Next, Brewer began to administer the one-leg stand, which involves standing on one leg for 30 seconds. Defendant put his foot down within 10 seconds and asked Brewer, "Why don't you just take me in?"

         At that point, Brewer asked defendant if he would "be willing to perform a couple of other tests that weren't as physical because of the complaints of his knee"-a counting test and an alphabet test. Defendant completed the tests but made mistakes in both. "Putting everything together," Brewer believed defendant was "too impaired to be operating a vehicle," so he arrested him for DUII and took him to the Harney County Jail. At the jail, Brewer asked defendant to take a breath test and advised him of the consequences for refusing to take the test. Defendant refused to take the test and said, "I had a beer with my cheeseburger. I can't pass the test."

         Defendant pleaded guilty to the violation of refusing to take a test for intoxicants, ORS 813.095, and went to trial on the charge of DUII. At trial, Brewer and Heatherwick testified. During closing arguments, the state emphasized that defendant did not complete two of the field sobriety tests. The prosecutor argued:

[296 Or.App. 530] "He doesn't complete the walk-and-turn. He chooses to not-he chooses to keep that evidence from the jury. He doesn't complete the one-leg stand. He chooses ...

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