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State v. Clarke

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
BEAU ALLEN CLARKE, Defendant-Appellant.

          Argued and submitted October 5, 2018.

          Curry County Circuit Court 15CR48691; Jesse C. Margolis, Judge.

          Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: During defendant's closing argument in his trial for driving under the influence of intoxicants, ORS 813.010(4), the trial court sustained the state's objection to defendant's mischaracterization of the evidence, then offered a clarifying instruction to the jury. The jury convicted defendant. Defendant appeals, assigning error to (1) the trial court's sustaining of the state's objection, (2) the court commenting to the jury that defendant had mischaracterized the evidence, and (3) the court's instruction that the arresting officer's testimony was admissible despite the officer's inability to offer expert opinion on defendant's state of intoxication. For assignments of error two and three, defendant requests plain error review under Aile's v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). Held: The Court of Appeals affirmed because defendant's first assignment of error was not preserved and defendant's second assignment of error was not plain. The court declined to exercise discretion under Aile's to review the third assignment of error because defendant played an active role in bringing about the alleged error.

         [300 Or.App. 75] Affirmed.

         [300 Or.App. 76] LAGESEN, P. J.

         A jury convicted defendant of driving under the influence of intoxicants, ORS 813.010(4). On appeal, defendant contends that the trial court erred in three respects: (1) by sustaining the state's objection to defendant's closing argument about the state's inability to supply a drug recognition expert (DRE) opinion; (2) by commenting to the jury that defendant's argument mischaracterized the evidence; and (3) by instructing the jury that the lack of a DRE opinion did not mean that the arresting officer "didn't perhaps observe other signs that would relate to impairment from controlled substance or alcohol" and that could form the basis for his lay opinion that defendant was intoxicated. Defendant, however, did not preserve his assignments of error and, for reasons to be explained, none warrants correction on plain-error review. Accordingly, we affirm.

         The relevant facts are procedural and not disputed. The state charged defendant with driving under the influence of intoxicants, ORS 813.010(4). At trial, the arresting officer, who was a drug recognition expert, was not permitted to offer an expert opinion on whether defendant was under the influence of intoxicants. That was because the officer had not performed a DRE evaluation of defendant at the time of his arrest. The trial court did allow the arresting officer to offer a lay opinion that defendant was under the influence of marijuana.

         On cross-examination, defendant sought to highlight the difference between a DRE expert opinion and a lay opinion and to emphasize that the arresting officer, although a DRE expert, was unable to opine as an expert that defendant was intoxicated. Explaining to the trial court his theory, defendant said: "[T]he State's trying to say a lay person can have this opinion about marijuana, but an expert cannot, which I think is all I want in, is that an expert needs information to give an opinion, a lay person doesn't. It's never made sense to me, but that's fine." (Emphasis added.) The state was concerned that this line of inquiry would attack the validity of the arresting officer's lay opinion in a manner that would confuse the jury. However, the court sided with defendant and allowed him to highlight that the arresting [300 Or.App. 77] officer could not offer an expert opinion because he had not performed a DRE evaluation.

         In closing argument, defendant urged the jury to give the arresting officer's testimony less weight because the officer was unable to provide an expert opinion as to whether defendant was intoxicated. He argued: "So we have * * * the deputy over here, saying as a deputy, as an officer, as to a limited amount of training, I can say he's under the influence of marijuana, but as an expert with extra training, more classes, more experience, I cannot render that opinion." Shortly after that argument, the trial court requested a sidebar, during which the court cautioned defendant about mischaracterizing the evidence.[1] Defendant then resumed his closing argument but persisted in pursuing the argument that the court had cautioned him against making:

"THE COURT: Please proceed, Counsel.
"[DEFENDANT]: Thank you, Your Honor. So basically what you have here is you have a deputy as a deputy saying that he's under the influence of marijuana, and you're having a DRE say I don't have ...

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