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State v. Basham

Court of Appeals of Oregon

December 18, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MATTHEW COREY BASHAM, Defendant-Appellant. 301 Or.App. 498

          Argued and submitted July 31, 2018

          Yamhill County Circuit Court 14CR10143; Cynthia L. Easterday, Judge.

          Mark J. Kimbrell, Deputy Public Defender, argued the cause for appellant. On the briefs were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Offce 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 Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge. [*]

         Case Summary: Defendant appeals from a judgment of conviction for driving under the influence of intoxicants, contending that the trial court erred in providing a Miles jury instruction. Held: The trial court erred. The record contained no evidence tying defendant's prior injuries and tiredness to an increased susceptibility to the effects of an intoxicating substance. Giving the Miles instruction in the absence of such evidence was likely to mislead the jury and was, therefore, reversible error.

         Conviction on Count 2 reversed and remanded; otherwise affirmed.

          [301 Or.App. 499] MOONEY, J.

         Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), [1] raising four assignments of error. We reject his second, third, and fourth assignments without discussion and write only on the first assignment in which defendant contends that the trial court erred in providing a Miles[2] jury instruction. We agree that the record was void of evidence to support that instruction and therefore reverse and remand for a new trial.

         We review jury instructions for errors of law. State v. Pierce, 235 Or.App. 372, 374, 232 P.3d 978 (2010). "In determining whether an instructional error requires reversal, we assess potential prejudice by considering the jury instructions as a whole." Id. "[A]n instruction is appropriate if it correctly states the law and is supported by evidence in the record, when the evidence is viewed in the light most favorable to the party requesting the instruction," in this case the state. State v. Ashkins, 357 Or. 642, 648, 357 P.3d 490 (2015). We state the facts consistently with that standard.

         On the evening of June 7, 2014, a civilian reported that he observed defendant driving abnormally. Officer Elliott responded to the report and pulled defendant over for speeding. When Elliott contacted defendant, he asked for defendant's driver's license, registration, and proof of insurance. While speaking with defendant, Elliott noticed that defendant's pupils were "very constricted," he had "visible open sores" on his arm, and his movements were "slow and kind of deliberate." Elliott believed that defendant was under the influence and requested that he perform field sobriety tests (FST). Defendant agreed and performed the horizontal gaze nystagmus test (HGN), the walk-and-turn test, and the one-leg-stand test. Defendant did not exhibit any "clues" of intoxication on the HGN test or the one-leg-stand test. On the walk-and-turn test, however, defendant exhibited seven of eight clues of intoxication. Based on his observations of defendant and defendant's performance [301 Or.App. 500] during the FSTs, Elliot believed that defendant "was under the influence of an intoxicant and that he was impaired." During the stop, Elliot also discovered that defendant was wearing a Fentanyl patch and that there were prescription pill bottles for hydrocodone-acetaminophen and oxycodone-acetaminophen in his car. Elliott arrested defendant and took him to the police station, where Detective McMullen performed a drug recognition expert (DRE) evaluation. McMullen ultimately concluded that defendant was "too impaired to operate a vehicle."

         A urine test showed the presence of methamphet-amine and its metabolite, amphetamine; hydrocodone and its metabolite, dihydrocodeine; gabapentin; and methocar-bamol. Edgardo Basaca, a forensic scientist with the Oregon State Police Forensic Laboratory, testified that gabapentin and methocarbamol are central nervous system (CNS) depressants, methamphetamine is a CNS stimulant, and hydrocodone, and its metabolite dihydrocodeine, are narcotic analgesics.

         After the state rested, defendant testified that he was injured in a car accident in 2004, which affected his ability to walk and balance, that he had only slept "for a couple of hours" the night before he was arrested, and that he "just didn't feel right" when he woke up. He worked that day and, on his way home, he felt tired and thought about stopping to sleep, but ultimately chose not to stop.

         At the close of evidence, the trial court informed the parties that it would provide Uniform Criminal Jury Instruction 2708, also ...


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