State v. Widerman

380 April 2, 2025 No. 277

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOHNNY LEE WIDERMAN,

Defendant-Appellant.

Lincoln County Circuit Court

21CR06869, 20CR44850; A178347 (Control), A178348

Sheryl Bachart, Judge.

Argued and submitted June 17, 2024.

Meredith Allen, 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 briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and

Jacquot, Judge.

JOYCE, J.

Reversed and remanded.

Cite as 339 Or App 380 (2025) 381

382 State v. Widerman

JOYCE, J.

Defendant caused a car crash that killed one person

and injured three others. Shortly afterward, police obtained

a blood sample from him to determine if he was driving while

intoxicated. In this consolidated appeal from a judgment

convicting him of nine offenses and from a judgment revok-

ing his probation, defendant assigns error to the trial court’s

denial of his motion in limine to exclude an expert’s report

and testimony regarding that blood testing.1 In that motion,

defendant asserted that the admission of the results would

violate his right to confrontation under Article I, section 11,

of the Oregon Constitution and the Confrontation Clause of

the Sixth Amendment to the United States Constitution.

The state’s evidence consisted of expert testimony from

Dr. Spargo, a forensic toxicologist who reviewed the doc-

umentation and the results of tests that several other lab

analysts conducted, as well as a report that Spargo created

about the content of defendant’s blood. Defendant argued

that Spargo’s testimony and report included hearsay state-

ments of the analysts who had conducted the testing and,

consequently, that the admission of that evidence in the

absence of the analysts’ testimony would violate his right

to confront the analysts. On appeal, defendant renews those

arguments. We conclude that the admission of Spargo’s tes-

timony and report violated Article I, section 11. Accordingly,

we reverse and remand.

I. BACKGROUND

We begin with some of the relevant legal prin-

ciples to frame the pertinent facts and legal arguments.

Article I, section 11, of the Oregon Constitution protects a

criminal defendant’s right to confront, and, in particular,

cross-examine, adverse witnesses.2 State v. Copeland, 353

Or 816, 827-28, 306 P3d 610 (2013). Article I, section 11,

1

The jury convicted defendant of second-degree manslaughter, two counts of

third-degree assault, fourth-degree assault, driving under the influence of intox-

icants (DUII), reckless driving, two counts of second-degree criminal mischief,

and failure to carry or present a license. Based on the criminal conduct, the court

also revoked defendant’s probation in another case.

2

Article I, section 11, of the Oregon Constitution provides that “[i]n all crim-

inal prosecutions, the accused shall have the right to * * * meet the witnesses face

to face.”

Cite as 339 Or App 380 (2025) 383

bars admission of an out-of-court “witness statement” for

the truth of the matter asserted absent a showing that the

declarant is unavailable and that the statement has ade-

quate indicia of reliability. Id. at 823-24; see also State v.

Campbell, 299 Or 633, 648, 705 P2d 694 (1985) (adopting,

under Article I, section 11, the United States Supreme

Court’s reasoning in Ohio v. Roberts, 448 US 56, 65, 100 S Ct

2531, 65 L Ed 2d 597 (1980), regarding confrontation-based

limitations on admission of hearsay statements). A “witness

statement” excludes a statement by a public official that is

“confined to matters that the officer is bound by adminis-

trative duty to report and do[es] not include investigative or

gratuitous facts or opinions.” Copeland, 353 Or at 839.

Article I, section 11, thus prohibits a trial court

from admitting a “laboratory report without requiring the

state to produce at trial the criminalist who prepared the

report or to demonstrate that the criminalist was unavail-

able to testify.” State v. Birchfield, 342 Or 624, 631-32, 157

P3d 216 (2007); see also Copeland, 353 Or at 826 (explain-

ing that laboratory reports like those at issue in Birchfield

are “witness statements” for purposes of Article I, section

11, because they “contain[ ] investigative facts and opinions

involving suspected criminal activity”).

The initial question in this case is, under Article I,

section 11, when does the testimony of an expert witness

contain out-of-court statements of others offered to prove the

truth of the matters asserted? As the Oregon Supreme Court

recently held, and our own case law also explains, when a

witness lacks personal or specialized knowledge of facts but

nevertheless testifies to the truth of those facts based on the

statement of someone else, that testimony contains a “state-

ment” of the other person for confrontation purposes. In

this case, Spargo lacked personal or specialized knowledge

of how the lab’s analysts prepared and tested defendant’s

blood, but she nevertheless testified to how the analysts had

done those things. Spargo’s testimony included out-of-court

statements by the analysts admitted to prove the truth of

the matters asserted in those statements.

We also conclude that the lab analysts’ statements

do not fall within the historical exception to the category of

384 State v. Widerman

“witness statements” that the Oregon Supreme Court iden-

tified in Copeland, which is limited to statements by public

officials. Consequently, the lab analysts’ statements are wit-

ness statements for purposes of Article I, section 11. Because

the state did not show that the lab analysts were unavailable

and that the statements bore adequate indicia of reliability,

the admission of Spargo’s testimony violated Article I, sec-

tion 11. Given that conclusion, we do not address defendant’s

argument that the admission of Spargo’s testimony violated

the federal Confrontation Clause.

II. FACTS AND PROCEDURAL HISTORY

With that background, we turn to the facts of this

case. Defendant caused a car crash when he drove across

the centerline and struck an oncoming car. The other car’s

driver and three passengers were injured, and one of the

passengers died.

Following the crash, an officer arrested defendant

for DUII and a paramedic at the scene drew defendant’s

blood for drug and alcohol testing. A police officer sent defen-

dant’s blood sample to NMS Labs, a large private laboratory

in Pennsylvania, and requested that the lab conduct testing

entitled “ProofPOSITIVE® Drug Impaired Driving/DRE

Toxicology Panel (with Alcohol), Blood (Forensic).”

Before defendant’s trial, the state sought to present

testimony about that testing from Spargo, a forensic toxicol-

ogist from NMS Labs who also served as the lab’s Assistant

Laboratory Director and Assistant Director of Toxicological

Services. Spargo did not participate in or observe any of the

testing of defendant’s sample. She reviewed records of all of

the work that the lab’s analysts had conducted on the sam-

ple. Based on her review, she wrote and signed a report that,

she testified, was an “accurate representation of the results

of testing that occurred in this case.”

Defendant moved in limine to exclude Spargo’s tes-

timony and report on the ground that they depended on

hearsay in the form of statements from lab analysts about

the tests they had done on defendant’s blood and the results

of those tests. Defendant contended that, absent testimony

from the analysts who conducted the testing of defendant’s

Cite as 339 Or App 380 (2025) 385

blood, admission of Spargo’s testimony and report violated

his right to confrontation under both constitutions.

The state responded that the lab’s procedures

“ensure the quality of the toxicological analysis, and allow

Dr. Spargo, as a toxicologist, to independently review the

data and arrive at a conclusion.” Given that, the state con-

tended, only Spargo’s testimony was necessary.

Because the lab’s procedures are central to our

analysis, we describe Spargo’s testimony about them at

the motion hearing at some length. Because her testimony

was extremely detailed, our description nonetheless is only

a summary of the points most relevant for our analysis.

Spargo’s testimony addressed the lab’s procedures generally

as well as what had happened to defendant’s blood sample in

particular.

Spargo testified that the lab uses an “assembly line”

method of testing, which involves many lab employees and

analysts. The various testing tasks for any particular sam-

ple are completed by different employees and analysts within

different departments at the lab. When the lab receives a

sample, an employee logs it into the system and attaches a

unique bar code to it. Every time a sample is transferred to

a new analyst, the analyst scans its bar code into the system

to indicate where it is in the lab and what testing task the

analyst is performing. The lab’s computer system then logs

the analysts’ scanned information and creates a compilation

showing the information that the analysts entered, which is

called the chain of custody document.

She testified that, after the lab received defendant’s

blood sample, it was initially sent to the aliquoting depart-

ment, where a small amount, an aliquot, was created for

the initial screening test, which is a group of immunoas-

says that test for the presence of various drugs. The initial

screening is qualitative, meaning that it yields a result of

“present” or “absent” for each drug class, but it does not pro-

vide information about the concentration of each drug class

that is present in the blood sample.

The remainder of defendant’s blood was then sent to

the alcohol testing department. Spargo testified about what

386 State v. Widerman

generally happens when the lab’s analysts test for alcohol:

The analyst “remove[s] some of the blood from the tube. It’s

put into another labeled tube * * * with internal standard.

That vial is then put on the instrument, where it is heated

up, and the headspace, or the air above the liquid, is sam-

pled and injected onto the instrument.” A second analyst

makes sure the vials are tested in the right order, and two

additional analysts review the results of the batch to check

the calibration curve and make sure the samples meet the

criteria for reporting. Spargo testified that lab analysts

twice tested defendant’s blood for alcohol using that method.

After the analysts had finished the initial drug

screen and had tested defendant’s blood for alcohol, the

blood was returned to the allocating department and ali-

quots were sent to other specialized testing departments for

confirmatory tests based on the results of the initial screen-

ing. In those departments, she testified, analysts used liquid

chromatography tandem mass spectrometry to test defen-

dant’s blood for amphetamines, methamphetamine, THC,

and cannabis metabolites.

Each of the confirmatory tests requires an analyst

to do “the preparation at the bench top, so extracting to get

the sample ready to go on the instrumentation.” Spargo’s

testimony at trial provided more detail about the bench-

top preparation process for liquid chromatography tandem

mass spectrometry. She explained that the analyst

“start[s] out with blood, but [they] need to clean that sam-

ple up before [they] would inject it on the instrument. So

[they] want to remove other components from that sample,

because all [they’re] targeting for this assay are [the spe-

cific compounds that are relevant to the test]. So, there are

* * * a series of chemical extractions that are performed.

[The analyst] end[s] up with * * * the final aliquot. And that

is injected on a liquid * * * chromatography tandem mass

spectrometry instrument.”

She further explained that, in the “series of chemical

extractions” that the analysts perform, they are “starting

with [the] aliquot, that’s going to be blood” and “end[ing] up

with” something different—”a clear, colorless solution” “that

will be injected on the instrumentation.”

Cite as 339 Or App 380 (2025) 387

After completing the bench-top preparation, the

analyst puts the sample on or in the instrument. Another

analyst initially looks at the resulting data and evaluates

whether the results are appropriate, and a third analyst

reviews the data a second time.

During the testing for THC and cannabis metabo-

lites, Spargo testified, the analysts had a problem with the

batch that included defendant’s blood sample. Reading from

the analysts’ records, Spargo explained that “[t]here was a low

internal standard with poor chromatography for the last low

QC, so they would need to repeat all requests just for THC.”

As a result, the analyst ran the test for marijuana

metabolites a second time. This time, Spargo explained,

the analyst reported diluting the sample: “[S]o half of the

amount of blood was used. And then it is ultimately brought

up to the same volume, so you would have to multiply * * *

the result by two to get the reportable result.” She explained

that a note that the analyst had handwritten on the records

is “standard scientific notation” indicating that

“instead of the * * * routine amount that is used, [the ana-

lyst] did a one plus one, which means * * * equal amounts.

So you would divide it by two, meaning that half was the

sample and half was what was used to bring it up to vol-

ume. I believe it is * * * blank blood for this assay although

* * * I’m not entirely sure.”

Spargo explained that, in this case, the repeated test did

yield a result for one of the metabolites, but for the other

metabolite the second test still did not yield a reportable

result.

According to the lab’s procedures, when an analyst

completes any procedure, the analyst must identify what

they have done by entering the information—who they are

and what procedure they performed—into the computer

system, which compiles the entries into the posting history

report. The report is a chart that, for each task, states a

Procedure Code; a description of the procedure; an “HBN”;

a Condition Code (“CC”)3; the name of the person or people

3

The Condition Code Legend located at the bottom of the Posting History

Report explains that when an analyst enters the notation “OK,” it indicates that

they “[c]ompleted” the testing procedure.

388 State v. Widerman

who performed the procedure; and the date. For example,

as to amphetamines testing, the posting history report pro-

vides as follows:

Procedure Procedure HBN CC User Name Date

Description

EDAMP01P Amphetamines 7031595 OK Lippay, Helena / 2/19/2021

Prep Becker, Victoria

EDAMP01A Amphetamines 7033156 OK Hessler, Robert 2/21/2021

Analytical

EDAMP01A- Amphetamines 7033156 OK Deisher, Chelsey 2/22/2021

BREV Analytical

Spargo testified that the testing machines are

“interfaced” with the laboratory’s case management software

such that the results—that is, the data that the machine

returns regarding the sample identified as defendant’s that

the analysts have prepared and placed on it—from each test-

ing instrument are automatically recorded in the software.

All of the “paperwork” related to the testing—which includes

data about the testing of the individual sample and the whole

batch as well as the analysts’ notes about the sample and the

batch—is saved in the lab’s database program. For example,

in this case, the cannabis metabolite analyst’s handwritten

note regarding dilution was included in those records.

After the lab analysts’ testing was complete, the

case went into a review queue for the Toxicology Department,

where Spargo works. The case management software gener-

ates the final testing report—the report that Spargo signs—

based on the results from the testing instruments. Before

Spargo signs it, she looks at all the documentation that has

been generated during the testing process. Among other

things, she consults the chain of custody document that the

case management system has created from the employees’

scanning of the sample’s barcode “to make sure that there is

preparation and analysis that is occurring within each step,

that those transfers happened.” She looks at the posting his-

tory report to confirm “that there was preparation, analysis

and/or calculation and review for each piece.” She consults

the data and lab notes stored in the database. Regarding

the database materials, Spargo testified that, “in most

Cite as 339 Or App 380 (2025) 389

cases,” she does “not look at the calibrators and the controls,

because again they have been looked at twice already, as

has the sample result. But I do look at that one more time,

although I am not formally the technical reviewer, because

that has happened.” Once Spargo is “comfortable that every-

thing has been accurately conveyed on the report,” she signs

it. When asked whether her report contained statements of

the analysts, she said, “No. It’s simply the result of their

testing.”

Spargo testified that, as to each of the tests per-

formed on defendant’s blood, the analysts who performed

the test had followed the lab’s procedures. Ultimately, she

explained that her report “accurately reflect[s] the results of

the testing” that the analysts did. She concluded that defen-

dant’s blood contained methamphetamine, amphetamine,

Delta-9 Carboxy THC, and Delta-9 THC.

Following the hearing, the court issued an order

denying defendant’s motion to exclude the lab report and

Spargo’s testimony. The court determined that the report

was an out-of-court statement from Spargo that was admis-

sible as a business record under OEC 803(6). It found that

Spargo’s testimony and report were based on her own

“personal knowledge.” The court reasoned that, “because

Dr. Spargo is the analyst, the author of the report, and [was]

available to be cross-examined regarding her findings” her

report and testimony did not violate defendant’s state and

federal confrontation rights.4

At trial, the state presented Spargo’s report and

testimony, which was similar to her testimony at the hear-

ing. She testified about how the analysts tested defendant’s

blood for alcohol. She explained that, during the confirma-

tory tests, the analysts used quality controls and calibrators,

and she explained to the jury how the analysts prepared

defendant’s blood for testing and tested it. She explained

what had happened during the confirmatory test for THC

and marijuana metabolites and that the analysts had been

able to run a second test that resulted in a reportable result

4

Under OEC 403, the court excluded a section of the report entitled “ref-

erence comments,” which stated that certain levels of substances in the blood

correspond to certain levels of impairment. That section is not at issue on appeal.

390 State v. Widerman

of one metabolite but not the other. And she testified to the

results of the analysts’ testing.

When the state offered Spargo’s report into evidence,

defendant renewed his prior objection. As noted above, the

jury convicted defendant.

On appeal, defendant assigns error to the trial

court’s denial of his motion in limine to exclude Spargo’s lab

report and testimony. Defendant renews his argument that

the admission of her report and testimony violated his con-

frontation rights because both depended on witness state-

ments from the “several handlers and analysts who did not

testify.”

The state argues that “Dr. Spargo’s opinions and

conclusions were based on her own independent review of

the data generated by the testing instruments.” In its view,

her testimony and report did not contain any out-of-court

statements because they did not quote or directly recite any

words stated by someone else. And it contends that neither

the report nor Spargo’s testimony implicated defendant’s

confrontation rights under our reasoning in State v. Ruggles,

214 Or App 612, 167 P3d 471, adh’d to as modified on recons,

217 Or App 384, 175 P3d 502 (2007), rev den, 344 Or 280

(2008), because they were “based on [Spargo’s] observations

of the content of readings generated by a machine.” State v.

Ruggles (Ruggles Reconsideration), 217 Or App at 388.

We review the trial court’s factual findings for

legally sufficient evidence and its conclusions of law for legal

error, State v. Jackson, 187 Or App 679, 681, 69 P3d 722

(2003), and reverse.

III. ANALYSIS

A. Out-of-Court Statements Admitted for the Truth of the

Matter Asserted

As noted above, Article I, section 11, bars admis-

sion of an out-of-court “witness statement” for the truth of

the matter asserted absent a showing that the declarant is

unavailable and the statement has adequate indicia of reli-

ability. Copeland, 353 Or at 823. The provision thus applies

to witness statements that qualify as hearsay, Campbell, 299

Cite as 339 Or App 380 (2025) 391

Or at 648, defined as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” OEC

801(3).

When a witness’s “testimony is merely a conduit for

another person’s statement of personal or specialized knowl-

edge, then the testimony may be inadmissible hearsay if

offered for the truth of the matter asserted.” State v. Bowman,

373 Or 213, 225, ___ P3d ___ (2025). In other words, “the

definition of hearsay is not limited to assertions presented

with ‘air quote’ gestures or introduced by the explanation

‘I heard her say.’ ” Id. at 231. “Although those classic cues

may make it easier to identify possible hearsay, the defi-

nition is focused on whether the assertion was made other

than by the declarant at trial” and was presented at trial to

show the truth of the matter asserted. Id.; accord U.S. Bank

National Assn. v. McCoy, 290 Or App 525, 533, 415 P3d 1116

(2018) (holding that a declaration contained hearsay from

Wells Fargo’s business records because, although the wit-

ness “does not couch her attestations in terms of what Wells

Fargo’s records ‘said’[,] that is, she does not expressly refer-

ence an out-of-court statement,” “it is apparent * * * that the

attestations are based on [the witness]’s contemporaneous

review of the contents of Wells Fargo’s business records”). See

generally Laird C. Kirkpatrick, Oregon Evidence, § 602.03

(7th ed 2020) (explaining overlap between hearsay and lack

of personal knowledge); Bowman, 373 Or at 225 n 11 (same).

Consistent with that understanding, in a line of

criminal cases beginning in the 1980s, we have held that

testimony by a state’s witness that recounts the process and

results of testing is admissible if it is based on the testify-

ing witness’s personal knowledge of how the test took place,

but that it must be excluded if it is not and if a hearsay or

confrontation objection is raised. See State v. Prose, 308 Or

App 167, 168, 478 P3d 606 (2020), rev den, 367 Or 709 (2021)

(accepting the state’s concession that, “although the pediatri-

cian was entitled to rely on the results [of a urine test per-

formed by someone else] to form her opinion, her testimony

should not have been admitted as substantive evidence of

the test results over defendant’s hearsay objection”); State v.

392 State v. Widerman

McCormack, 92 Or App 84, 86-87, 756 P2d 1281, rev den, 306

Or 661 (1988) (reversing the trial court’s exclusion of testi-

mony on confrontation grounds where the testifying officer,

who was not the officer who had administered the Intoxilyzer

test to the defendant, nevertheless “was qualified to admin-

ister the test and had observed [the other officer] give it to

defendant”; there was no confrontation violation because the

testifying officer “would have testified about his own obser-

vations, not about out-of-court statements, and he would

have been available for cross-examination”); see also State v.

West, 145 Or App 322, 326-27, 930 P2d 858 (1996), rev den,

326 Or 43 (1997) (no confrontation issue where an officer,

Coon, who was not the officer who had conducted field sobri-

ety tests on the defendant testified that he had “observed the

FSTs, that based on Coon’s training, they were administered

in accordance with protocols, and that Coon interpreted the

results to indicate that defendant was intoxicated”); accord

State v. Knepper, 62 Or App 623, 625-26, 661 P2d 560 (1983)

(reversing the defendant’s DUII conviction for a violation of

OEC 703 (regarding testimony of expert witnesses) where an

expert had testified to the result of a blood-alcohol test that

he did not perform). Thus, when a witness lacks personal

or specialized knowledge of facts but nevertheless testifies

to the truth of those facts based on the statement of some-

one else, that testimony contains a “statement” of the other

person for hearsay purposes and, equally, for confrontation

purposes under Article I, section 11.5

5

In Bowman, the Supreme Court explained the distinction between inad-

missible hearsay and expert testimony under OEC 702 and 703, which allow an

expert to testify to their own specialized knowledge and to opine based on (1) that

specialized knowledge and (2) “hearsay and other inadmissible facts and data.”

373 Or at 226. Under Bowman, facts or assertions presented for their truth that

are neither within the witness’s personal knowledge (OEC 602) nor within the

witness’s specialized knowledge (OEC 702) are hearsay. 373 Or at 226. Under

OEC 702, an expert witness may testify to their own specialized knowledge. And

under OEC 703, as long as it is within the witness’s expertise, an expert witness

may testify to an opinion based on facts and data that are hearsay. Bowman, 373

Or at 226. However, the hearsay facts and data that the expert relies on remain

inadmissible for their truth. Id. (“Rule 703 does not ‘render otherwise inadmissi-

ble evidence admissible merely because it was the basis for the expert’s opinion.’ ”

(Quoting McCathern v. Toyota Motor Corp., 332 Or 59, 70, 23 P3d 320 (2001).)); id.

at 227 (“Rule 703 does not exempt expert witnesses from the general prohibition

against hearsay; an expert may not merely parrot the statement of another for

its truth. And Rule 703 does not make hearsay admissible.” (Internal footnote

omitted.)).

Cite as 339 Or App 380 (2025) 393

The remaining question is what it means for a

statement to be admitted for its truth. Our Supreme Court

shed some light on that question in Bowman. The disputed

testimony in Bowman was a testifying police officer’s asser-

tion that, according to an ophthalmologist, when a person

displays horizontal gaze nystagmus, they see “like a baby.”

373 Or at 218-19. The state argued that that testimony,

which included an out-of-court statement of the ophthalmol-

ogist, had not been admitted for its truth, but rather had

been admitted to explain the officer’s expert opinion that,

based on the defendant’s nystagmus, she was impaired. Id.

at 222. The court disagreed, explaining that the prosecutor

had repeatedly asked the officer to make the disputed state-

ment and that the prosecutor relied on the testimony “as

if the proposition were true” and emphasized it in closing

argument. Id. at 231.

In circumstances similar to those of this case, the

United States Supreme Court recently explained when an

out-of-court statement of a lab analyst is admitted for the

truth of the matter asserted. Although we are not bound

by United States Supreme Court precedent in interpreting

the Oregon Constitution, the Court’s reasoning may pro-

vide persuasive authority. Campbell, 299 Or at 648 (relying

on reasoning of the United States Supreme Court in inter-

preting Article I, section 11, “on independent and separate

state grounds”). In Smith v. Arizona, 602 US 779, 790, 144

S Ct 1785, 219 L Ed 2d 420 (2024), state crime lab analyst

Rast had tested substances found in the defendant’s pos-

session and prepared lab notes that “documented her lab

work and results” and a report stating her ultimate find-

ings—that each of the substances that she tested contained

usable amounts of drugs. Before the defendant’s trial on

drug charges, Rast stopped working for the crime lab, and

the state notified the defendant and the court that it would

instead call forensic scientist Longoni as its expert witness,

noting that he would “provide an independent opinion on the

drug testing performed by * * * Rast.” Id. Longoni had not

been involved in the case before that point. Id. at 791.

Longoni reviewed Rast’s report and notes. Id. At

trial, he described the testing that Rast had conducted and

394 State v. Widerman

testified that Rast’s testing had “adhered to ‘general princi-

ples of chemistry’ ” and the lab’s “ ‘policies and practices.’ ” Id.

After “telling the jury what Rast’s records conveyed about

her testing of the items, Longoni offered an ‘independent

opinion’ of their identity”—that the substances contained

usable quantities of various drugs. Id.

On appeal, the Arizona Court of Appeals rejected

the defendant’s confrontation argument, reasoning that

Longoni had testified about “the underlying facts” regard-

ing Rast’s testing only “to show the basis for [Longoni’s]

opinion and not to prove their truth.” Id. at 792 (internal

quotation marks omitted). Thus, the question for the Court

was whether the Confrontation Clause permitted the state

to have Longoni relay to the jury the factual information

that “Rast’s records conveyed about her testing of the items”

as the basis for his “independent opinion” of the substances’

identity. Id. at 791. The defendant argued that Longoni’s

testimony contained hearsay and thus implicated the

Confrontation Clause because “Rast’s statements were con-

veyed, via Longoni’s testimony, to establish that what she

said happened in the lab did in fact happen.” Id. at 793.

The Court rejected the state’s argument that

Longoni’s testimony was non-hearsay, that is, that it did not

include statements of Rast presented for the truth of the

matter asserted. Id. 798. The Court held that, if the cred-

ibility or usefulness of an expert’s opinions depends on the

jury accepting as true the out-of-court statement of another

person, then that out-of-court statement has been admitted

for its truth. Id.

The Court observed that “Longoni, though familiar

with the lab’s general practices, had no personal knowledge

about Rast’s testing of the seized items. Rather, as his tes-

timony makes clear, what he knew on that score came only

from reviewing Rast’s records.” Id. at 796. In the quoted

testimony, Longoni testified, among other things, that “the

[standard lab] policies and practices * * * were followed”;

that “[t]he microscopic examination and the chemical color

test” were used; and that there was “a blank done to prevent

contamination, make sure everything was clean.” Id. at 797.

Based on those facts, among others, Longoni opined that the

Cite as 339 Or App 380 (2025) 395

tested substance contained a usable quantity of marijuana.

Id. at 796-97.

The Court explained that all of Longoni’s opinions

“were predicated on the truth of Rast’s factual statements.” Id.

at 781. “Longoni could opine that the tested substances were

marijuana, methamphetamine, and cannabis only because he

accepted the truth of what Rast had reported about her work

in the lab—that she had performed certain tests according to

certain protocols and gotten certain results.” Id. at 798. And

the jury could credit Longoni’s opinions—his identification

of the substances—”only because it too accepted the truth

of what Rast reported about her lab work (as conveyed by

Longoni). If Rast had lied about all those matters, Longoni’s

expert opinion would have counted for nothing, and the jury

would have been in no position to convict.” Id. Thus, “[t]he

State’s basis evidence—more precisely, the truth of the state-

ments on which its expert relied—propped up its whole case.

But the maker of those statements was not in the courtroom,

and [the defendant] could not ask her any questions.” Id.

In other words, the court explained, the state had

“used Longoni to relay what Rast wrote down about how she

identified the seized substances. Longoni thus effectively

became Rast’s mouthpiece. He testified to the precautions

(she said) she took, the standards (she said) she followed,

the tests (she said) she performed, and the results (she said)

she obtained.” Id. at 800. If Rast’s statements were testimo-

nial, the court concluded, they were inadmissible under the

Confrontation Clause absent Rast’s testimony; the defendant

“had a right to confront the person who actually did the lab

work, not a surrogate merely reading from her records.” Id.6

Thus, in Smith, the Court reasoned that, if an expert

witness lacks personal knowledge of case-related facts but

testifies to those facts based on statements of others, and the

utility and persuasiveness of the expert’s testimony rests on

the jury accepting the truth of those statements, the out-

of-court statements have been admitted for their truth. Id.

6

The court declined to reach the question whether Rast’s statements were

testimonial because it had not been decided below and the parties disputed its

procedural posture. Smith, 602 US at 801. Thus, it remanded for the state court

to make that determination before deciding whether Longoni’s testimony should

have been excluded. Id.

396 State v. Widerman

at 803. That is consistent with our Supreme Court’s hold-

ings in Bowman that, under the Oregon Evidence Code,

testimony contains hearsay when it is “merely a conduit for

another person’s statement of personal or specialized knowl-

edge,” 373 Or at 225, and that the out-of-court statement in

Bowman had been admitted for its truth because the prose-

cutor had sought and relied on it as if it were true, id. at 231.

That is, when the case is litigated in a way that suggests

to the jury or requires the jury to believe that out-of-court

statements conveyed through witness testimony are true,

the statements have been admitted for the truth of the mat-

ter asserted.

Thus, we conclude that, like the Oregon Evidence

Code, Article I, section 11, prohibits the state from present-

ing facts to the jury through testimony of someone who lacks

personal or specialized knowledge of those facts. That is con-

sistent with the purpose of Article I, section 11, which, among

other things, is to ensure that criminal defendants have an

opportunity to cross-examine the witnesses on whose testi-

mony they are convicted. See, e.g., Copeland, 353 Or at 827-

28 (“The framers were keenly aware that the involvement

of government officers in the production of testimony with

an eye toward trial presents unique potential for prosecuto-

rial abuse. The people adopted confrontation guarantees to

ensure the reliability of that evidence by requiring in-court

testimony and the opportunity for cross-examination.”

(Internal quotation marks, brackets, and citation omitted.)).

As the Court explained in Smith, the confrontation

problem with “surrogate” testimony regarding scientific test-

ing is that it denies the defendant an opportunity to show

that, notwithstanding what the analyst—the person who

knows what actually happened in the lab—was supposed to

do and said that they did, they actually did something else.

602 US at 800. That opportunity may bring to light problems

in testing processes that directly affect the accuracy of the

results, which are being used to prove the defendant’s guilt.

See id. at 785-86 (Cross-examination “might have plenty to

do in cases involving forensic analysis. After all, lab tests

are ‘not uniquely immune from the risk of manipulation’

or mistake.” (Quoting Melendez-Diaz v. Massachusetts, 557

Cite as 339 Or App 380 (2025) 397

US 305, 318, 129 S Ct 2527, 174 L Ed 2d 314 (2009).)); id.

(Testimony by someone who did not observe or participate

in the testing process “ ‘could not convey what [the original

analyst] knew or observed’ about ‘the particular test and

testing process he employed’ ” and thus could not “ ‘expose

any lapses or lies on the [first] analyst’s part,’ or offer any

insight into whether his leave-without-pay was the result

of misconduct.” (Quoting Bullcoming v. New Mexico, 564 US

647, 661-62, 131 S Ct 2705, 180 L Ed 2d 610 (2011) (brack-

eted material modified; second brackets added).)).

Given our understanding of Article I, section 11,

defendant is correct that Spargo’s testimony contained out-

of-court statements from the lab analysts admitted to prove

the truth of the matters asserted in those statements. As

Spargo explained, her involvement with the case began after

the analysts’ testing, and their records, were complete. She

reviewed the analysts’ records—their statements, recorded

in the lab’s computer systems, of what they had done to

defendant’s blood—to learn what they had done to prepare

defendant’s blood for testing and how they had tested it.

Although she had direct access to the results from

the testing instruments, that data could not provide her with

personal knowledge of how defendant’s blood was prepared

and tested, that is, whether the analysts followed the lab’s

procedures as a factual matter and, consequently, whether

the machine-generated results were accurate. Instead, she

relied on the truth of the analysts’ statements in the posting

history report that they had conducted the various parts of

the testing process according to the lab’s procedures. She

also relied on detailed assertions like the handwritten note

saying that the analyst had diluted defendant’s blood with

something—Spargo thought it was “blank blood,” but was

not certain—in a certain amount when rerunning the con-

firmatory test for THC and marijuana metabolites.

As the state argues, it is true that, to some degree,

Spargo could check the analysts’ work by looking at the

results in light of the quality control information and cali-

bration data from the instruments.7 However, Spargo’s abil-

7

However, Spargo testified that she did not routinely do that, because it had

already been done by others.

398 State v. Widerman

ity to confirm the results of the test does not eliminate her

reliance on the lab analysts’ statements, because, without

participating in or observing the analysts’ work, she did

not—and could not—know what the analysts had actually

done to prepare defendant’s blood for testing or how they

had placed it in or on the testing instruments. Instead, she

relied on her knowledge of what the analysts were supposed

to do and their out-of-court statements from the posting his-

tory report and notes, in which they asserted that they had

done those things. Based on those out-of-court statements,

she testified to the jury that, as a matter of fact, the ana-

lysts had done those things.

Under OEC 702 and 703, Spargo was allowed to

rely on the analysts’ hearsay statements as the basis for

an opinion on the contents of defendant’s blood. Bowman,

373 Or at 225-26; see also, e.g., Prose, 308 Or App at 168

(accepting the state’s concession that, “although the pedia-

trician was entitled to rely on the results [of a urine test per-

formed by someone else] to form her opinion, her testimony

should not have been admitted as substantive evidence of

the test results over defendant’s hearsay objection”). But her

reliance on them did not make those statements admissi-

ble through her testimony. Bowman, 373 Or at 227 (“Rule

703 does not exempt expert witnesses from the general pro-

hibition against hearsay; an expert may not merely parrot

the statement of another for its truth. And Rule 703 does

not make hearsay admissible.” (Internal footnote omitted.)).

Under Article I, section 11, Spargo’s assertions to the jury

that the analysts had done the things that they said they

had done constituted out-of-court statements admitted for

the truth of the matter asserted.

The state contends that, contrary to our under-

standing discussed above, our reasoning in Ruggles controls

in this case and establishes that Spargo’s testimony and

report contained no hearsay and presented no confrontation

issue. As explained below, in light of the Supreme Court’s

recent decision in Bowman, we disagree.

Our decision in Ruggles includes an initial opin-

ion, 214 Or App 612, and an opinion on reconsideration that

modified the initial opinion. Ruggles Reconsideration, 217

Cite as 339 Or App 380 (2025) 399

Or App at 389 (“Reconsideration allowed; former opinion

modified and adhered to as modified.”). We thus recount the

scope of the decision consistently with our explanation of it

on reconsideration, and we quote parts of the original opin-

ion that remained unmodified on reconsideration.

In Ruggles, the defendant was charged with driving

under the influence of intoxicants. 214 Or at 614. A phle-

botomist drew a sample of the defendant’s blood and had

it transported to a private lab, Oregon Medical Laboratory

(OML), for blood-alcohol testing. Id. Several lab employees

were involved in the moving and testing of the blood at the

lab, including three technologists who, variously, created an

aliquot, “set aside” the sample, and tested it using “a flame

ionization detector in a gas chromatograph.” Id. at 614-15.

That machine “generated a printout of information about

the content of the aliquot sample.” Id. at 615.

After that process was complete, two “certifying sci-

entists,” Irford and Mollahan, reviewed “the chain of custody

reports, testing printouts, and other records.” Id. Mollahan

then prepared a report stating that the blood sample was

“ethanol positive at 0.113 g/dL” as “confirmed by gas chro-

matography.” Id. at 615. The defendant moved to exclude

the test results, and the court denied the motion. Id. The

court admitted both the report and testimony of Mollahan

describing the testing that the technologists had done and

the results that they obtained. Id. at 615-16, 618-19.

On appeal, the defendant assigned error to the

trial court’s admission of Mollahan’s report. Ruggles

Reconsideration, 217 Or App at 388.8 He argued that the

admission of the evidence violated his confrontation rights

because the report “ ‘contained statements made by per-

sons who were not available for cross-examination at trial.’ ”

Ruggles Reconsideration, 217 Or App at 387.

8

In our first opinion, we addressed both Mollahan’s report and his testi-

mony. On reconsideration, the defendant argued that we had failed to mean-

ingfully engage with his arguments regarding the constitutional implications

of Mollahan’s foundational testimony about what the technologists had done

with defendant’s blood—what they did to store and test it. In the reconsideration

opinion, we stated that the defendant had not preserved or raised on appeal the

admissibility of Mollahan’s testimony. Ruggles Reconsideration, 217 Or App at

388. Accordingly, we limited our holding to the report. Id.

400 State v. Widerman

We rejected that argument, reasoning that the only

information that the report conveyed was a machine-pro-

duced test result. Ruggles, 214 Or App at 619. We compared

the case to State v. Weber, in which a photo radar unit had

produced a photograph of the defendant driving a car with

a notation of the speed of the car on it. Id. (citing State v.

Weber, 172 Or App 704, 709, 19 P3d 378 (2001)). In Weber, we

had held that, even if the notation of the car’s speed qualified

as a “ ‘statement,’ ” “it was generated by a machine, and not

made by a person,” so it was not hearsay. Weber, 172 Or App

at 709 (quoting OEC 801). In Ruggles, we said that, like the

notation in Weber, the report in Ruggles “was not about what

an out-of-court declarant said; it was about what a testing

machine indicated.” Ruggles, 214 Or App at 619. We noted, “[t]

here were no other markings or designations from any other

OML employee on the report to attribute the statement of

result to an out-of-court declarant.” Id. Ultimately, we con-

cluded, “the report’s recitation of the testing results is based

on Mollahan’s observations of the content of readings gener-

ated by a machine. The report does not recite the testimony of

out-of-court declarants so as to raise issues about the right to

confront witnesses.” Ruggles Reconsideration, 217 Or App at

387-88. Thus, we concluded, it did not violate either Article I,

section 11, or the Confrontation Clause. Id. at 389.

As noted, the state contends that our reasoning in

Ruggles controls in this case. Defendant responds that this

case is not controlled by Ruggles because, (1) here, he pre-

served objections to both Spargo’s report and her testimony;

(2) even considering only her report, the report in this case

contained more than the report did in Ruggles because it

included “chain of custody, quality control, and methodolog-

ical information”; (3) Ruggles has been superseded by more

recent cases addressing Article I, section 11; and, (4) in any

event, Ruggles is plainly wrong and should be overruled.

Bowman’s holding that testimony that is “a conduit

for another person’s statement of personal or specialized

knowledge” may contain inadmissible hearsay, 373 Or at

225, is inconsistent with, and thus overrules, our holding

in Ruggles that the report in that case contained no hear-

say. The report in Ruggles stated that the defendant’s blood

Cite as 339 Or App 380 (2025) 401

sample was “ethanol positive at 0.113 g/dL” as “confirmed by

gas chromatography.” 214 Or App at 615. The person who

wrote the report, Mollahan, had not tested the blood; rather,

he was a “certifying scientist” who reviewed “the chain of cus-

tody reports, testing printouts, and other records.” Id. That

is, Mollahan knew that the defendant’s blood-ethanol con-

tent had been “confirmed by gas chromatography” because

he had read the records provided by the technologists who

had created an aliquot, “set aside” the sample, and tested it

using “a flame ionization detector in a gas chromatograph.”

Id. at 614-15. Under Bowman, Mollahan’s statement in the

report that the ethanol content of the defendant’s blood had

been confirmed by gas chromatography was hearsay; it was

“another person’s”—the technologists’—”statement of per-

sonal * * * knowledge”—that they had tested the defendant’s

blood according to the lab’s procedures using gas chromatog-

raphy and that was how the testing machine had reached

the result of “ethanol positive at 0.113 g/dL.” Bowman, 373

Or at 225; Ruggles, 214 Or App at 615.

In reaching the conclusion that the report con-

tained no hearsay, we reasoned that “[t]here were no other

markings or designations from any other OML employee on

the report to attribute the statement of result to an out-of-

court declarant.” Ruggles, 214 Or App at 619. As the court

explained in Bowman, that reasoning is incorrect. “[T]he

definition of hearsay is not limited to assertions presented

with ‘air quote’ gestures or introduced by the explanation ‘I

heard her say.’ ” 373 Or at 231. “Although those classic cues

may make it easier to identify possible hearsay, the defi-

nition is focused on whether the assertion was made other

than by the declarant at trial” and was presented at trial for

the truth of the matter asserted. Id.

Thus, in Ruggles, even if the number displayed on

the testing machine was not, itself, hearsay (because, as we

noted, it came from a machine, not a person), the informa-

tion that made that number probative of any relevant fact

in the case—specifically, the information that the technol-

ogists had tested defendant’s blood sample using gas chro-

matography and the number shown on the testing machine

represented the result of that testing—was hearsay because

402 State v. Widerman

it conveyed knowledge of the technologists, not the testify-

ing witness.

Given the Supreme Court’s holding in Bowman,

Ruggles does not change our conclusion that, in this case, the

trial court erred in denying defendant’s request for exclusion

of Spargo’s testimony and report. Even if the numbers in

Spargo’s report and testimony were not subject to exclusion

because Spargo received that information directly through

the computer system, the other facts contained in the report

and her testimony—facts without which the numbers were

not probative of defendant’s impairment—were hearsay

because they were based on the knowledge of the analysts,

not Spargo. And those facts were admitted through Spargo’s

testimony and report for their truth.

B. Witness Statements

Having concluded that Spargo’s testimony and

report contained statements of the lab analysts admitted for

their truth, we next consider whether, under Article I, sec-

tion 11, the analysts’ statements constitute “witness” state-

ments. In Copeland, the Supreme Court explained, based on

an historical exception to the confrontation right, that “[r]

ecords made by a public officer in the performance of an offi-

cial administrative duty” that contain hearsay statements

of the public officer “are not ‘witness’ statements that offend

a defendant’s confrontation right [under Article I, section

11,] if they are confined to matters that the officer is bound

by administrative duty to report and do not include inves-

tigative or gratuitous facts or opinions.” 353 Or at 839. In

the course of explaining the evolution of that exception, the

court explained that “ ‘a record of a primary fact made by a

public officer in the performance of official duty is or may be

made by legislation competent prima facie evidence as to the

existence of that fact.’ ” Copeland, 353 Or at 835-36 (quoting

Commonwealth v. Slavski, 245 Mass 405, 140 NE 465, 469

(1923)). To the contrary, however, “ ‘records of investigations

and inquiries conducted, either voluntarily or pursuant to

requirement of law, by public officers concerning causes and

effects and involving the exercise of judgment and discre-

tion, expressions of opinion, and making conclusions are

Cite as 339 Or App 380 (2025) 403

not admissible [in] evidence as public records.’ ” Id. (quoting

Slavski, 140 NE at 469).

In State v. Kini, 305 Or App 833, 837, 473 P3d 64

(2020), we considered a well-developed argument by the state

that the exception articulated in Copeland covered certain

hospital records, which included blood-alcohol test results

as well as a diagnosis of the defendant with “[a]cute alco-

hol intoxication” and other information. Leaving for another

day the question of whether private business records—

rather than official records like the return of service at

issue in Copeland—could ever fall within the exception, we

explained that the hospital records went well beyond reflect-

ing “only facts that the declarant is duty-bound to report”

and not “the types of opinions, exercises of judgment, or gra-

tuitous or investigative facts that trigger the confrontation

right.” Id. at 847 (emphasis in original).

Here, the state asserts that the records in this case

qualify for the exception set out in Copeland. We disagree.

To the extent that the lab analysts’ statements in this case

qualify for any hearsay exception, it would be the business

records exception, not the official records exception, a subset

of which the court addressed in Copeland. 353 Or at 842. As

we explained in Kini, it is not clear that the Supreme Court

intended for its reasoning in Copeland ever to apply outside

the context of official records. Kini, 305 Or App at 845-46.

Further, even assuming that Copeland’s reasoning

could ever apply to private business records, rather than

official records, the analysts’ statements at issue here do

not qualify for the Copeland exemption from the confronta-

tion right. Records created during scientific testing to show

what the tester is doing to the sample and how the tester

reaches their result are “records of investigations and inqui-

ries conducted” and they “concern[ ] causes and effects and

involv[e] the exercise of judgment and discretion, expres-

sions of opinion, and making conclusions.” Copeland, 353 Or

at 836 (internal quotation marks omitted). Those types of

statements are witness statements subject to confrontation.

Accordingly, under Article I, section 11, the trial

court erred in admitting Spargo’s testimony and report over

404 State v. Widerman

defendant’s confrontation objection. Because that evidence

was central to the state’s argument that defendant had

driven while impaired, the error was not harmless.9

Reversed and remanded.

9

We recognize the practical impact of this outcome means that the state,

when it seeks to admit evidence of the kind at issue here, would have to call

the many analysts involved in the testing process. That said, the confrontation

clause works on its own demands, and does not neatly align with the reasons that

labs like NMS structure their processes as they do.