State v. Mello

No. 262 April 24, 2024 215

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

FATHYM EILEEN MELLO,

nka Fathym Eileen Walker,

Defendant-Appellant.

Douglas County Circuit Court

20CR55302; A179615

George William Ambrosini, Judge.

Argued and submitted February 7, 2024.

Carla Edmondson, 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.

Erica Herb, Assistant Attorney General, argued the cause

for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,

Judge.

JOYCE, J.

Affirmed.

216 State v. Mello

Cite as 332 Or App 215 (2024) 217

JOYCE, J.

Defendant appeals from a judgment of conviction

for driving under the influence of intoxicants (DUII), ORS

813.010 (Count 1), and reckless driving, ORS 811.140 (Count 2).

Defendant raises three assignments of error. In her first and

second assignments of error, defendant argues that the trial

court plainly erred in failing to strike certain testimony by

the arresting officer about field sobriety tests (FSTs) that, in

defendant’s view, was scientific evidence for which the state

did not lay an adequate foundation. In defendant’s third

assignment of error, she argues that the trial court erred in

denying her motion for a mistrial. Defendant contends that

the prosecutor misstated the burden of proof during closing

argument and that the curative instruction that the trial

court issued was insufficient to preserve defendant’s right to

a fair trial. For the reasons that follow, we affirm.

Officer’s testimony about the FSTs: In defendant’s

first and second assignments of error, she argues that the

trial court plainly erred in failing to strike an officer’s testi-

mony about two field sobriety tests that, in defendant’s view,

was scientific and thus inadmissible because the state did

not lay an adequate foundation. As we explain below, we

agree with defendant that under our recent decision in State

v. Ortiz, 325 Or App 134, 528 P3d 795, rev allowed, 371 Or

308 (2023), the asserted legal error is plain. However, we

decline to exercise our discretion to correct the error.

In reviewing a trial court’s evidentiary ruling, “we

do so in light of the record that was before the court at the

time of the ruling.” State v. Eatinger, 298 Or App 630, 632,

448 P3d 636 (2019). We consider all pertinent parts of the

record in evaluating whether the erroneous admission of

evidence was harmless. Id.

We begin by describing the facts leading up to

defendant’s arrest, which we take from testimony presented

at trial. An off-duty state trooper, Stone, was a passenger in

a car traveling on a state highway when he noticed defen-

dant’s car going 45 miles per hour where people typically

drive “anywhere from 55 to 75 or 80.” Stone observed defen-

dant’s car, which was in the slow lane, drift about two to

218 State v. Mello

three feet into the fast lane. The driver in Stone’s car tried

to pass defendant, and defendant swerved into their lane

and almost struck them. Stone believed it was not safe to

pass defendant’s car because she was “driving like a pinball

between the dotted line and the striped line and the solid

white line.” Stone called dispatch to report defendant’s driv-

ing. Stone followed defendant’s car for seven to eight miles,

observing defendant swerving, coming close to the guardrail

several times, driving at inconsistent speeds, almost hitting

a curb and then overcorrecting, and making turns without

using a turn signal. Stone did not observe any distractions

to explain defendant’s driving, such as an overhead dome

light on, animals or other people in the car, or that defen-

dant was using a cellphone. Stone has conducted roughly 80

DUII investigations and testified that he rated defendant’s

driving as in the “[t]op five to ten percent, conservatively,

worst driving that [he has] observed in this job.”

Stone relayed his observations over the phone to

another officer, Ellis. Ellis pulled up behind defendant’s car

and observed that defendant failed to stay within her lane.

Ellis initiated a traffic stop. Defendant drove into a park-

ing lot and “parked fine.” Ellis approached defendant’s car

and saw her in the driver’s side with a small dog in the cab

with her. Defendant appeared to be emotional and had “red,

watery, and bloodshot eyes.” Ellis noticed “a strong odor of

an alcoholic beverage coming from within the vehicle.” Ellis

asked defendant how much she had had to drink, and she

said she had had two or two and a half beers, the last one

being over three hours earlier.

Defendant explained that she was bringing her

ex-boyfriend’s French Bulldog, Chunk, back to him. Ellis

asked if there was any reason the dog would cause her bad

driving, and defendant said, “No. Because I was actually

dealing with the dog and that was * * * my bad. That was

my bad.” Ellis asked defendant if she would consent to field

sobriety tests (FSTs), and she said yes.

After defendant consented to the FSTs and stepped

out of the car, Ellis asked if she was “sick or injured.”

Defendant said she had had surgery the previous week on

her mouth and was on pain medications and antibiotics.

Cite as 332 Or App 215 (2024) 219

Ellis asked if she had balance problems, and she said she

has scoliosis.

Ellis testified that he administered four FSTs to

defendant, including the horizontal gaze nystagmus (HGN)

test, the vertical gaze nystagmus (VGN) test, the walk-and-

turn test, and the one-leg-stand test. Ellis observed six out

of six clues indicating impairment on the HGN test, and

also observed vertical nystagmus when he administered the

VGN test on defendant. Ellis observed six out of eight clues

on the walk-and-turn test, and three out of four clues on

the one-leg-stand test, the results of both tests indicating

impairment.

After defendant had performed the FSTs, Ellis

asked her to rate her intoxication level on a scale of one

to ten, and she said three. Ellis asked her if she thought

she could have performed better on the FSTs if she had not

been drinking and she said “oh, hands down.” Ellis arrested

defendant for DUII.1

Ellis testified in detail about the FSTs, including

how he administers them, the training he had received

about the tests, and how defendant performed on them.

Ellis testified that when he administered the walk-and-

turn test, he observed several clues indicating impairment,

including stepping out of the instruction position; stepping

offline; pausing during the test and asking questions; miss-

ing heel to toe; taking an incorrect number of steps down

the line; and making an incorrect turn by “shuffling her

feet.” Ellis testified that “the walk and turn took abnormally

long to get through the instructions because [defendant] just

kept kind of talking, rambling, and asking [him] to repeat

things.” During the one-leg-stand test Ellis observed defen-

dant sway, put her foot down, and raise her arms—all clues

indicating impairment.

In testifying about the HGN test, Ellis said that he

“learn[ed] that there’s been studies done to prove how accu-

rate [the test] can be. And the HGN test, * * * there’s six

possible clues. If, if we see four clues we know that that’s

1

Ellis administered a breathalyzer test to measure defendant’s blood alcohol

content. Before trial, defendant moved to suppress the results of that test, and the

court granted the motion. That motion to suppress is not at issue in this appeal.

220 State v. Mello

a very high percentage, in fact, 88 percent that they’ll be

an impaired driver. Four of six.” Ellis also testified that “if

someone has vertical nystagmus it’s considered to be a high

level of intoxication for that person.” The prosecutor then

asked Ellis, “And you said there’s studies. What’s the study

that you’re * * * referencing there?” Ellis responded, “I’m ref-

erencing the San Diego study.”

During closing argument, the prosecutor discussed

defendant’s “[n]ine miles of continuous terrible driving,” her

physical signs of impairment, her poor performance on the

walk-and-turn and one-leg-stand tests, and her statements

to Ellis. The prosecutor also said that the “HGN test is sci-

entific evidence. It is scientific evidence of impairment. * * *

[T]here have been studies about this. * * * Six out of six plus

VGN is an indication that this person is probably impaired.”

He went on to state that “[t]he HGN is a fabulous test. It’s

used nationwide * * *. It’s scientific and it’s an excellent way

for our officers to test for impairment.”

Defendant argued that there were “alternate expla-

nations” for her driving, including that she was emotional

and that Chunk “had been all over the cab of the car.”

Defendant also argued that she performed poorly on the

FSTs because she has scoliosis, had recently had surgery,

and that she was cold and wearing flip flops. Defendant

also argued that the FSTs were not administered properly,

stating during closing argument that they “were not done

scientifically.”

The jury found defendant guilty of one count of

DUII and one count of reckless driving.

As noted above, defendant on appeal contends that

Ellis’s testimony about the HGN and the VGN was scientific

such that it required the state to lay a foundation under the

Brown/O’Key factors. State v. Brown, 297 Or 404, 687 P2d

751 (1984); State v. O’Key, 321 Or 285, 899 P2d 663 (1995).

We agree with defendant that under Ortiz, the trial court

committed plain error by allowing Ellis’s testimony about

the HGN and VGN tests because that testimony “derive[d]

its force from scientific principles.” 325 Or App at 139. Ellis

Cite as 332 Or App 215 (2024) 221

testified that four out of six clues on the HGN test indi-

cates “88 percent that they’ll be an impaired driver,” and

that “there’s been studies done to prove how accurate” the

HGN test can be. He also referenced “the San Diego study”

after stating that vertical nystagmus indicates “a high level

of intoxication for that person.” That testimony was func-

tionally similar to the testimony in Ortiz, where the officer

testified that “the FSTs are ‘designed to determine impair-

ment,’ nationally ‘standardized,’ and supported by studies

‘prov[ing] their validity.’ ” Id. at 136 (brackets in original).

Thus, because the state did not lay a foundation as required

by Brown and O’Key, the trial court plainly erred in failing to

strike Ellis’s testimony. Id. at 139 (“[A] trial court has a sua

sponte duty to exclude clearly scientific testimony regarding

FSTs when it is presented without a proper foundation.”).

We further conclude that, because the testimony

directly related to the central factual issue in the case and

scientific testimony is particularly persuasive, the error in

permitting the relevant testimony was not harmless. State

v. Whitmore, 257 Or App 664, 672, 307 P3d 552 (2013) (erro-

neously admitted evidence that relates to a central factual

issue is more likely to have affected the jury’s determina-

tion); Eatinger, 298 Or App at 646 (erroneous admission of

scientifically based testimony weighs against a determina-

tion that an error was harmless because scientific testimony

“has manifest potential to influence a jury”).

Here, the central factual issue was whether defen-

dant was “under the influence of an intoxicant,” and because

evidence of defendant’s BAC had been suppressed, the state

was required to prove that she had been impaired to a per-

ceptible degree while driving. ORS 813.010(1)(b)2; Eatinger,

298 Or App at 646. Defendant’s performance on the FSTs and

Ellis’s testimony about the FSTs bore directly on whether

defendant was intoxicated. Further, as explained above,

the testimony was particularly persuasive. Accordingly, we

cannot conclude that such testimony had little likelihood of

affecting the verdict.

2

ORS 813.010 was amended in 2023. See Or Laws 2023, ch 498, § 3. However,

because those amendments do not affect our analysis, we cite the current version

in this opinion.

222 State v. Mello

Having concluded that the trial court’s failure to sua

sponte strike the pertinent testimony was not legally “harm-

less,” we must next determine whether we will exercise our

discretion to correct the error. State v. Inman, 275 Or App

920, 936, 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (“[T]

he harmless-error analysis does not govern our discretion-

ary decision about whether to address unpreserved claims

of error.”). In exercising our discretion, we consider factors

such as the gravity of the error, “the nature of the case,” and

the ends of justice in the particular case. Id. at 928 (citing

Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823

P2d 956 (1991)).

The likelihood that an error affected the verdict

goes to its gravity and to the ends of justice, and “our assess-

ment of where [the error] falls on the spectrum of ‘likelihood’

of having affected the verdict can be an important consid-

eration to the exercise of discretion.” State v. Horton, 327

Or App 256, 264, 535 P3d 338 (2023). In defendant’s view,

the persuasiveness of scientific testimony and the fact that

the prosecutor highlighted the scientific nature of the HGN

and VGN tests during closing arguments warrants the exer-

cise of our discretion. However, in contrast to cases where

we have exercised our discretion to correct a plain error, the

likelihood that the error affected the verdict here is low. In

Ortiz, for example, the officer only administered the walk-

and-turn and the one-leg-stand FSTs, and she bolstered her

testimony about both of those FSTs with testimony that we

concluded was scientific in nature. 325 Or App at 136, 138.

Similarly, in State v. Reid, 312 Or App 540, 543-44, 492 P3d

728 (2021), the arresting officer, referring generally to all of

the FSTs, testified that they were pass or fail—testimony

that we concluded was scientific.

In contrast, here Ellis administered the HGN,

VGN, walk-and-turn, and one-leg-stand FSTs, and Ellis’s

scientific testimony narrowly applied only to the HGN and

VGN tests. The testimony was thus not as broad as that

in Ortiz and Reid. Moreover, we agree with the state that

the additional evidence of defendant’s impairment in this

case, particularly Stone’s observations of defendant’s poor

driving for nearly nine miles, further distinguishes it from

Cite as 332 Or App 215 (2024) 223

Ortiz and Reid. Ortiz, 325 Or App at 135 (officer arrived

on scene after neighbor reported she heard a car “screech”

to a stop in a driveway); Reid, 312 Or App at 541 (officer

stopped the defendant for driving 15 miles over the speed

limit). Consequently, because there was additional evidence

of defendant’s impairment and, as discussed above, some of

Ellis’s testimony about the FSTs was permissible, the error

here was not as grave as in cases where we have exercised

our discretion to correct the error. See Inman, 275 Or App

at 933-34 (whether the record includes additional evidence

of a defendant’s guilt is a factor that we have considered in

declining to exercise our discretion to correct plain error).

Further, defendant argued during closing argument

that the FSTs “were not done scientifically,” which supports

the state’s contention that defendant may have had a stra-

tegic reason for failing to object to the scientific testimony.

See State v. Fults, 343 Or 515, 523, 173 P3d 822 (2007) (“the

possibility that defendant made a strategic choice not to

object” is a factor that we may consider in deciding whether

to exercise our discretion to correct a plain error). If defen-

dant herself characterized the administration of the FSTs

as being scientific, it is reasonable to infer that defendant

had a strategic reason for not objecting during the officer’s

testimony describing how he administered the FSTs and

instead allowing the scientific testimony but then arguing

that the tests were not administered in accordance with

strict requirements.

Additionally, had defendant objected to Ellis’s testi-

mony, the trial court could have easily corrected any error

by striking the testimony and instructing the jury to disre-

gard it. Inman, 275 Or App at 935 (“[T]he ease with which

any error could have been avoided or corrected should be a

significant factor in an appellate court’s decision whether to

exercise its discretion to correct a plain, but unpreserved,

error.”).

In short, the error here was not particularly grave

in terms of its likelihood of affecting the verdict, defen-

dant may have failed to object for a strategic reason, and

the error could have been easily avoided if defendant had

objected. Accordingly, consistent with the policy that we

224 State v. Mello

should exercise “utmost caution” in addressing unpreserved

claims of error, we decline to exercise our discretion to cor-

rect the error. Ailes, 312 Or at 382 (exercising discretion to

address an unpreserved claim of error “is contrary to the

strong policies requiring preservation and raising of error”).

Motion for a mistrial: During closing arguments,

the prosecutor made the following statements: “Nine miles

of continuous terrible driving. That’s a noticeable or percep-

tible degree [of impairment]. Red and watery eyes. There

could be other explanations but under the totality of the cir-

cumstances that could be a sign.” The prosecutor also told

the jury, “[Y]ou’re the ones who get to decide what’s reason-

able. * * *. What is reasonable here based on the totality of

these circumstances?” Defendant objected, arguing that the

prosecutor misstated the law to the jury and that it was

grounds for a mistrial. The court denied the motion for a

mistrial but told the jury “I want to admonish you that the

prosecutor’s statements about what is reasonable, that’s not

the standard in this case. The standard and the burden

of proof carried by the State is proof beyond a reasonable

doubt.” After closing arguments, the court read the jury

instructions to the jury, including an instruction on proof

beyond a reasonable doubt.

Defendant assigns error to the trial court’s denial of

her motion for a mistrial, arguing that the court’s curative

instruction was insufficient to ensure that the jury under-

stood the state’s burden of proof. We review the trial court’s

ruling for abuse of discretion, State v. Worth, 231 Or App 69,

74, 218 P3d 166 (2009), rev den, 347 Or 718 (2010), and affirm.

We disagree that the prosecutor’s statements were

so prejudicial that the trial court’s curative instruction was

insufficient to preserve defendant’s right to a fair trial. In

our view, the curative instruction that the trial court issued

was sufficient to cure any prejudice to defendant. See State v.

Chitwood, 370 Or 305, 311, 518 P3d 903 (2022) (“Generally,

a proper jury instruction is adequate to cure any presumed

prejudice from a prosecutor’s misconduct.”).

Unlike in Chitwood, the prosecutor here did not

directly refer to and misstate the standard of reasonable

Cite as 332 Or App 215 (2024) 225

doubt. As the state points out, the prosecutor made the state-

ments in the context of rebutting defendant’s argument that

there were alternate explanations for defendant’s driving,

physical signs of impairment, and performance on the FSTs.

Framed slightly differently, the prosecutor did not make the

statements in the context of discussing the state’s burden

of proving the elements of the offense beyond a reasonable

doubt, nor did the prosecutor “appeal[ ] to the jurors’ moral

sensibility about an irrelevant circumstance.” Chitwood, 370

Or at 317. Moreover, the trial court instructed the jury on

the reasonable doubt standard after closing arguments. See

id. at 317-18 (explaining that people tend to be influenced

most by the last event in a sequence, and “the timing of the

prosecutor’s remark about the burden of proof exacerbated

the risk that it would be prejudicial [because] it was the last

thing that the jury heard before beginning deliberations”).

Accordingly, the trial court did not abuse its discretion in

denying defendant’s motion for a mistrial.

Affirmed.