State v. Tavares

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No. 318                  April 9, 2025                      605

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                ELIJAH SYDNEY TAVARES,
                    Defendant-Appellant.
               Deschutes County Circuit Court
                   22CR12038; A180879

   Alicia N. Sykora, Judge.
   Submitted October 22, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
   JOYCE, J.
   Affirmed.
606                                         State v. Tavares

        JOYCE, J.
         Defendant appeals from a judgment convicting him
of driving under the influence of intoxicants (DUII), ORS
813.010 (2021), amended by Or Laws 2023, ch 498, § 3. In a
single assignment of error, defendant contends that the trial
court erred in granting the state’s motion in limine to admit
evidence related to the content of defendant’s blood, which
was drawn after defendant was pulled over for speeding.
That evidence consisted of expert testimony from Anderson,
a toxicologist who had reviewed the documentation and
result of tests that several other lab analysts conducted, and
Anderson’s report analyzing the content of defendant’s blood.
Defendant argued that Anderson’s testimony and report
contained testimonial hearsay statements from the ana-
lysts who had conducted the testing, and, consequently, that
the admission of that evidence in the absence of the other
analysts’ testimony violated his right to confrontation under
the Sixth Amendment to the United States Constitution.
On appeal, defendant renews those arguments. For the rea-
sons stated below, we conclude that any error in admitting
Anderson’s testimony and report was harmless. Accordingly,
we affirm.
         The relevant facts are undisputed. Officer Childers
stopped defendant for speeding. As he approached defen-
dant’s car, Childers smelled an “overwhelming” scent of
burnt marijuana coming from defendant’s vehicle. Upon see-
ing and interacting with defendant, Childers observed that
defendant had droopy eyelids, bloodshot eyes, and dilated
pupils, and that his speech was slow and mumbled. Based
on those indicators, Childers suspected that defendant was
impaired and initiated a DUII investigation.
         Childers asked defendant when he had last used
any sort of cannabis, and defendant responded that he had
smoked “one or two bowls” a couple hours prior to driving.
When Childers asked defendant to rate himself on a scale
from zero to 10, with zero being completely sober and 10
being “the highest [he had] ever been,” defendant rated him-
self “like a three.” Defendant agreed to take field sobriety
tests, and, during his performance of those tests, Childers
observed several validated clues of impairment.
Cite as
339 Or App 605
(2025)                              607

        Childers arrested defendant for DUII and trans-
ported him to the hospital, where he obtained a sample of
defendant’s blood. Childers then sent defendant’s blood sam-
ple to NMS Labs, a large private laboratory in Pennsylvania,
and requested that the lab conduct testing entitled “DUID/
DRE Panel ProofPOSITIVE®, Blood.”
        Before defendant’s trial, the state filed a motion
in limine to admit testimony and a report about that test-
ing from Anderson, a forensic toxicologist from NMS Labs.
Anderson did not participate in or observe the testing of
defendant’s sample in the lab. Rather, Anderson’s “main
responsibility as a toxicologist with NMS Labs is to sign
out reports”—a process that required him to “electronically
review” records of all the work that the lab analysts had
conducted on defendant’s sample. Based on his review of
those records, he wrote and signed a report that he testified
“accurately reflect[ed his] analysis of the testing that was
done” in defendant’s case.
        Defendant opposed the state’s motion in limine
to admit Anderson’s testimony and report, arguing that
its admission would “violate [his] right to confront wit-
nesses under the Sixth Amendment of the United States
Constitution” because that evidence relied on testimonial
hearsay statements of the analysts who participated in test-
ing defendant’s sample.
          At a hearing on the state’s motion to admit the evi-
dence, the state offered testimony from Anderson regarding
the lab’s testing procedures and the testing of defendant’s
sample. According to Anderson, NMS Labs uses an assem-
bly line approach in which multiple analysts across different
departments handle various testing tasks for each sample.
Anderson explained that, for each sample, the lab conducts
an initial drug screen, and if the result is positive, the sam-
ple is then subjected to a confirmatory test. He described the
process of completing those tests in detail. After all the tests
for a particular sample are complete, the lab’s information
system prepares a draft report with the results and sends it
to Anderson for review. In conducting his final review and
before signing the report, Anderson checks that “all the test
procedures [were] completed,” and he “review[s] the data,
608                                          State v. Tavares

making sure that * * * the data supports the actual results
on the report.”
         With respect to defendant’s case in particular,
Anderson explained that he conducted the final review
of the analysts’ tests of defendant’s blood. He determined
that defendant’s blood contained an active component of
marijuana (delta-9 THC) as well as one active metabo-
lite (11-hydroxy delta-9 THC) and one inactive metabolite
(delta-9 carboxy THC). Anderson authored and signed a
report containing those results.
         Following the hearing, the court granted the state’s
motion to admit Anderson’s testimony and report. The court
determined that “Anderson’s report and opinions [were] tes-
timonial,” and that “bench analysts’ testimonial evidence
[was] not being offered by the State.” Thus, the trial court
concluded that “defendant’s right to confront[ation] will be
satisfied * * * because Mr. Anderson will be subject to cross
examination in trial.”
         At trial, Childers testified about his interactions
with defendant during the traffic stop, including his obser-
vations about the smell of marijuana, defendant’s bloodshot
eyes, droopy eyelids, and dilated pupils, as well as his slowed
speech and performance on the field sobriety tests. Childers
further testified, and the state introduced his bodycam
video showing, that defendant participated in field sobriety
tests, admitted to smoking “one or two bowls” a couple hours
before driving, and stated that he was “like a three” on a
scale of zero to 10, with 10 representing “the highest [he
had] ever been.”
         Anderson also testified and described the test
results, which indicated that defendant had marijuana in
his system during the traffic stop. In particular, Anderson
explained that defendant’s blood contained delta-9 THC
in a concentration of 5.1 nanograms per millimeter. When
asked whether that particular concentration of THC would
have been enough to impair defendant’s driving, Anderson
responded that there was “just no magic number or blood
level” that had been shown to be sufficient to impair a per-
son’s driving. Anderson further explained that “as a forensic
Cite as
339 Or App 605
(2025)                                                   609

toxicologist evaluating drugs on a piece of paper * * * I can-
not tell how these drugs would actually affect a particular
person.” In Anderson’s view, to be able to tell whether a per-
son is actually impaired by marijuana “it has to come from
* * * observed behavior, witness behavior, officers interacting
with them, field sobriety tests, [or] drug recognition expert
tests.”
          The jury convicted defendant of DUII, and defen-
dant now appeals.
          On appeal, defendant renews his argument that the
admission of Anderson’s testimony and report violated his
right to confrontation under the Sixth Amendment to the
United States Constitution.1 Based on the record as a whole,
we conclude that, even if admission of Anderson’s testimony
and report violated defendant’s confrontation right, any
error was harmless.2
         A federal constitutional error is harmless, such
that the conviction will be upheld, “if the reviewing court
may confidently say, on the whole record, that the consti-
tutional error was harmless beyond a reasonable doubt.”
Delaware v. Van Arsdall,
475 US 673, 681
,
106 S Ct 1431
,
89 L Ed 2d 674
(1986) (describing the test announced in
Chapman v. California,
386 US 18, 24
,
87 S Ct 824
,
17 L Ed
2d 705
(1967)). In reviewing the whole record to determine
whether an error was harmless, we consider “the impor-
tance of the [improperly admitted evidence] in the prosecu-
tion’s case, whether the [evidence] was cumulative, the pres-
ence or absence of evidence corroborating or contradicting
the [improperly admitted evidence] on material points, the
    1
      Defendant’s argument is similar to the one the defendant raised in Smith
v. Arizona,
602 US 779
,
144 S Ct 1785
,
219 L Ed 2d 420
(2024), a recent United
States Supreme Court case addressing Confrontation Clause limitations on the
admission of evidence. Cf. State v. Widerman, ___ Or App ___, ___ P3d ___ (Apr
2, 2025) (slip op at 30) (concluding that the admission of a toxicologist’s testimony
and report violated the defendant’s Article I, section 11, confrontation right).
    2
      Defendant does not raise an argument under the Oregon Constitution.
In Widerman, ___ Or App at ___ (slip op at 30), we concluded that admission
of evidence similar to that here violated Article I, section 11, of the Oregon
Constitution. Even if defendant had raised an argument under Article I, section
11, any error would be harmless under the state constitution for the same reasons
explained below. See State v. Davis,
336 Or 19, 32
,
77 P3d 1111
(2003) (explaining
that an error is harmless for state constitutional purposes if there is little likeli-
hood that erroneously admitted evidence affected the verdict).
610                                             State v. Tavares

extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.” Id. at
684.
           Here, defendant argues that the admission of the
disputed evidence was harmful because “whether defendant
was impaired by cannabis was the central factual issue in
the case.” See ORS 813.010 (2021) (stating that “[a] person
commits the offense of driving while under the influence of
intoxicants if the person drives a vehicle while the person
* * * [i]s under the influence of * * * cannabis.”); see also State
v. Eumana-Moranchel,
352 Or 1, 7-8
,
277 P3d 549
(2012)
(explaining that one way to establish that a person drove
while under the influence of intoxicants is when “the state
can prove that * * * the defendant was adversely affected by
intoxicants to a perceptible degree”). Defendant contends
that, without the admission of defendant’s blood test results,
“the jury might have had reasonable doubt that [he] was
impaired by marijuana when he drove.” Although the state
agrees with defendant’s characterization of the central issue
in this case, the state contends that the challenged evidence
had no bearing on that issue. In the state’s view, Anderson’s
testimony and report did not address defendant’s level of
impairment and, instead, only served to corroborate defen-
dant’s admission that he had used cannabis prior to driving.
We agree with the state.
         Defendant admitted to smoking “one or two bowls”
a couple hours prior to driving. Thus, the only question
for the jury was not whether defendant had used mari-
juana, but whether he was impaired by it. As to that issue,
Anderson expressly testified that he was not able to deter-
mine whether defendant was impaired. Anderson testified
that the lab results showed that defendant had 5.1 nano-
grams per millimeter of THC in his blood the night of the
traffic stop; however, Anderson also explained that there
was “no magic number or blood level” that had been shown
to be sufficient to impair a person’s driving. Based on his
review of data alone, Anderson stated that he “cannot tell
how these drugs would actually affect a particular person.”
Rather, Anderson stated that to be able to tell whether a
person was actually impaired by marijuana “it has to come
Cite as
339 Or App 605
(2025)                             611

from * * * observed behavior, witness behavior, officers inter-
acting with them, field sobriety tests, [or] drug recognition
expert tests.” And, as described above, that evidence in
fact came from Childers’s testimony in which he described
his observations of defendant throughout the traffic stop,
including that defendant had bloodshot eyes, dilated pupils,
slowed speech, and that he displayed several validated clues
of impairment during his performance of the field sobriety
tests. Thus, Anderson’s testimony and report did not bear
on the issue of whether defendant was impaired and, conse-
quently, did not contribute to the jury’s guilty verdict.
         In sum, we conclude that any error in granting the
state’s motion to admit Anderson’s testimony and report was
harmless beyond a reasonable doubt.
        Affirmed.