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.