Defendant was convicted after a jury trial of one count of driving under the influence of intoxicants (DUII), a misdemeanor. ORS 813.010.
We take the following facts from the record. Officer Hyson was on patrol in the morning when he saw defendant drive through an intersection without stopping at a stop sign. After Hyson pulled over defendant, he аsked for defendant’s license, registration, and proof of insurance. After Hyson repeated his request for the three documents, defendant appeared to have difficulty retrieving his license from his wallet. Hyson noticed that defendant’s speech was slow and slightly slurred.
At the jail, defendant agreed to provide a urine sample. Bessett, a criminalist at the Oregon State Police Crime Lab, analyzed defendant’s urine sample and prepared a written report. In his written report, Bessett confirmed the following substances present in defendant’s urine sample:
“Methadone, a Schedule II controlled substance and its metabolite EDDP[.]
“Oxycodone (Oxycontin, Percodan), a Schedule II controlled substance [.]
“Morphine, a Schedule II controlled substance and a metabolite of several opiates [.]
“Citalopram (Celexa) and/or escitalopram (Lexapro) both prescription controlled anti-depressants [.]”
Bessett testified at trial. Before explaining the findings in his written report, he described his training. In part, he said that he had had training in drug classifications, and he described central nervous system depressants, such as Valium or Ambien, as an example of a drug classification. He also described the effects of a central nervous system depressant: it lowers a person’s heart rate, lowers a person’s breathing rate, and makes the person feel more relaxed.
With regard to the substances listed in Bessett’s report that were confirmed to be present in defendant’s urine, Bessett explained that methadone is a Schedule II controlled substance that is in the category of narcotic analgesics, which are considered depressants. Side effects of narcotic analgesics, he testified, may include confusion, disorientation, drowsiness, and mental clouding, and so narcotic analgesics may impair mental and physical capabilities. He explained that oxycodone, the active ingredient in Oxycontin and Percodan, and morphine are Schedule II controlled substances too and also are narcotic analgesics with side effects similar to methadone.
In her redirect examination of Bessett, however, the prosecutоr returned to the topic of Ambien. Bessett testified that, although narcotic analgesics do not typically cause nystagmus, which defendant exhibited during the HGN test, centralnervoussystemdepressants, such as Ambien, Clonazepam, and other drugs, do cause nystagmus. The prosecutor then asked, “[D]id you find any of those drugs present?” Defense counsel objected on the ground that the question had been “asked and answered” and argued that Bessett had already said that he could not confirm thеm or offer evidence that those types of drugs were actually present. The court overruled the objection, and Bessett testified:
“I did detect those drugs — two drugs, Ambien and a drug called 7-Amino Clonazepam, which is a — like that EEDP, it’s a breakdown product of Clonazepam. And those two drugs are in the category of central nervous system depressants.”
Defendant also testified at trial. He stated that he was prescribed the substances found in his urine sample to treat some of his medical issues but denied taking narcotics the morning Hyson arrested him. Defendant explained that he routinely takes his medication after lunch in the mid-afternoon and he had not taken any medication the morning
In closing argument, the prosecutor called the jury’s attention to Bessett’s testimony that Ambien would explain the nystagmus that Hyson observed during the HGN test. However, the prosecutor focused on the narcotics and argued that the testing showed that, just as defendant admitted, he used methadone, oxycodone, and morphine every day and that, given Hyson’s observations of defendant’s behavior, there was ample evidence to conclude that defendant was “impaired by these drugs when he was driving.” Defendant’s counsel argued that the state had presented a case of speculation because Hyson observed nystagmus and there was no evidence of constricted pupils, which contradicted the state’s theory that defendant was under the influence of narcotics.
After closing arguments, the trial court instructed the jury that, to convict defendant, it needed to find that defendant drove while under the influence of a controlled substance. The trial court also instructed the jury, with the agreement of the parties, that “as a matter of law Methadone, Oxycodone, Percodаn, and Morphine are all controlled substances.”
After the court instructed the jury but before the jurors left the courtroom to begin deliberations, a juror asked the court a question regarding defendant’s Ambien use:
“JUROR: Okay. The case revolves around the use of Ambien. I have personal experience because I *** was prescribed that for a sleeping disorder a number of years ago, and my question revolves around — that we’re talking about the narcotics, the — the three nаrcotics, and my question is, is Ambien considered a narcotic in — or a controlled substance in this particular case. We didn’t receive testimony one way or another and I think that might factor into my decision.”
In response to the juror’s question, the court told the jurors that they had heard all of the evidence and jury instructions
“THE COURT: Okay. Well, here’s what I would tell you, is, is that all of the evidеnce is the evidence that you’ve heard and all of the instructions are the ones that I’ve given you. And this is one of the many reasons why we have more than one person as a jury to decide this. And even though that’s how you categorize it that way, you may find that your jurors will assist you in thinking of it in a different way or the same way, but help you decide that. I don’t know.
“But all of this falls within the category of what the jury decides. I’m not the one that puts on the evidence and I’m not the one that gets to comment on it. That’s something [that] is perhaps for you to ask your fellow jurors, and one of the things that comes up. But, again, I’m not even saying that.”
After the jury left, defendant objected to the court’s response to the juror’s question and contended that the court should instruct the jury that Ambien was not relevant to the case:
“[DEFENSE COUNSEL]: With regard to the juror’s question, I — I think it — had that been submitted formally, I’m going to treat it as such, even though it was an oral question not a written question, that I think [that] the appropriate instruction of the Cоurt would be that Ambien’s not relevant to the case (indiscernible). But there was — the State has charged controlled substance, to-wit: Ambien— it’s not Ambien, excuse me, the various narcotics that were listed.”
(Emphasis added.) The court determined that the juror’s question related to a factual matter for the jury to decide.
Later, during deliberations, the jury told the bailiff that they were split and submitted a written question to the court. The trial judge called the prosecutor and defense counsel back to the courtroom and read them the jury question: “Does the charge DUII * * * mean * * * under the influence * * * or * * * required impairment to drive ***?” (Internal quotation marks omitted.) After hearing from counsel for the parties, the court reinstructed the jury as to the elements of DUII and restated that
*824 “the following substances are controlled substances. So, in other words, in addition to anything you heard about this, in terms of evidence, it is also true as a matter of law that Methadone, Oxycodone, Percodan and Morphine are controlled substances as a matter of law.”
The jury then found defendant guilty of DUII, and the trial court sentenced defendant to two years of enhanced bench probation, subject to general and special conditions.
On appeal, defendant assigns error to the trial court’s failure to instruct the jury that defendant’s Ambien use was not a relevant controlled substance for which to convict defendant, relying on a three-step argument. First, defendant аsserts that the state prosecuted him on the theory that he had used narcotics and was impaired by narcotics, not Ambien. Second, in a related vein, defendant contends that, although there was evidence that Ambien is a controlled substance, as a matter of law, the state failed to establish that defendant was impaired by Ambien because there was no evidence as to the effects Ambien has on a person’s ability to drive, the amount of Ambien present in defendant’s urine sample, or the amount of Ambien that could impair a person’s driving. Third, defendant argues that, given the state’s theory and the evidence at trial, the trial court was required to instruct the jury that Ambien was not a relevant controlled substance when it became clear that the jury might consider defendant’s use of Ambien as a basis upon which to convict him. In defendant’s view, his requested jury instruction was not an impermissible comment on the evidence.
The state argues that defendant has prеserved only a narrow issue for appeal: whether the court was required to instruct the jury that Ambien was not relevant to the case. The state points out that, in response to the juror’s question, defendant requested that the court instruct the jury that “Ambien’s not relevant to the case [.] ” The state contends that defendant is now arguing points that he did not preserve for appeal, namely, that the court’s instruction to the jury was misleading and that the evidence relating to Ambien was insufficient for a jury to have found defendant guilty of DUII. We therefore begin our analysis by addressing preservation.
We turn, then, to the merits of defendant’s assignment of error — whether the court was required to instruct the jury that еvidence of Ambien was irrelevant to convict defendant of DUII. As previously noted, defendant argues that his requested jury instruction — that Ambien was not relevant— was a correct statement of the law and, therefore, was not an impermissible comment on the evidence. The state argues that the jury was entitled to rely on the Ambien evidence admitted in the case to reach its verdict.
We begin our analysis of the merits by addressing the applicable standard of review. Although the parties agree that our standard of review is for legal error, they differ over the legal question presented. Defendant cites Jones v. Baldwin,
Under ORCP 59 E, a trial court “shall not instruct” the jury “with respect to matters of faсt” or comment on the evidence. See ORS 136.330(1) (ORCP 59 is applicable in criminal cases). “A court impermissibly comments on the evidence when it gives a jury instruction that tells the jury how specific evidence relates to a particular legal issue.” State v. Hayward,
First, defendant’s request for a jury instruction was not the proper procedure to exclude evidence already in the record. The state presented evidence related to Ambien multiple times during the trial. Bessett testified that, in his screening test, he detected, but was unable to confirm, that
At no point during the state’s presentation of evidence at trial did defendant try to inform the court that the state’s evidencе regarding Ambien should be excluded based on relevance grounds; defendant did not object to or move to strike the state’s evidence of defendant’s Ambien use or its effects. See State v. Keller,
Defendant could have taken steps to exclude or to limit any testimony regarding Ambien during the evidentiary phase of the trial. Notably, defendant’s counsel did move to strike the state’s evidence of defendant’s use of the antidepressants citalopram and escitalopram, and their effects, as irrelevant, and the trial court excluded testimony concerning those drugs. Defendant’s counsel could have moved to strike the evidence concerning Ambien as well, or could have requested a limiting instruction, and he should hаve done so before defendant testified about his Ambien use. In this case, however, after the evidentiary record was closed, all of the evidence concerning Ambien was in the record. Regardless of whether the evidence of Ambien
Second, we conclude that defendant’s requested jury instruction — that Ambien is “not relevant to the case” — was not a correct statement of the law. See Williams v. Philip Morris Inc.,
Affirmed.
Notes
ORS 813.010(1) provides, in part:
“A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
sH * * *
“(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant!.]”
Bessett also described citalopram and escitalopram as prescription antidepressants, but noted that they did not have any relevant side effects alone or combined with other drugs. Defendant’s counsel moved to strike the evidence of citalopram and escitalopram as irrelevant because those drugs are not controlled substances and do not have any additive effects when combined with other drugs. The court sustained defendant’s motion and excluded any further discussion of them.
We conclude that Jones is inapposite to this case. In Jones, the jury submitted a written question during deliberations regarding the elements of conspiracy to commit murder: “Is the defendant guilty of conspiracy if he did indeed make a plan