State v. Morris (A186463)

724 November 12, 2026 No. 1110 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. TRENTON COBA MORRIS, Defendant-Appellant. Lane County Circuit Court 23CR53686; A186463 Stephen W. Morgan, Judge. Argued and submitted October 7, 2026. James Brewer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General. Before Tookey, Presiding Judge, Egan, Judge, and Jacquot, Judge. JACQUOT, J. Affirmed. Nonprecedential Memo Op: 354 Or App 724 (2026) 725 JACQUOT, J. In this criminal case, defendant appeals his convic- tion for driving under the influence of intoxicants (DUII). A jury found defendant guilty of DUII, and the trial court sentenced defendant to three days in jail and 24 months of bench probation. Defendant argues, in two assignments of error, that the trial court erred first by admitting the results of an improperly administered horizontal gaze nystagmus (HGN) test as evidence of impairment and second by deter- mining that the prosecutor’s failure to disclose its expert’s retrograde extrapolation calculation was not a discovery vio- lation. Because the trial court correctly admitted the prop- erly administered portions of the HGN test and suppressed the improperly administered portion, and because the trial court did not err in admitting the expert’s calculation based on the prosecutor’s hypothetical, we affirm. Defendant’s first assignment of error is that the trial court did not exclude the entirety of the HGN test with one improperly administered component. We review the admis- sibility of scientific evidence for legal error. State v. Rivera- Ortiz, 288 Or App 284, 285, 406 P3d 73 (2017), rev den, 362 Or 665 (2018). The trial court admitted the portions of the HGN test that were properly administered and excluded the por- tion of the test that was improperly administered. In sup- port of its decision, the trial court explained: “THE COURT: * * * So regarding the horizontal gaze nystagmus test, the [c]ourt does not find that each type— and the record doesn’t support an argument that each type of passing, in other words, the use of the stimulant to track lack of smooth pursuit, is not dependent—and the results thereof are not dependent on using the stimulus to track onset prior to 45 degrees and which also is independent of distinct and sustained nystagmus at maximum deviation. “The observation of nystagmus and the tools used to observe nystagmus is clearly scientific. That’s really not debated. But this case grazes the issue of—one is—whether one is dependent on the other, and there’s no evidence that it is. 726 State v. Morris (A186463) “I’ve been doing this for a lot of years, and I’ve never ever heard evidence that it is. That’s not necessarily part of this record, but I’ve never seen a case that says each is dependent on the other. And so there isn’t a record that supports that. “I understand counsel’s argument is that if there was a third phase of the test—I’ll call it a phase—but third phase of the test done that wasn’t done properly, that prejudices the defendant to allow the other ones in in some way. “I don’t find that to be the case in this case. I find that allowing them to cross—’them’ being both attorneys— cross or question the trooper regarding her failure to do it correctly, and so therefore, no information is able to be given on that, allows the defendant actually a tool to weaken, if you will, the credibility of the trooper’s presentation gener- ally and specifically to HGN.” On appeal, defendant argues that, when evidence is scientific, it can be admitted “only if the foundational requirements for admission of scientific evidence are estab- lished.” State v. O’Key, 321 Or 285, 290, 899 P2d 663 (1995). Additionally, defendant argues that we have consistently excluded testimony about an HGN test where the test was not properly administered. Defendant cites State v. Ingram, 238 Or App 720, 723, 243 P3d 488 (2010), in which we reversed based on the trial court’s admission of the HGN test results when the officer “failed to make the required number of hor- izontal passes for each eye and moved the stimulus at an improper speed” and State v. Rodriguez-Delao, 335 Or App 700, 707-08, 560 P3d 85 (2024), in which we reversed based on the trial court’s admission of the results of the HGN test when the officer failed to ask medical questions before administering the test. The state argues that the improper administration of one phase of the test does not undermine data gathered by other phases and that the trial court properly excluded the evidence regarding the third phase of defendant’s HGN test and admitted evidence of the first two phases. In O’Key, the Supreme Court held that a properly administered HGN is scientifically valid. 321 Or at 295. The state argues that the science itself illustrates that “any maladministration of Nonprecedential Memo Op: 354 Or App 724 (2026) 727 the third phase is effectively ‘harmless error’ for purposes of the HGN result” and that “its scientific conclusion of impair- ment is validly established if the person exhibits lack of smooth pursuit and onset of nystagmus prior to 45 degrees.” We agree with the state that the trial court properly admitted the two portions of the HGN test that were properly administered and properly suppressed the one portion of the test that was improperly administered. The presence of the four clues in the first two phases adequately supported the scientific assertion that the HGN was offered to prove. Id. Rodriguez-Delao and Ingram are distinguishable because, unlike here, in each of those cases, the errors undermined the validity of the HGN result. See Rodriguez-Delao, 335 Or App at 706-07 (the HGN test was improperly administered when the officer failed to ask the person about medical or psy- chological conditions, which rendered the test invalid because “[n]early anything that affects the inner ear labyrinth, includ- ing alcohol, will cause nystagmus.”); Ingram, 238 Or App at 724 (the HGN test was improperly administered—as to all six clues—when the officer “failed to make the required num- ber of horizontal passes for each eye and moved the stimulus at an improper speed and at a higher level than his training and the test manual instructed him to do.”). Defendant’s second assignment of error is that the trial court erred in determining that the prosecutor’s failure to disclose his expert’s retrograde extrapolation calculation was not a discovery violation. Whether a party violated the discovery statutes is a question of law. State v. Lindquist, 141 Or App 84, 88, 917 P2d 510 (1996). In reviewing discov- ery rulings, we are “bound by the trial court’s factual find- ings, if supported by evidence in the record.” Id. at 87. At a hearing on a motion in limine on the day of trial, while discussing an unrelated issue, the prosecutor stated: “So in that vein, just being candid with everyone, the blood test, we anticipate showing a blood alcohol content of .087. And then Jeffrey Eitner will be able to testify that based on retrograde—sorry. My apologies, Your Honor—that at the time of driving, his BAC would have been between .12 and .17.” 728 State v. Morris (A186463) After resolving the other matters at issue in the hearing, defense counsel stated that he had an additional matter for the court based on the prosecutor’s representation: “[DEFENSE COUNSEL]: Specifically, the state men- tioned that they would be using a retrograde extrapola- tion calculation in this case. I have not been provided with any materials based on—or I guess related to retrograde extrapolation. “I’d argue that under [ORS] 135.815, the DA shall dis- close, among other things, ‘any reports or statements of experts made in connection with a particular case, includ- ing results of physical and mental examinations and of sci- entific tests, experiments, or comparisons, which the dis- trict attorney intends to offer in evidence at the trial.’ “ORS 135.845(1) requires the DA to—to disclose these items as soon as practical following the filing of an indict- ment or an information. “Retrograde extrapolation is a scientific formula that is highly technical. Had the state informed me pretrial that this calculation would be employed in this case, defense would have significantly changed its theory of this case, its preparation for trial. “I have consulted an expert in this trial who is not tes- tifying because we did not believe that given the lack of discovery on this issue that retrograde extrapolation would be used. “It is a highly technical method that is based on scientific principles. Defense would need an opportunity to prepare for that argument at trial. And I—I think that there’s a couple of different remedies for a discovery viola- tion. In this case, I would ask the [c]ourt to— “THE COURT: So what specifically is the violation you’re saying occurred? “[DEFENSE COUNSEL]: No information was pro- vided to the defense that Jeffrey Eitner would be testifying about retrograde extrapolation. “THE COURT: So point me to the statute that says they have to give you that information. What you read to me was ‘reports.’ You’re required to discover reports, right? Nonprecedential Memo Op: 354 Or App 724 (2026) 729 Where is it? Give me the statute that says they’re required to give you information what witnesses are going to say. “[DEFENSE COUNSEL]: Well, Your Honor, it sounds like this calculation has already been conducted and com- pleted and that there has been some sort of result.” Defense counsel further stated, “it’s my position that if there were calculations conducted based on scientific prin- ciples pretrial that the state has knowledge of, that should have been provided to the defense pretrial so I would at least have an opportunity to prepare * * *.” The prosecutor repre- sented to the trial court that no material had been created related to the hypothetical calculation Mr. Eitner performed. The trial court ruled: “I find that based on the information that was provided to me from the state that there [are] no reports, and there is no email communication with substantive information regard- ing this extrapolation, but there is no discovery violation. “I would also find that retrograde extrapolation is a very common subject matter in DUI, driving under the influence, cases. As an attorney and (indiscernible) from the public defender’s office who tries a lot of these cases would know that and have the ability to do that. It sounds like they’ve actually consulted to a certain degree on this issue. “But there is no discovery violation, so there’s no sanc- tion to put in, and the only request at this point is to sup- press it, and there’s no legal basis to do that. So that motion is denied.” At trial, Eitner explained that retrograde extrapo- lation is based on the principle that “95 percent of the popu- lation eliminates alcohol at a rate of .01 to a .025 per hour.” Accordingly, Eitner concluded that because defendant’s blood tested at .087 percent BAC three-and-a-half hours after he drove, defendant’s BAC at the time he drove was likely somewhere between 0.12 (i.e., 0.087 – (0.01 x 3.5)) and 0.17 (i.e., 0.087 – (0.025 x 3.5)). On appeal, defendant argues that ORS 135.815(1) (c) requires disclosure of statements by expert witnesses that the state intends to offer at trial, even if they are not written down. Defendant argues that he was prejudiced by 730 State v. Morris (A186463) the discovery violation and that, accordingly, a new trial is required. ORS 135.815(1)(c) provides that the prosecutor shall disclose certain material and information within the pos- session or control of the prosecutor to a represented defen- dant, including: “Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons which the district attorney intends to offer in evidence at the trial.” The problem with this assignment of error is that defendant assumed the prosecutor had discussed retro- grade extrapolation with the expert prior to the trial and memorialized something about retrograde extrapolation in notes, which the trial court found had not occurred. Given that finding, the trial court did not err in concluding that no discovery violation had occurred. However, even if there had been a discovery violation, we agree with the trial court that excluding the expert’s testimony—the only sanction that defendant requested—would not have been an appro- priate remedy for that violation, given the relatively sim- ple nature of retrograde extrapolation as explained by the prosecutor—a subtraction/multiplication problem involving (1) the tested BAC level; (2) a single defined range of the rate at which most people eliminate alcohol from their system; and (3) the amount of time that passed between driving and testing. Under the circumstances, any delay in disclosure would have warranted, at most, a continuance to obtain the testimony of the defense expert counsel had already con- sulted to understand and verify or negate the calculation and equation used by the expert to complete it. Accordingly, we affirm the trial court’s conclusion that exclusion of the BAC calculation was not warranted in this case. Because the trial court correctly admitted the prop- erly administered portions of the HGN test and suppressed the improperly administered portion, and because the trial court did not err when it admitted the expert’s calculation based on the prosecutor’s hypothetical, because it did not warrant a sanction of exclusion, we affirm. Affirmed.