State v. Montgomery

An argument on appeal that is qualitatively different from the one presented at trial is not preserved for review. A denial for a motion of acquittal can be based on circumstantial evidence that allows a rational trier of fact to find the elements of the crime beyond a reasonable doubt.

Defendant appealed a conviction of DUII under ORS 813.010(1), and criminal driving while suspended or revoked under ORS 811.182(4). After failing three field sobriety tests, Defendant was placed under arrest, and taken to jail where his breath sample reflected a 0.07 BAC. Defendant sought to exclude retrograde extrapolation testimony at trial on the grounds that only an expert should testify regarding the method, and that even an expert would not have sufficient facts to render a reliable opinion. At trial, the State’s expert concluded that at the time of the initial report, Defendant’s BAC was between 0.10 and 0.13. On appeal, Defendant first argued that the State failed to provide sufficient scientific evidence that retrograde extrapolation is based on scientifically valid principles. The Court held that Defendant’s argument on appeal was qualitatively different than the one he advanced to the trial court, and therefore it was not preserved for review. Second, Defendant argued that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence that he drove while under the influence of intoxicants. The Court held that there was sufficient circumstantial evidence to convict the defendant of DUII. Affirmed.