State v. Stubbs

Under ORCP 59 E, a jury is allowed to consider all evidence present on the record and a trial court is not allowed to instruct the jury as to matters of fact or comment on the evidence.

Defendant appealed a conviction of driving under the influence of intoxicants (DUII). Defendant was pulled over by a police officer after running a stop sign. The officer noticed Defendant was impaired and administered three field sobriety tests, all of which Defendant failed. Defendant took a urine test and the criminalist confirmed three different Schedule II substances present in the urine as well as Ambien. Prior to beginning deliberations a juror asked whether Ambien was a controlled substance. The trial court chose not to answer the question and instructed the jury to begin deliberations. Next, Defendant asked the court to instruct the jury that Ambien was irrelevant, but the trial court did not give the instruction. Defendant appealed. The State contended that such an instruction would be an improper comment on the evidence. Under ORCP 59 E, a trial court “shall not instruct” the jury “with respect to matters of fact” or comment on the evidence. During trial, evidence of the use of Ambien was presented multiple times by both sides and Defendant did not object or move to strike any of the evidence. Because the evidence was on the record, the jury was allowed to consider it in making its decision. Therefore, the trial court did not err. Affirmed.