S057879, Opinion — State v. Willis

566
Argued and submitted May 18, at North Medford High School, Medford, Oregon,
decision of Court of Appeals reversed; judgment of circuit court reversed, and case
remanded to circuit court for further proceedings July 29, 2010
STATE OF OREGON,
Respondent on Review,
v.
DANA JO WILLIS,
Petitioner on Review.
(CC CFH060180; CAA134794; SC S057879)
236 P3d 714
CJS, Criminal Law § 1132.

Cite as 348 Or 566 (2010) 	567
En Banc
On review from the Court of Appeals.*
Garrett 	A. 	Richardson, 	Multnomah 	Defenders, 	Inc.,
Portland, argued the cause for petitioner on review.
Erika L. Hadlock, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With her on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judg-
ment 	of the circuit court is 	reversed, 	and 	the case is
remanded to the circuit court for further proceedings.
* Appeal from Umatilla County Circuit Court, Jeffrey M. Wallace, Judge. 230
Or App 215, 213 P3d 1286 (2009).

568 	State v. Willis
GILLETIE, J.
This is a criminal case in which defendant was con-
victed after a jury trial of the crime of unlawful possession of
a 	controlled substance-in this case, methamphetamine.
Defendant appealed her conviction to the Court of Appeals,
asserting that the trial court erred in admitting a scientific
report authored by a state police criminalist that identified a
particular substance seized from defendant as methamphet-
amine. (The criminalist was not present to testify.) The state
conceded that the admission of the report without supporting
testimony from the criminalist was error, but asserted that
the error was harmless. The Court of Appeals agreed and
affirmed defendant's conviction. State v. Willis, 230 Or App
215, 213P3d1286 (2009). We allowed defendant's petition for
review and, for the reasons that follow, now reverse the deci-
sion of the Court of Appeals and the judgment of the trial
court.
We take our statement of facts from the opinion of
the Court of Appeals:
"Officer Washburn of the Hermiston Police Department
went to a convenience store to investigate a report that
some people had not paid for food that they had eaten. Upon
arrival, Washburn saw defendant and two other people at
the store and, after a brief encounter, arrested defendant
for disorderly conduct. After advising defendant of her
Miranda rights and before taking her to the police station,
Wash burn asked defendant if she had any contraband.
Defendant briefly hesitated and then said, 'Yes, she had
some stuff.' Washburn removed defendant's handcuffs in
the presence of another officer. Defendant reached under
her sweatshirt and into her bra and pulled out a vial and a
bindle of marijuana. It appeared to Washburn that the vial
was a Chanel perfume container; however, Washburn had
not seen perfume in the crusted and dried form that he saw
in the vial, and it was his belief, 'not absolute,' that the vial
contained crystal methamphetamine. The [Oregon State
Police crime] laboratory report later identified the contents
of the vial as methamphetamine. [At her trial, d]efendant
sought to exclude the laboratory report, asserting that
admission of the report without also producing its author
violated her Sixth Amendment right to confront witnesses.

Cite as 348 Or 566 (2010) 	569
The 	trial 	court admitted the report over defendant's
objection.
"Washburn testified at trial that he recognized the sub-
stance in the vial as methamphetamine. At the time of the
trial, Washburn had been a police officer for 14 years and
had had extensive training as a drug recognition expert and
training relating to drug-impaired drivers and metham-
phetamine labs. Most of the training pertained to metham-
phetamine. In 1998 and 1999, when he was with the
Hillsboro 	Police 	Department, 	Washburn 	had 	received
awards for making the most arrests in the State of Oregon
for drug-impaired driving."
Id. at 217-18. A jury convicted defendant of unlawful posses-
sion of a controlled substance, methamphetamine.
Defendant appealed her conviction to the Court of
Appeals, arguing that, under this court's decision in State v.
Birchfield, 342 Or 624, 157 P3d 216 (2007), admission of the
laboratory report without requiring the author of the report
to testify concerning it was reversible error. The state con-
ceded that admission of the report without the supporting
testimony was error, but urged the Court of Appeals none-
theless to affirm defendant's conviction because, the state
asserted, the error in admitting the report was harmless. The
Court of Appeals agreed with the state. It reasoned:
"[A]side from an undeveloped challenge in closing argu-
ment, defendant did not seriously dispute whether the sub-
stance in the vial was methamphetamine. * * * In the over-
all context of the case, including Washburn's testimony
that the vial, concealed in defendant's bra, contained meth-
amphetamine and defendant's admission to Washburn that
she had contraband, and in the absence of an attempt on
defendant's part to contend that the contents of the vial was
anything other than methamphetamine, * * * [citation
omitted], we conclude that there is little likelihood that the
admission of the report affected the jury's verdict, and that
the error was harmless * * *."
Willis, 230 Or App at 223. As noted, we allowed defendant's
petition for review.
In this court, the parties focus not on whether there
was a Birchfield error-as noted, the state conceded that

570 	State v. Willis
point-but on whether the error was harmless. As a prelimi-
nary matter, we focus on two separate statements by the
Court of Appeals on which the state relies. The state first
points to the Court of Appeals' statement that, "aside from an
undeveloped challenge in closing argument, defendant did
not seriously dispute whether the substance in the vial was
methamphetamine." The state also endorses the Court of
Appeals' observation that there was no "attempt on the part
of defendant to contend that the contents of the vial [were]
anything other than methamphetamine."
We respectfully disagree with both of those state-
ments. It is true that the defendant did not give a great deal
of attention to the identification of the contents of the vial,
either in her closing argument or elsewhere in the trial. How-
ever, she did contest that identification, most notably in the
following statements by her lawyer in closing argument:
"Is [the evidence that the jury had heard, including the
unexplained laboratory report] enough? Is that enough for
you the jury to believe-to know, to know beyond a reason-
able doubt that that was the substance tested and that that
was the result of the test?
"Is that enough for you ladies and gentlemen, to know
beyond a reasonable doubt that the proper tests were done,
that the error rate of those tests performed did not fall out-
side of accepted tolerances for these tests?
"Is that enough for you to know, ladies and gentlemen,
in sum, [that] the white junk in the bottle is methamphet-
amine? Is that enough?"
In our view, the quoted statements establish that defendant
made an issue of each element of the charged offense, includ-
ing the identity of the alleged controlled substance. The
Court of Appeals' characterization of defendant's argument
thus was mistaken.
We also take issue with the second part of the rea-
soning of the Court of Appeals on which the state relies, i.e.,
that court's assertion that there was no "attempt on the part
of defendant to contend that the contents of the vial [were]
anything other than methamphetamine." Defendant was not
required to contend that the vial's contents were "anything
other" than methamphetamine; defendant bore no burden of

Cite as 348 Or 566 (2010) 	571
proof or persuasion in the proceeding. She was entitled to
content herself with arguing that the state had not proved by
the requisite degree of persuasiveness that the contents of
the vial were what they were alleged to be. The contrary
statement of the Court of Appeals thus was improper. With
those preliminary observations in mind, we return briefly to
a review of our decision in Birchfield.
In Birchfield, this court held that a statute, ORS
4 75.235 (2001), which made criminalist reports like that
involved in this case prima facie evidence of the criminalist's
findings and gave criminal defendants the right to subpoena
and cross-examine the criminalist who authored the report,
denied defendant his right of confrontation under Article I,
section 11, of the Oregon Constitution. Birchfield, 342 Or at
631-32. 1 Because the law on that point is clear, we agree with
the parties that the trial court's contrary ruling in the pres-
ent case was error. The remaining issue is whether the error
is one that requires reversal of the trial court's judgment or
whether, instead, the error was "harmless"-i.e., whether
this court is of the opinion "that the judgment of the court
appealed from was such as should have been rendered in
the case." Article VII (Amended), section 3, of the Oregon
Constitution.
Under Article VII 	(Amended), 	section 3, 	of the
Oregon Constitution, an appellate court must "affirm a con-
viction, notwithstanding any evidentiary error, ifthere is lit-
tle likelihood that the error affected the verdict." State v.
Gibson, 338 Or 560, 576, 113 P3d 423, cert den, 546 US 1044
(2005). The court's inquiry
"must focus 'on the possible influence of the error on the
verdict rendered, not whether this court, sitting as a fact-
finder, would regard the evidence of guilt as substantial
and compelling.'*** That inquiry requires us to examine
the nature of the error that occurred below and the context
of that error. * * * If the particular issue to which the error
pertains has no relationship to the jury's determination of
1 The Supreme Court of the United States reached a similar conclusion under
the Sixth Amendment in Melendez-Diaz v. Massachusetts, 557 US __ , 129 S Ct
2527, 174 L Ed 2d 314 (2009).

State v. Willis
its verdict, then there is little likelihood that the error
affected the verdict." 2
Id. (citations omitted).
In the present case, the indictment charged that
defendant,
"on or about October 17, 2005, in Umatilla County, Oregon,
did unlawfully and knowingly possess methamphetamine,
a schedule II controlled substance * * *."
Such possession is a Class C felony. ORS 475.894. Both par-
ties appear to recognize-and we agree-that the specifica-
tion in the indictment that the controlled substance that
defendant possessed was "methamphetamine" required the
state to prove beyond a reasonable doubt that the substance
in the vial seized from defendant was, in fact, methamphet-
amine and not some other substance.
The state relied on the following evidence to prove
the identity of the substance in the vial: (1) The fact that
defendant produced the substance in response to Washburn's
question whether she possessed "contraband"; (2) the appear-
ance of the substance itself; (3) Officer Washburn's "belief'
(which he admitted was "not certain") that the substance
that he saw in the vial was methamphetamine; and (4) the
laboratory report that declared that the substance was, in
fact, methamphetamine. As already noted, defendant prop-
erly and timely objected to admission of the laboratory report
without the supporting testimony of the criminalist who had
prepared it, but that objection was erroneously overruled.
When the erroneous ruling is examined in context,
its significance is apparent: The report went to "the heart of
* * * the case." State v. Davis, 336 Or 19, 34, 77 P3d 1111
(2003) (using that description to explain why certain eviden-
tiary error is not harmless). The state had no witness who
could affirmatively identify the substance in the vial as meth-
amphetamine. Defendant's verbal act in giving up the sub-
stance established only that it was "contraband." The only
2 The foregoing statement of the law does not purport to estahlish a separate or
different inquiry when the evidence in question is, as it is in this case, scientific
evidence. The test is equally applicable whether the evidence in question is scien-
tific or ordinary.

Cite as 348 Or 566 (2010) 	573
witness even to suggest that the substance was methamphet-
amine was Washburn, and he admitted that he was not sure.
The substance was not self-identifying, as certain other sub-
stances might be-the substance could have been metham-
phetamine, but it also could have been, inter alia, cocaine, or
heroin, or a harmless white crystalline substance. Without
the laboratory report, that was all the evidence that the state
had. We certainly cannot say that the evidence that the sub-
stance was methamphetamine was overwhelming.
In light of the other evidence in this case, a chemical
analysis was necessary to establish the identity of the sub-
stance in the vial in a persuasive way, which presumably is
why the state offered the laboratory report. Science either
can turn suspicion into probability, or it can establish that
the substance was not the specific controlled substance
alleged in the indictment (or, indeed, was not a controlled
substance of any kind). Any juror would wish to have the sci-
entific answer, and could be expected to give it weight. Far
from being able to say, on this record, that there was "little
likelihood" that any error in admitting the laboratory report
"affected the verdict," we conclude that there was a high like-
lihood that the improperly received report did affect the ver-
dict. The error was not harmless. 3 The contrary conclusion of
the Court of Appeals was incorrect.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
3 In so holding, we leave open the possibility that, on a different record, erro-
neous admission of a laboratory report could be harmless.