1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41832

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

VICTORIA BEA MORIN ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2015 Opinion No. 11

Filed: February 25, 2015
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin , District Judge; Hon. Theresa Gardunia, Magistrate.
Decision of district court on intermediate appeal affirming judgment of conviction for driving under the influence of drugs, affirmed

. Alan Trimming, Ada County Public Defender; Heidi M. Johnson, Deputy Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello , Deputy Attorney General, Boise, for respondent.

LANSING, Judge Following a jury trial, Victoria Bea Morin was convicted of driving while under the influence of drugs. On appeal, Morin argues that the magistrate court erred by denying her motion to compel the State to produce a more detail ed disclosure of anticipated expert witness testimony and by denying her motion to exclude a blood test showing the presence of carboxy

THC, an inactive metabolite of marijuana.2 I.
BACKGROUND Morin was charged with operatin g a vehicle while under the influence of drugs in violation of Idaho Code § 18

- 8004(1)(a). 1 Prior to trial, she filed a motion to compel a discovery response and a motion in limine to exclude evidence. In the motion to compel, Morin argued
that the State had failed to provide a “ written summary or report ” relating to any expert witness testimony it would present at trial , as required by Idaho Criminal Rule 16(b)(7). In the motion in limine, Morin sought to exclude any test results showing the presence of c arboxy

- THC in Morin’s blood and any testimony linking carboxy

- THC and intoxication. Both of these m otions
were denied and the case proceeded to trial. According to the testimony at Morin’s trial, the charge arose from the following facts. Morin was parked just off of a major roadway with her hazard lights activated when a nother
driver stopped to help . The other driver testified that Morin had slurred speech, “ had a hard time logically explaining what was going on, ” and “ didn ’ t seem quite r ight. ” Morin asked for help getting to a gas station, but the other driver called law enforcement because she was concerned that Morin could not safely operate a vehicle. Corporal Jayne, an Idaho State Police officer and a certified Drug Recognition E v aluator,
was sent to the scene . Morin told the officer that she had been driving and had run out of gas. According to his testimony, Jayne made several observations that led him to believe that Morin was intoxicated or otherwise impaired: Morin had dila ted pupils and white crust on her lips; her speech was slurred and her responses were strange and often inappropriately emotional; and, she
was unable to complete simple tasks like finding her wallet. Consequently, the officer decided to administer field sobriety tests. He concluded that Morin had failed the “ walk and turn ” test and
the “ one leg stand ” test. These tests indicated that she might be under the influence of alcohol
, but Jayne did not observe any abnormalities indicative of alcohol intoxicati on during a horizontal gaze nystagmus test. T he officer therefore believe d that Morin was under the influence of a
substance other than alcohol. He confirmed this by administering a breath test that showed that
Morin had not been consuming alcohol. T he officer then asked Morin to complete additional

1 The State also brought a charge relating to the status of Morin’s driver’s license, but that charge is not at issue in this appeal.3 tests to determine what category of drug Morin had used. In one test, the officer observed a

“ lack of convergence ” of Morin’s eyes. In that test, a sober person ’ s eyes cross, i.e.
, they

converge , as they f ocus on an item that the officer moves closer to the person’s face . Morin ’ s eyes did not cross. The officer also observed that Morin had significant difficulties est imating time, failed the finger

- to

- nose test, had eye tremors and dilated pupils, and had a “ yellow

- green paste ” on her tongue. Finally, both Jayne and another officer detected the odor of burnt marijuana. 2
In addition to making these physical observations, Jayne asked Morin if she had taken any drugs , and Morin reported that she had taken several drugs, including a few prescribed psychotropic medications. She also acknowledged using marijuana, first stating that she had used it nine days earlier and then amending her description to say that she had used marijuana
the prior weekend , which would have been five to seven days earlier

. Upon considering his observations and the drugs Morin had reported using, Corporal Jayne concluded that marijuana was the drug most significantly affecting Morin. He knew that a

“ lack of convergence ” indicate s intoxication by central nervous system depressants, inhalants, dissociative anesthetics, or marijuana

. He believed that several of those categories could be excluded. For example, Morin did not exhibit the rigid muscle tone that is caused by dissociati ve anesthetics, such as PCP , and she did not display horizontal gaze nystagmus, which central

nervous s ystem depressants usually cause . After considering all of these factors, Jayne concluded that Morin was under the influence of marijuana. He obtained a blood sample in order to confirm his opinion.
The forensic scientist who analyzed the blood sample at the Idaho State Police lab explained that the lab did not look for tetrahydrocannabinol (THC), the active ingredient in marijuana, or any active metabol ite 3 of THC
, because the lab equipment used was not

2 Jayne smelled marijuana on Morin’s clothes, long after they had left the scene. The other officer smelled burnt marij uana inside the car.

3 As explained at the trial, the chemical components of a drug are broken down by the body’s normal metabolic processes. The chemicals formed by these reactions are described as “metabolites.” “Active metabolites” have independen t pharmacological effects and “inactive metabolites” are chemicals that the body has rendered pharmacologically inert. See also State ex rel. Montgomery v. Harris , 322 P.3d 160 (Ariz. 2014) (discussing various metabolites of marijuana).4 sufficiently sensitive. The lab did find venlafaxine (a drug sold under the trade name Effexor), an active metabolite of venlafaxine, an amphetamine, and carboxy

- THC. Carboxy

- THC is an
inactive metaboli te of marijuana that has no pharmacological effects and is, therefore, not a

cause of intoxication. Rather, it can be detected in a blood sample for at least ten days and up to a month after a person uses marijuana, long after the person ceases to be into xicated.
T he jury returned a guilty verdict

. Morin appealed to the district court , raising three
claims of error: (1) the magistrate court erred by denying her motion to compel an adequate discovery response ; (2) in light of the inadequacy of the State’s discovery response, the
admission of Dr. Dawson ’ s testimony amounted to a denial of due process ; and (3) the magistrate court erred by denying the motion in limine to exclude the carboxy

- THC evidence.
The district court held that (1) the magistrate court erred by denying the motion to compel, but that the denial was harmless; (2) the claim of error relating to the admission of Dr. Dawson ’ s testimony failed, to the extent it was distinguishable from the first claim, because Morin c ould not show fundamental error; and (3) the magistrate court had correctly held the evidence regarding carboxy

- THC relevant and admissible. Morin further appeals, raising the same issues that were presented to the district court.
II.
AN ALYSIS When reviewing the decision of a district court sitting in its appellate capacity, we do not directly review the decision of the magistrate court; rather, we are procedurally bound to affirm
or reverse the decisions of the district court. Bailey v. Bailey , 153 Idaho 526, 529, 284 P.3d 970, 973 (2012); State v. Korn , 148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009). W e review the magistrate court record , however, to determine whether the district court was correct in affirming or reversing the f actual findings or legal conclusions of the magistrate court. Pelayo v. Pelayo
, 154 Idaho 855, 858

- 59, 303 P.3d 214, 217

- 18 (2013) ; Bailey , 153 Idaho at 529, 284 P.3d at 973.
A. The State ’ s Discovery Response Idaho Criminal Rule 16 defines the discovery and disclosure obligations of the prosecution in a criminal case. Rule 16(b)(7) states, in relevant part: Upon written request of the defendant the prosecutor shall provide a written summary or report of any testimony that the state intends to introduce pursuant to Rules 702, 703 or 705 of the Idaho Rules of Evidence at trial or hearing. The5 summary provided m ust describe the witness ’ s opinions, the facts and data for those opinions, and the witness ’ s qualifications.

The State’s response to Morin ’ s request for expert witness disclosures stated: Dr. Dawson is an expert in toxicology and pharmacology and will as sist the trier of fact in understanding the evidence regarding the effects of drugs on the behavior and performance of the defendant as reported in this case. Dr. Dawson will utilize known and generally accepted scientific principles of absorption, distri bution, metabolization and excretion o f drugs. Testimony may include information on the effects of the drugs consumed by the defendant in this case and the possible effects of said drugs.
Morin filed a motion in limine to compel a more specific response to her discovery requests
because she anticipated that the State would proffer Dr. Dawson’s opinion that Morin was under the influence of an intoxicating substance and, in the defense ’s view, neither the opinion itself nor the basis for the opinion had bee n disclosed. The magistrate court held that the State’s response was sufficient and denied Morin’s motion

. At trial, Dr. Dawson explained the pharmacological import of Corporal Jayne’s observations and the blood tests. He opined that dilated pupils, conf using speech patterns, impairments to balance and other psychomotor function, “lack of convergence,” and a green coating of the tongue we re all diagnostic indications of marijuana intoxication exhibited by
Morin. D r. Dawson also described the physiologica l effects of the other drugs found in Morin’s blood test. Finally, a s Morin anticipated
, the State solicited Dr. Dawson ’ s opinion: Q. And based on your observations

- - your review of the reports, your observations of the field sobriety tests, do you have an opinion regarding whether or not the defendant was intoxicated on February 24, 2012? A. Yes. Q. What is that opinion? A. I believe the defendant was impaired and was unsafe to operate a motor vehicle.
Like the district court, we conclude that the magi strate erred in holding that the State’s discovery respons e complied with Rule 16(b)(7). The plain text of Rule 16(b)(7) requires the disclosure of expert witness “opinions
, ” the “facts and data for those opinions,” and also “any testimony that the State intends to intro duce pursuant to Rules 702, 703 or 705 of the Idaho Rules of Evidence.” That encompasses not only an expert’s opinion but also “scientific, technical, or other specialized knowledge” to which a qualified witness may testify in a form6 other than an opinion. See I.R.E. 702. Here, Morin’s discovery requests sought disclosure of “any testimony that the State intends to intro duce pursuant to Rules 702, 703 or 705 of the Idaho Rules of Evidence . . . including the witnesses’ opinions, the facts and data for those opinions, and the witnesses’ qualifications.” The State’s response disclosed none of those things other
than Dr. Dawson’s qualifications (provided via a copy of his curriculum vitae) . The generic response vaguely described the subject matter, not the content, of Dr. Dawson’s anticipated testimony

. It did not disclose one fact or opinion to which he would testify. As federal courts applying the an alog federal criminal rule have held, a mere list of topics or general subject matter about which an expert witness may testify is not a discovery response that complies with the
rule. United States v. Beavers , 756 F.3d 1044, 1054 (7th Cir. 2014); U nited States v. Duvall , 272 F.3d 825, 828 (7th Cir. 2001); United States v. White , 492 F.3d 380, 407 (6th Cir. 2007); see also Murphy

- Bey v. United States , 982 A.2d 682, 688 (D.C. Cir. 2009) (applying the analogous District of Columbia rule and concluding that a list of topics is not a summary of a witness’s opinions).
Even if the State did not know what some of the details of Dr. Dawson’s testimony would be at the time of the initial discovery response, I.C.R. 16(j) impose s a continuing duty to supplement the re sponse if a party later discovers or dec ides to use additional evidence. Discovery rules are drafted to safeguard the truth

- seeking function of trials. The rules are designed to “promote fairness and candor,” “facilitate fair and expedient pretrial fact gathering,” and “prevent surprise at trial.” E dmunds v. Kraner , 142 Idaho 867, 873

- 78, 136 P.3d 338, 344

- 49 (2006) (discussing similar r ules applicable to civil cases); s ee also cmt. 1993 Amendment to Federal Rule of Criminal Procedure 16 (“The amendment [requiring the disclosure of expert opinion testimony] is intended to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expe rt’ s testimony through focused cross

- examination.”). These purposes are not accomplished by a generic discovery response of the type presented here. The State argues, however, that under the Idaho Supreme Court’s decision in State v.
Koch , 157 Idaho 89, 334 P.3d 280 (2014), its discovery response was adequate. In Koch , the defendant was charged with lewd conduct with a minor. T he State ’s discovery response
described the anticipated testimony of its expert, Mydell Yeager, as follows:7 Ms. Yeager’s curriculum vitae is attached. She’ll testify to the dynamics of delayed disclosure as it relates to child sexual abuse. The state intends to elicit expert testimony from Mydell Yeager regarding behavior of children who have been sexually abused and Ms. Yeager will testify that it is rare that a child immediately discloses their sexual abuse especially when they know the perpetrator. Ms. Yeager will testify about the dynamics of child sexual abuse as it relates to grooming a victim, keeping the a buse secret, the effects and threats on whether a child chooses to disclose.

Id. at 93

- 94, 334 P.3d at 284

- 85. Prior to trial, the defendant argued that this disclosure was insufficient, and the court overruled the objection. On appeal, Koch argued that the State’s disclosure was not an adequate summary of Yeager’s opinion and that the State had not disclosed the facts and data for those opinions as required by I.C.R. 16(b)(7) . The Supreme Court disagreed. The Court noted that the disclosure informed K och of the main opinion to which Yeager was going to testify
, and while it did not specifically disclose that Yeager’s opinions were based on her training and experience, “which would be the better practice,” it did provide
he r curriculum vitae that presum ably disclosed her education and experience. Koch , 157 Idaho at 95, 334 P.3d at 286. So far as disclosed by the Supreme Court’s opinion, the defendant did not argue that Yeager testified to any other significant opinions that were not set forth in the
di scovery response or other scientific or technical information for which disclosure was required by Rule 16(b)(7). Thus, in Koch , the State’s discovery response actually did provide a summary of the testimony for which disclosure was required. Here, by c ontrast, the State’s discovery response divulged no component of
Dr. Dawson’s testimony, and certainly not the opinion to which he ultimately testified, that Morin “was impaired and was unsafe to operate a motor vehicle.” Therefore, we hold that the
distr ict court correctly concluded that the magistrate court erred in denying Morin’s motion to compel a more adequate discovery response.
We next must review the district court’s determination that this error was harmless.
Idaho Criminal Rule 52 provides tha t “ a ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. ” The Idaho Supreme Court has said that this
I.C.R. 52 standard is equivalent to the ordinary harmless error analysis: “ If a substantial right is not affected, an abuse of discretion may be deemed harmless. To establish harmless error, the State must prove beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained. ” State v. Parker , 157 Idaho 132, 140, 334 P.3 d 806, 814 (2014) (internal8 citations and quotations omitted); see also State v. Perr y , 150 Idaho 209, 221, 245 P.3d 961, 973 (2010) (quoting Chapman v. California , 386 U.S. 18, 24 (1967)). 4 Morin cites portions of Dr. Dawson ’ s testimony that
, she asserts, she would have challenged further if given a proper pretrial disclosure. First, Morin contends she would have been better able to respond to Dr. Dawson’s opinion that the carboxy

- THC in the blood may
indicate either chronic use or acute exposure to marijuana

. However, this testimony is consistent
with and cumulative of testimony that had already been solicited by Morin from another witness
, t he lab analyst. That witness had explained that carboxy

- THC may be found in the bloodstream for up to thi rty days after marijuana use , that the amount would depend upon frequency of use, and that the mere presence of carboxy

- THC could not be used to determine how long ago a
person had used marijuana. Accordingly, Morin was not prejudiced by the lack of notic e of
Dr. Dawson’s testimony on this point

. Next, Morin complains of a lack of notice that Dr. Dawson would identify some of the signs of intoxication that would lead him to believe that a person was impaired and would
describe possible drug interactions between marijuana and the drugs found in Morin ’ s blood sample. We conclude that Morin was not prejudiced with respect to this testimony. Although
the State ’ s discovery response did not include these specifics, Morin was on notice that these subjects wou ld be covered . The disclosure states that Dr. Dawson ’ s testimony would “ i nclude information on the effects of the drugs consumed by the defendant in this case

. ” Moreover,
defense counsel’s argument on her motion to compel acknowledge d her anticipation that
Dr. Dawson would so testify. Morin ’ s counsel also acquired information used to cross

- examine
Dr. Dawson, including pharmaceutical fact sheets and the like, as evidenced by her thorough

cross

- examination. It is also significant that Dr. Dawson spoke with Morin’s counsel the week before trial, and told her that he would opine that Morin was “under the influence of marijuana, venlafaxine, and the metabolite of venlafaxine. ” He explained that he had come to this

4 On appeal, Mori n argues that the district court put the burden of proving harmlessness on her, rather than the State. It is not clear that the district court erred and we need not decide that issue. An appellate court may affirm a lower court’s decision on a legal theo ry different from the one applied by the lower court. In re Estate of Bagley , 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990). T o the extent the district court applied an incorrect harmless error analysis, we affirm using the proper analysis.9 conclusion after reviewing Corporal Jayn e ’s report and the lab reports. This conversation effectively supplemented the State’s discovery disclosures. Lastly , Morin argues that she was ambushed by testimony concerning venlafaxine

. Dr. Dawson testified that central nervous system depressants gene rally cause abnormal horizontal gaze nystagmus, but that this side effect was not associated with the depressant found
in Morin ’ s blood sample, venlafaxine. Morin argues that this opinion is erroneous, that it was inconsistent with Corporal Jayne ’ s genera l testimony that central nervous system depressants cause horizontal gaze nystagmus
, and that Dr. Dawson was unable to cite a source for his
contention

. It appears that timely disclosure of this opinion would have enabled Morin to more effectively cross

- e xamine Dr. Dawson or Corporal Jayne . If Dr. Dawson’s statement was

accurate , Morin could have impeached Corporal Jayne and shown the limits of his expertise. If
Dr. Dawson’s statement was erroneous , she could have impeached Dr. Dawson. But, our
determin ation of harmfulness turns upon the value of this impeachment evidence. Showing that Corpo ral Jayne did not know the side effects of every type of medication would have been only slightly impeaching. S howing that Dr. Dawson was mistaken (or intentionally dishonest) might
have somewhat undermined his effectiveness as a n expert witness , but we nonetheless conclude that the error is harmless. The fact that Morin was impaired at the time of her arrest was well
established through other witnesses

. Corporal J ayne’s testimony tended to rule out venlafaxine as the cause of the intoxication, while Dr. Dawson’s testimony did not. However, whether Morin was under the influence of both venlafaxine and marijuana or only marijuana was not a material issue, as proof o f a singular intoxicating agent was not required for the State to prove Morin’s guilt. Because the value of this impeachment evidence was so limited, we conclude beyond a reasonable doubt that the lack of pretrial disclosure of Dr. Dawson’s testimony regarding venlafaxine did not contribute to the verdict. Therefore, the district court correctly
held that the error was harmless. In light of this concl usion, we need not separately address Morin’s assertion that the inadequate discovery response violated his right to due process. Certainly due process requires that a defendant be afforded “a meaningful opportunity to present a complete defense.” Califo rnia v. Trombetta , 467 U.S. 479, 485 (1984). Here, because we conclude that the error was harmless, the error was not so prejudicial that it deprived Morin of an opportunity to present
a defense.10 C

. Evidence Concerning Carboxy

- THC W as Properly Admitted The State presented evidence that carboxy

- THC was found in Morin ’ s blood . On appeal, Morin argues that this evidence should have been excluded as irrelevant because carboxy

- THC is not an intoxicant. She also argues that the opinions given by Dr. Dawson and Corporal Jayne should be excluded because they were based, at least in part, upon the carboxy

- THC evidence.
T he Idaho Supreme Court has recognized that carboxy

- THC is not an intoxicant
, Reisenauer v. State, Dep ’ t of Transp. , 145 Idaho 948
, 950

- 51, 1 88 P.3d 890 , 892

- 93 (2008) , b ut,
Reisenauer does not hold that evidence concerning carboxy

- THC is irrelevant in a criminal trial. That case was an appeal from the administrative suspension of Reisenauer’s driver’s license
because he gave a urine sample th at tested positive for carboxy

- THC. Und er the applicable law,
I.C. § 18

- 8 002A (4) , administrative license suspension required proof that the driver submitted to evidentiary testing “ and the results of the test indicate

. . . the presence of drugs or other intoxicating substances

. ” The Supreme Court held that evidence of carboxy

- THC in a driver’s
blood did not support suspension of Reisenauer’s license because carboxy

- THC was neither a drug nor intoxicating. Th is case, unlike Reisenauer , does not turn upon whether Morin failed a drug test , and a ccordingly, the disposition in Reisenauer is not applicable here

. The statute under which Morin was charged, Idaho Code section 18

- 8004(1)(a), prohibits driving “ under the influence of alcohol, drugs or any other i ntoxicating substances, or any combination of alcohol, drugs and/or any other intoxicating substances . . . .” In a prosecution under that statute, carboxy

- THC evidence is relevant when the State also presents evidence of present marijuana impairment. In State v. Stark , 157 Idaho 29, 333 P.3d 844 (Ct. App. 2013) , we explained: A person is under the influence, for purposes of section 18

- 8004, if the person ’ s ability to drive is impaired in some identifiable way by alcohol, drugs, intoxicating substances, or some combination thereof. The State may prove that a person is under the influence of alcohol, drugs, or an intoxicating substance by a totality of the evidence. A totality of the evidence has been defined to encompass circumstantial evidence of impa ired driving ability or other observable symptoms of intoxication. However, to prove that a person is guilty of driving under the influence, the State must prove more than a driving impairment. The State must also present evidence, besides the impairment itself, to prove that the impairment was caused by alcohol, drugs, or intoxicating substances. See I.C. § 18

- 8004(a)(1). In other words, proving an impairment does not prove the cause of the impairment.11 Stark , 157 Idaho at 31 , 333 P.3d at 846 (citations and quotation marks omitted). W e then held that the State had provided sufficient evidence of impairment, but that the State’s evidence of carboxy

- THC in the defendant’s blood was not sufficient to prove that marijuana use cause d the impair ment. We explained that while evidence of the presence of carboxy

- THC in a blood sample showed past marijuana use , such e vidence of past drug use would be relevant to a charge of driving under the influence of that drug only if the State proves a connecti on between the past drug use and a driver ’ s impairment when the motor vehicle was operated. Id. at 33, 333 P.3d at
848. We concluded that the State had not provide d the required connection in Stark’s case

. In this case, by contrast, the State linked t he evidence of carboxy

- THC in Morin’s blood

to her impairment. The State presented evidence that Morin was impaired: she slurred her speech, gave strange responses to an officer ’ s questions, and failed numerous field sobriety tests ; and the State linked t his intoxication to marijuana use through both the carboxy

- THC evidence and other evidence that Morin’s appearance and behavior were indicative of marijuana
intoxication. Witnesses indicated that Morin ’ s pupils were dilated, she had abnormal eye
tremors, her tongue had a yellow

- green coating
, and she failed a “ lack of convergence ” test. There was testimony that e ach of these factors indicated that Morin was under the influence of marijuana. The carboxy

- THC evidence supported this theory by showing that Morin had indeed used marijuana. Thus, although as we held in Stark , carboxy

- THC evidence, standing alone, is not sufficient to prove that marijuana use was the cause of intoxication, carboxy

- THC evidence is relevant when combined with other evidence indicating the driver’s recent marijuana use. The Idaho Rules of Evidence do not require that any particular piece of evidence completely prove the proponent’s case. Rather, evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” I.R.E. 401. E vidence that carboxy

- THC
was found in an impaired pe rson’s bloodstream make s it more likely that marijuana use caused the impairment

. Accordingly, the carboxy

- THC evidence and associated testimony of Corporal Jayne and Dr. Dawson were relevant.
III.
CONCLUSION
We hold that the State ’ s discovery response was deficient as a matter of law , but that the deficiency does not warrant reversal. We also hold that the evidence showing that there was12 carboxy

- THC in Morin ’ s bloodstream was relevant and properly admitted . Therefore, we affirm
the appellate decision of the district court affirming Morin’s judgment of conviction. Chief Judge MELANSON and Judge GUTIERREZ CONCUR.