We agree with the trial court that the “verbal” aspects of defendant’s performance were clearly testimonial under Fish. 321 Or at 60. Accordingly, the court properly excluded evidence of defendant’s counting in the walk-and-turn and finger-count tests, and reciting the alphabet in the Romberg test. We do not agree, however, with the court’s ruling on the “physical” components of those tests. In Nielsen, 147 Or App at 306, we drew the following conclusions from Fish: “First, from Fish, we understand that ‘testimony’ is the communication by words or conduct of an individual’s thoughts, beliefs or ‘state of mind.’ Thus, purely verbal answers to purely verbal questions (‘On an intoxication scale of 1 to 10, I think I rank a 2.’) are testimony, as are answers by conduct to the same question (<HOLDING>). * * * [W]e also understand that, as a general
holding that the evidence supported two separate convictions and punishments for two attempted robberies of two different victims who suffered separate and distinct harms holding that two unlawful sales of narcotics to the same purchaser on consecutive days constituted two offenses punishable separately holding that circumstantial evidence may support temporal link between defendants intoxication and his driving holding up two fingers to selfrank intoxication on a 1 to 10 scale holding that evidence of intoxication together with the circumstances of the accident were sufficient to demonstrate recklessness