359 P.3d 516
Or. Ct. App.2015Background
- Defendant was convicted on two counts of third-degree assault, two counts of recklessly endangering another person, and multiple other traffic offenses.
- Defendant moved for a judgment of acquittal on the two third-degree assault counts arguing the state failed to prove extreme indifference to the value of human life.
- Facts show defendant, highly intoxicated (BAC 0.219), drove at high speed after drinking with friends, escalating speed after fellow passengers warned him.
- The vehicle reached about 80 mph; near a curve it left the road, crashed, and overturned; passengers and responders described defendant as combative or belligerent at the scene and hospital.
- Defendant testified he believed Rush would drive home, had taken a safety course on the hazards of drinking and driving, and that he was terrified after the crash.
- The trial court denied the motion, the jury convicted on all charges, and on appeal the court reviews the sufficiency of the evidence in the light most favorable to the state.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence supports extreme indifference to human life | State argues intoxication plus dangerous driving shows extreme indifference | Forrester/Boone require more than recklessness; no repeated recklessness shown | Yes; evidence supports extreme indifference |
Key Cases Cited
- State v. Boone, 294 Or 630 (1983) (driving while intoxicated with dangerous conduct supports extreme indifference)
- State v. Forrester, 125 P3d 47 (2005) (extreme indifference includes awareness of risk and disregard)
- State v. Belcher, 860 P2d 903 (1993) (evidence of intoxication and dangerous driving may show extreme indifference)
- State v. Johnstone, 19 P3d 966 (2001) (prior alcohol safety training relevant to defendant’s subjective awareness)
- State v. Hill, 692 P2d 100 (1984) (attitude toward consequences of acts informs extreme indifference)