State v. AlexanderState v. Alexander
Defendant was convicted of two counts of third-degree assault, ORS 163.165, two counts of recklessly endangering another person, ORS 163.195, and one count each of driving under the influence of intoxicants, ORS 813.010, reckless driving, ORS 811.140, and criminal driving while suspended or revoked, ORS 811.182. On appeal, defendant assigns error to the trial court’s denial of his motion for a judgment of acquittal on the two counts of third-degree assault, arguing that the state failed to produce sufficient evidence to support a finding that defendant’s conduct manifested “extreme indifference to the value of human life.” For the reasons that follow, we affirm.
In reviewing a trial court’s denial of a motion for a judgment of acquittal, we state the facts in the light most favorable to the state. State v. Goddard,
At first, defendant drove within the speed limit. Later, defendant accelerated and “started turning up the music a little bit.” Magley testified that Rush asked defendant to slow down and turn down the radio “two or three times,” but, instead, defendant accelerated further. Magley testified that the car reached an approximate speed of 80 miles per hour. As the car approached a curve, it made contact with some gravel on the shoulder; defendant lost control, and the car became airborne and crashed upside down into a ditch. Magley emerged first and pulled Rush from the car. The two men then attended to defendant, who was injured and still inside the car, while they waited for help to arrive.
Emergency responders removed defendant from the car and strapped him to a backboard. Deputy Sheriff Gasperson testified that defendant was “combative.” Another deputy, Freeman, testified that emergency responders had difficulty restraining defendant because he was being “belligerent.” Freeman also recalled that, at the hospital, defendant “wasn’t being very cooperative” and was “rude.” Defendant’s blood-alcohol content was measured at 0.219 approximately three hours after the crash.
Defendant testified that he drank heavily that night because he believed that Rush would be driving the group home. Defendant explained that he had been knocked unconscious in the crash and that he woke up “absolutely terrified.” Defendant also testified that, before the accident, he had taken a class “related to the hazards of drinking and driving.”
A witness, Carver, whose home is across the street from the crash site, was outside his home when the crash occurred. He testified that he heard a car coming that “started speeding up” and “sounded like the guy pushed [the gas pedal] clear to the floor.” Carver also testified that most drivers take the curve by his house at approximately 45
At the conclusion of the state’s case, defendant moved for a judgment of acquittal on the two counts of third-degree assault, arguing that the evidence was insufficient to prove anything more than that he drove recklessly while intoxicated. Defendant further argued that merely driving at an excessive speed does not satisfy the “extreme indifference” element of the third-degree assault statute. The trial court denied defendant’s motion. A jury convicted defendant on all charges.
On appeal, defendant reprises his argument to the trial court. We review the denial of a motion for a judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the state, a jury could have found that the essential elements of the offense were proved beyond a reasonable doubt. State v. McAtee,
Here, the disputed element of third-degree assault is the existence of “circumstances manifesting extreme indifference to the value of human life.”
Several cases have addressed the “extreme indifference” element in the context of driving while intoxicated, and support the proposition that a jury may find extreme indifference based on a defendant’s intoxication combined with other evidence of his or her conduct. In Boone, the Supreme Court held that the evidence supported a finding of extreme indifference to the value of human life where the defendant drove his vehicle dangerously by tailgating other cars, swerving, and driving over the center line of a highway, all while intoxicated and having a suspended driver’s license.
Here, defendant contends that the evidence at trial showed, at most, that he was reckless and inconsiderate. He also argues that, unlike the cases discussed above, there was no evidence presented that he drove erratically, and more significantly, there was no evidence that he engaged in any “repeated acts of recklessness” that would demonstrate that he “subjectively disregarded any risk of harm to others.”
We reject defendant’s characterization of his conduct. The record establishes that defendant was highly intoxicated (his blood-alcohol
Defendant’s admission that he had taken a safety course that, in his words, was “related to the hazards of drinking and driving,” further supports the jury’s conclusion. We have held that a defendant’s prior participation in alcohol safety courses may be considered for the purpose of establishing a defendant’s “subjective awareness of the risks” to others. State v. Johnstone,
In sum, because the state produced evidence sufficient to support a finding of extreme indifference to the value of human life, the trial court did not err in denying defendant’s motion for a judgment of acquittal.
Affirmed.
Notes
Defendant also argues that, to convict him on any charge, the jury had to unanimously agree. We reject that argument without further discussion. See State v. Bowen,
ORS 163.165(l)(c) provides that a person commits the crime of third-degree assault if that person “[r]ecklessly causes physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life [.] ”