Dеfendant, while intoxicated, lost control of his vehicle and drove it off of a rural road. As a result of the accident, one of his passengers suffered fatal injuries and another was seriously injured. A jury found dеfendant guilty of manslaughter in the first degree, manslaughter in the second degree, assault in the third degree, driving under the influence of intoxicants (DUII), reckless driving, and reckless endangerment of another person. On аppeal, he maintains that the trial court erred with respect to matters involving jury selection, the admission of unfairly prejudicial evidence of uncharged conduct, and the evaluation of his blоod alcohol content at the time of the accident. We affirm.
Because defendant was convicted after a jury trial, we state the facts in the light most favorable to the state.
State v. Johnson,
Defendant’s first trial ended in a hung jury. On retrial, hе was convicted of the crimes specified above.
In his first assignment of error, defendant argues that the court should have excused one of the members of the jury pool, Card, for cause. Card was a journalist in the local community. In the process of reporting on defendant’s first *542 trial, he had read the police records regarding the accident. Defendant moved to remove him for cause because he had been exposed to inadmissible evidence and that exposure would unalterably taint his ability to deliberate based only on evidence presented at trial. The trial court denied the motion, concluding that Card would be able to follow jury instructions and set aside any independently acquired knowledge in order to decide the case based only on what was presented at trial. Defendant subsequently used one of his peremptory challenges to remove Card from the jury.
Defendant argues that failing to remove Card for cause created a fundamentally unfair triаl in violation of the state and federal guarantees of “an impartial jury.” Acknowledging that Card did not, in fact, sit on the jury, defendant argues nonetheless that, because he had to use one of his perеmptory challenges on Card, he might have used the challenge differently had the court removed Card for cause.
We doubt that the court’s decision not to remove Card was an abuse of discretiоn. Defendant’s argument relies on the assumption that, because Card had independent knowledge of some possibly inadmissible facts regarding the case, he had to be removed. That is not the law. “[A] prospective juror’s prior knowledge concerning a case does not disqualify the juror unless the juror has ‘such fixed opinions that [he or she] could not judge impartially the guilt of the defendant.’ ”
State v. Rogers,
More fundamentally, however, it is well settled that, as the state argues, “the erroneous overruling of a challenge for cause is not prejudicial error even if the defendant was forced to use a peremptory challenge to excuse the juror, as long as, in the end, it does not apрear that the defendant was compelled to accept an objectionable juror on the jury.” The Supreme Court has so held.
State v. Douglas,
In his second and third assignments of error, defendant argues that the trial court erred in admitting evidence of a prior DUII conviction and, along with evidence of the conviction itself, newspaper articles that he was assigned to read and letters that he was assigned to write in response to those articles as required by his probation for that conviction. The two newspaper articles described two diffеrent car accidents that were the result of drunk and reckless driving, respectively. The articles were heavily redacted, and all that remained for the jury were the headlines. The letters in question wеre not redacted.
Defendant concedes that the evidence was relevant to prove that he acted recklessly, that is, that he was “aware of and consciously disregarded] a substantial and unjustifiablе risk * * ORS 161.085(9) (emphasis added). Recklessness, of course, is an element of reckless driving, ORS 811.140. 1 and of recklessly endangering another person, ORS 163.195. 2 Defendant maintains that, despite its relevance, the evidence was overly prejudicial under OEC 403, 3 as well *544 as cumulative; the stаte could have made its point by introducing evidence that defendant had attended a Victim Impact Panel.
We review the trial court’s ruling for abuse of discretion, and we generally defer to the triаl court’s decision whether the probative value of evidence is substantially outweighed by the potential for prejudice.
State v. Williams,
Defendant’s final two assignments of error deal with evidenсe of his BAC. He argues, first, that the evidence derived from the hospital test was inadmissible because the state failed to establish that the test was performed according to procedures estаblished by statute. Second, he argues that the court erred in not allowing testimony from an expert that the BAC derived by the hospital test, .086, was artificially elevated because that test used only blood plasma instead of whole blood. The expert would have testified that the relevant scientific community discounts plasma results by 15 percent, so a more accurate reading of defendant’s BAC was .073.
These assignments of error present interesting questions, but we need not address them. That is so because, under ORS 813.010(1), a person commits the offense of driving under the influence of intoxicants if he or she has a BAC *545 of. 08 or more, or if the person is “under the influence of intoxicating liquor, a controlled substance or an inhalant,” or if the person is “under the influence of any combination of intoxicating liquor, an inhalant and a controlled substаnce.” ORS 813.010(l)(a)-(c). Defendant admitted that he. was under the influence of intoxicants to such an extent that he was “impaired.” He testified as follows:
“[Defense Attorney:] Okay. So you get there at three. You’rе hanging out with your friends. Um, what happens while you’re there?
“[Defendant:] Well, uh, we smoked some pot when we were there.
4? ífc Hí %
“[Defense Attorney:] Okay. Now smoking pot and driving a vehicle. Does that affect your аbility to drive?
“[Defendant:] Um, yes, it does.
tt* * * * *
“[Defense Attorney:] How much had you had to drink this day? The day of the accident. Excuse me.
“[Defendant:] Less than ten cups of beer.
“[Defense Attorney:] Okay. Over what time period please?
“[Defendant:] Uh, seven hours.
“[Defense Attorney:] When you say less than ten cups, can you give a more specific number?
“[Defendant:] I’ll say ten. I think ten’s fair.
* * * *
“[Prosecutоr:] You admit, after drinking ten beers and smoking marijuana, you were, in fact, intoxicated when you left that party.
“[Defendant:] Yes. I had some level of intoxicant. Yeah.
“[Prosecutor:] You were impaired.
“[Defendant:] Yes.”
*546
We have held that, when a defendant admits not only that he consumed intoxicants, but also that he was intоxicated, any error regarding BAC evidence is harmless.
State v. Coen,
Affirmed.
Notes
ORS 811.140 provides:
“(1) A person commits the offense of reckless driving if the person recklessly drives a vehicle upon a highway or other premises described in this seсtion in a manner that endangers the safety of persons or property.
“(2) The use of the term ‘recklessly’ in this section is as defined in ORS 161.085.
“(3) The offense described in this section, reckless driving, is a Class A misdemeanor and is applicable upon any premises open to the public.”
A person acts “recklessly” as defined in ORS 161.085(9) when
“that [ ] person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable pеrson would observe in the situation.”
ORS 163.195(1) provides, “A person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”
OEC 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, *544 confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”