Lead Opinion
Dеfendant appeals his conviction on two counts of criminally negligent homicide. ORS 163.145. He assigns as errors the court’s admission of evidence regаrding his pattern of driving before the accident giving rise to the homicide charge and its denial of his motion for judgment of acquittal. We affirm.
Defendant cоntends that the court erred by admitting testimony from the Mansers, a husband and wife who observed defendant’s driving before the accident. Defendant argues that their evidence is too remote. They had watched defendant’s driving for a 10- to 15-minute interval that ended approximately five minutes before, and two-and-a-half miles from, the collision. They testified that they had seen defendant talking to his passenger, taking his eyes off the road and swerving both inside and outside of his lane to the extent that he nearly collided with an oncoming vehicle. The court found that testimony probative, despite the time lapse and distance involved. We agree.
OEC 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact that is of consequence to thе determination of the action more probable or less probable than it would be without the evidence.”
In determining whether evidence of previous driving conduct is too remote, the courts have required that “there must be other evidence from which the jury could find that the party’s conduct sоme time and distance before the accident continued up to at least shortly before the accident.” Cox v. Jacks,
We see no reason why a pattern cannot be established through multiple observations by the same witnesses over a period of time, as happened here. The Mansers’ observations suggest a sustained pattern of inattentive and erratic driving that makes it more probable that defendant’s driving at the
Defendant also claims that the trial court erred in denying his motion for acquittal because the evidence, taken as a whole, failed to establish criminally negligent homicide. ORS 163.145 provides, in pertinent part:
“(1) A person commits the crime of criminally negligent homicide when, with criminal negligence, the person causes the death of another person.”
ORS 161.085 defines criminal negligence:
“ ‘Criminal negligence’ or ‘criminally negligent,’ * * * means that a person fails to be aware of 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 the failure to be аware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
The court, rеlying heavily on the Mansers’ testimony, found defendant guilty. Defendant argues that the state failed to prove the “reckless state of mind” requirement necessary to support a conviction. See, e.g., Smith v. Barry,
Affirmed.
Notes
We need not discuss the remaining assignments of error.
Concurrence Opinion
concurring.
I am troubled by the majority opinion because it appears to hold that separate acts of ordinary negligence by defendant occurring within two and a half miles of each other suffice to prove beyond a reasonable doubt that defendant committed criminal negligence. The trial court and the majority conclude that, although defendant was not aware that he previously had been driving оver the center line, the pattern of driving observed by the Mansers when combined with the facts of the accident resulting in the victim’s death prove that hе should have been aware of the risk that his driving was creating.
In State v. McLaughlin,
In Gonzalez v. Curtis et ux,
“The plaintiff argues that the defendant-driver was guilty of several acts of ordinary negligence and, therefore, this combination of acts presents a jury question; citing Burrows v. Nash, [199 Or 114 ,259 P2d 106 (1953)]. It should be pointed out, in this connection, that, although it may be shown that the occurrence was preceded by several acts of ordinary negligence, it is only when all of these acts combined with the existing circumstances show a fool-hardy attitude on the part of the driver that gross negligence has been established.”217 Or at 563 . (Citations omitted.)
In this case, Robin Manser testified regarding defendant’s driving just before the accident:
“The station wagon made some very large swerves into the other lane. At one point he swerved clear in the other lane in front of a white Volkswagen аnd went back into his own lane to avoid getting into an accident. He would swerve in and out of his own lane. At times he would be in his own lane swerving. A— he must have swerved three, four times, large swerves into the other lane.”
From that testimony, the trier of fact could have found beyond a reasonable doubt that defendant had a conscious indifference to the safety of others as he drove down the highway, swerving into the oncoming lane on four occasions immediately preceding the accident. Crossing the center line on more than one occasion does not constitute gross negligencе unless the conduct is accompanied by the requisite mental state. However, in this case, an inference of gross negligence may be drawn from the combination of negligent acts.
ORS 30.115(2) provides:
“ ‘Gross negligence’ refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.”
ORS 161.085(9) provides:
“ ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is аware 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 person would observe in the situation.”