In this criminal case, defendant appeals a judgment convicting her of seven misdemeanors, all of which arose from a traffic accident. Defendant contends that the trial court erred in giving a jury instruction regarding the duties of a driver and in failing to clarify the instruction. She argues that the instruction was improper and its use created a likelihood that the jury would convict her of the six charged crimes that required recklessness even if it found that she acted with a less-than-reckless mental state. We affirm.
The case was tried to a jury. During a break at trial, the prosecutor requested a special jury instruction, which was based on an instruction given in State v. Stringer,
“The driver of a motor vehicle is required by law to drive upon a highway or premises open to the public at a speed no greater than is reasonable and prudent, having due regard for the traffic, surface and width of the road, hazards at intersections and any other conditions existing. A driver has a continuing duty to keep a reasonable lookout and maintain the automobile under reasonable control, and that is such as would be exercised by a reasonable person.”
Defense counsel objected to the instruction, arguing that Stringer involved the mental state of criminal negligence, whereas defendant’s charges required recklessness, and that “including a negligence-laden instruction would create a substantial risk that the jury would convict [defendant] on a lower mental state * * * than is required in this case.” Counsel reiterated, “I believe that this creates a substantial risk that the jury will convict [defendant] based on a theory of negligence instead of recklessness [.]”
The court rejected that argument, concluding that the instruction properly stated the standard of care. Defense counsel then proposed an additional sentence that would tell the jury that “a breach of this duty is not reckless in itself.” However, after the prosecutor objected, defense counsel said, ‘Yeah, actually if — if [the prosecutor] argues what I anticipate, then it’ll kind of be a — that sentence will be a moot point, I suppose.” The court responded, “Okay. I’m not going to
Defendant appeals, raising two assignments of error. In the first, she contends that the trial court erred in giving the instruction, arguing that the instruction did not state the proper standard of care for recklessness and, therefore, was irrelevant to the charges. She asserts that the instruction suggested to the jury that it could convict her based on the mental state of negligence, rather than recklessness. In other words, she asserts that the instruction suggested to the jury that it could convict her of recklessness for breaching the general duties of a driver. In her second assignment of error, defendant contends that the trial court erred in failing to instruct the jury that a breach of the general duties of a driver “is not reckless in itself” because, in the absence of an explanation of how to apply the duties-of-a-driver instruction, the instruction likely misled the jury. The state responds that defendant did not preserve any of the arguments that she makes on appeal. Alternatively, the state remonstrates that the instruction was permissible under Stringer.
Defendant preserved the argument that she makes in her first assignment of error. In response to the court’s proposed instruction, defense counsel objected that this case was distinguishable from Stringer and that the instruction “create [d] a substantial risk that the jury will convict [defendant] based on a theory of negligence instead of recklessness.” That is, defense counsel argued that the instruction would mislead the jury because it stated the standard of care for negligence, not the standard of care for recklessness. Defendant advances the same argument in her first assignment of error.
Defendant failed to preserve the arguments that she raises in her second assignment of error. As noted above, shortly after defense counsel proposed adding a clarifying sentence to the instruction, he conceded that, “if [the prosecutor] argues what I anticipate, then it’ll kind of be a— that sentence will be a moot point, I suppose.” The court responded, “Okay. I’m not going to go there, then.” Defense counsel said, “Okay.” Thus, defense counsel withdrew his request for a clarifying sentence by conceding that it was a moot point, and the court relied on that concession in denying the request. Defendant did not propose adding any other language to the instruction.
We turn to the merits of defendant’s first assignment of error. “We review jury instructions as a whole and will reverse only if we can fairly say that the instructions probably created an erroneous impression of the law in the minds of the jurors that affected the outcome of the case.’” State v. Tucker,
Because it is dispositive, we begin with Stringer. In that case, the trial court gave a similar instruction explaining the duties of a driver on a charge of criminally negligent homicide that arose from the defendant hitting a pedestrian with his vehicle.
“‘Criminal negligence’ or ‘criminally negligent,’ when used with respect to a result or to a circumstance described by a statute defining an offense, 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 aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
ORS 161.085(10). In affirming, we noted that, in addition to giving the disputed instruction, the trial court had instructed the jury on criminal negligence “using language nearly identical to that used in [ORS 161.085(10)].”
“The law, whether criminal or civil, imposes a duty to exercise that degree of care that a reasonably prudent person would use under the circumstances. Where criminal and civil law differ is in the degree of the breach of duty which must be shown in order to give rise to liability. Civil liability for negligence may be found where there is merely an inadvertent breach of duty or imprudent conduct. The breach must be greater for criminal liability to result. The state is required to show that the accused’s conduct constituted a ‘gross deviation’ from the standard of care.
“In this case, the jury was instructed that ‘the defendant had a duty to exercise reasonable control over his vehicle, to maintain a reasonable lookout and to drive at a reasonable speed.’ The trial court completed the instruction by explaining in general terms what the duties of reasonable control, lookout and speed entail. These were correct statements of the standard of care owed by defendant and all other motor vehicle operators when using the public highways. The trial court also instructed the jury that, in order to find defendant guilty of criminally negligent homicide, it would have to find that his conduct constituted a gross deviation from this standard of reasonable care. This instruction correctly informed the jury as to the degree of the breach of duty which was requisite to a finding of criminal liability under [the criminally negligent homicide statute].”
Id. at 54-55 (citation omitted).
In the present case, in addition to giving the disputed instruction, the trial court correctly instructed the jury on the meaning of recklessness. It stated:
“A person acts recklessly if that person is aware of and consciously disregards a substantial and unjustifiable risk that a particular result will occur or a particular circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
See ORS 161.085(9); UCrJI 1037. Then the court provided the definition of each offense. See
The argument that defendant makes here is analogous to the argument that the defendant made in Stringer. There, the defendant argued that the standard of reasonable care that applied in civil negligence cases was not the same standard of reasonable care that
Similarly, here, defendant argues that the disputed instruction regarding the general duties of a driver was irrelevant. We disagree. The instruction could inform the jury’s determination of whether defendant acted recklessly.
ORS 161.085(9), defining “recklessly,” provides that “[t]he risk [that the defendant is aware of and consciously disregards] 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.” Thus, like the defendant in Stringer, a defendant charged with crimes with the mental state of recklessness has “a duty to exercise that degree of care that a reasonably prudent person would use under the circumstances.”
We note, however, that the instruction could be misused. A driver is not reckless simply because the driver violates the general duties of a driver by, for example, speeding or running a stop sign. Such conduct may constitute civil negligence, but it does not necessarily constitute criminal negligence or recklessness. Generally, criminal liability requires both an act and a culpable mental state. To prove recklessness, the state must prove that (1) there was a substantial and unjustifiable risk that a particular result would occur or that a particular circumstance existed; (2) the defendant was aware of that risk; (3) the defendant consciously disregarded the risk; and (4) the act of disregarding the risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. ORS 161.085(9). Thus, to be precise, when determining whether a driver is guilty of a reckless crime, a jury must focus on the driver’s decision making, not just his or her driving.
In sum, to conclude that defendant was reckless, as to each charge, the jury had to determine that defendant was aware of and consciously disregarded a substantial and unjustifiable risk and that her disregard of the risk was a gross deviation from the standard of care that a reasonable driver would observe in the situation. The instruction assisted the jury in its task by explaining how a reasonable person would drive.
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 section 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.”
ORS 163.160 provides, in relevant part:
“(1) A person commits the crime of assault in the fourth degree if the person:
“(a) * * * recklessly causes physical injury to another!.]”
ORS 163.195 provides:
“(1) 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.”
ORS 164.354 provides:
“(1) A person commits the crime of criminal mischief in the second degree if:
«* * * * *
“(b) Having no right to do so nor reasonable ground to believe that the person has such right, * * * the person recklessly damages property of another in an amount exceeding $500.”
The defendant was charged with second-degree manslaughter, but the jury convicted him of the lesser-included offense of criminally negligent homicide.
The court instructed the jury as follows:
“Now, the defendant had a duty to exercise reasonable control over his vehicle, to maintain a reasonable lookout and to drive at a reasonable speed. I instruct you that it is the continuing duty of a driver of a motor vehicle to keep and maintain a reasonable lookout for other vehicles or persons on the street or highway. A reasonable lookout means such as would be maintained by a reasonably prudent person under the same or similar circumstances. In determining this question you should take into consideration the extent or degree of danger reasonably to be expected. A person does not comply with the duty to keep a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same circumstances.
“I instruct you that an operator of a motor vehicle has a continuing duty to keep and maintain his or her automobile under reasonable control, and that is such a degree of control as would be exercised by a reasonably prudent person in the same or similar circumstances.
“I instruct you that a person is required by law to drive a vehicle upon a highway at a speed no greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway, the hazard at intersections, and any other conditions then existing.”
Stringer,
The difference between the two mental states is that a criminally negligent defendant grossly deviates from the standard of care of a reasonable person by failing to be aware of a risk, whereas a reckless defendant grossly deviates from the standard of care of a reasonable person by consciously disregarding a known risk. Compare ORS 161.085(10) with ORS 161.085(9).
As explained above, defendant did not preserve her argument that the trial court erred in failing to instruct the jury that a breach of the general duties of a driver “is not reckless in itself.”