STATE OF OREGON, Respondent on Review, v. DEVIN S. LEWIS, Petitioner on Review.
(CC CR090164; CA A144772; SC S059739)
In the Supreme Court of the State of Oregon
Argued and submitted June 13, decision of Court of Appeals and judgment of circuit court affirmed November 8, 2012
352 Or. 626 | 290 P.3d 288
Jona J. Maukonen, Harrang, Long, Gary, Rudnick, P.C., Portland, argued the cause and filed the briefs for petitioner on review. With her on the briefs were James E. Mountain, Jr., and Sivhwa Go, Portland.
Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Durham, De Muniz, Kistler, Walters, and Linder, Justices.**
LINDER, J.
This case requires us to examine the legal standard for the mental state of criminal negligence and to assess, when tested by that standard, whether the record in this case is sufficient to support defendant‘s conviction of criminally negligent homicide. Defendant, while driving a tractor-trailer truck, collided with the victim‘s catering truck from the rear. The collision pushed the victim‘s truck into the oncoming lane of traffic, where it was struck by a logging truck. The victim died at the scene. The state charged defendant with criminally negligent homicide.
We begin with the pertinent facts, some of which we discuss in additional detail later in our opinion. In describing the facts, we state them in the light most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007).
Defendant, a licensed commercial truck driver, was driving an empty tractor and trailer westbound on Highway 18 in Yamhill County. The victim, also traveling westbound, was driving a heavily loaded catering truck (a converted pickup) and had stopped in the westbound lane, ahead of
defendant, to make a left turn onto Christensen Road. In that area, Highway 18 consists of one lane in each direction. The Oregon Department of Transportation has designated the segment of Highway 18 where the collision occurred as a “safety corridor,” meaning it has a higher than normal crash rate, which has prompted officials to take special measures (e.g., enhanced fines and larger signage) to encourage more cautious and safe driving. The day was overcast, and the road was wet, but visibility was good.
As the catering truck approached the intersection with Christensen Road, it rolled to a slow, controlled stop. Two logging trucks approached from the opposite direction, traveling eastbound. The driver of the first logging truck, Gedenberg, saw the catering truck slow and come to a full stop at the intersection, with its left front turn signal blinking. Gedenberg, who was traveling about 45 miles per hour, passed the fully stopped catering truck as he went through the intersection. Throughout the drive that morning, Gedenberg had been conversing by CB radio with Olsen, the driver of the second logging truck. Gedenberg immediately warned Olsen about the catering truck, concerned that the driver would try to make the turn after Gedenberg passed him, in front of Olsen.
As Gedenberg drove past the catering truck, he saw defendant‘s truck ahead, traveling towards the still stopped catering truck. Gedenberg testified that he could see defendant for approximately five seconds before their trucks passed and that defendant, during that time, was looking down at his feet or lap and not at the road. As their trucks passed, Gedenberg saw defendant suddenly look up, surprised and startled to see the catering truck stopped ahead. Defendant, who had been traveling at 55 miles per hour (the speed limit for that section of the highway)
As defendant‘s truck skidded forward, the cab missed the catering truck, but the left-rear tires of the tractor and the left side of the trailer struck the rear corner of the catering truck, catapulting it into the path of Olsen‘s logging truck. The resulting collision killed the victim (the
driver of the catering truck). Defendant‘s truck, meanwhile, continued to skid forward another 60 feet before coming to a stop in a ditch on the far side of the intersection. Defendant‘s truck incurred minor damage from clipping the catering truck and going into the ditch.
Two witnesses who also had been driving westbound on Highway 18 on the date of the accident, Mr. and Mrs. Morrison, testified about their observations of defendant‘s driving for six or seven miles before the collision. Mrs. Morrison first noticed defendant at the intersection of Highway 18 and Highway 99, at which point defendant turned fast onto Highway 99 and “just flew across” the railroad tracks after the turn. Mrs. Morrison, who was driving, rarely comments on the driving of others, but she called defendant‘s driving to her husband‘s attention, who had been doing paperwork in the passenger‘s seat. As defendant and the Morrisons approached McMinnville on Highway 18, there were two westbound lanes of travel. The right-hand lane, in which defendant was traveling, eventually became a turn-only lane into McMinnville. The left-hand lane, in which the Morrisons were traveling, bypassed McMinnville and continued towards the coast. A sign marked the turn-only lane, but defendant did not merge into the left-hand lane as he passed that sign. Instead, he remained in that turn-only lane until the “last second.” Then, just as the turn-only lane split off into McMinnville, defendant abruptly cut into the left-hand lane without signaling and forced traffic in that lane to come to a near stop.
Once in the left-hand lane, defendant continued westbound. Ahead of him was a small school bus. Defendant began traveling “awfully close” to the school bus. Mrs. Morrison told her husband: “I hope there [are] no kids in that bus because he‘s right on them.” By that point, the Morrisons were paying attention to everything defendant did because his driving “stuck out like a sore thumb.” As the school bus exited into McMinnville, defendant‘s truck moved further ahead of the Morrisons when a car between the Morrisons’ car and defendant‘s truck turned off the highway. The Morrisons lost sight of defendant shortly before the collision and, as a result, did not see defendant‘s truck as it skidded toward the intersection and hit the catering truck.
Just after the accident, police interviewed defendant and obtained his statement. Defendant stated that he had been following the catering truck about three truck-lengths behind (i.e., about 180 feet) when the catering truck stopped “suddenly.” Defendant told police that the catering truck had no running lights, no brake lights, its left turn signal was not flashing, and there simply was no way for defendant to avoid the catering truck except to do what he did. According to defendant, what he did was “swing wide” and immediately steer his truck to the right and into the ditch to avoid hitting the catering truck.
Defendant‘s report was inconsistent with the physical evidence of the collision. One of the state‘s accident reconstruction experts, Trooper Pierce, concluded that defendant began braking about 382 feet before the collision. Pierce calculated that distance based on defendant‘s speed, the skid marks left by defendant‘s truck, defendant‘s likely reaction time, and the time it takes for air brakes on a tractor and trailer to engage. Given where the skid marks began (about 169 feet from the collision) and the delays involved before the skid marks would have started, Pierce concluded that it was physically impossible for defendant to have been only three truck lengths behind the catering truck when defendant hit his brakes.
The physical evidence further established that defendant did not “swing wide” to the right, contrary to his statement to police. The skid marks left by defendant‘s truck were long and straight, up to the area of the impact. Where they began, the right side of defendant‘s trailer was on the fog line and
stopped catering truck by attempting to steer to the right of it and that, throughout the skid, there had been no “steering input.”
Finally, both witnesses to the collision and expert testimony established that the catering truck‘s brake lights and running lights were on, and its left turn signal was flashing before the collision. In particular, Gedenberg, when he first noticed the catering truck as it pulled to a stop, saw the catering truck‘s front running lights on and its left turn signal flashing. After passing defendant‘s truck, Gedenberg looked in his rear view mirror, and specifically noticed that the catering truck‘s tail lights and brake lights were on before the collision. Gedenberg did not recall if the rear left turn signal was flashing. But the expert testimony established that the rear bulb, which served both as a brake light and a left turn light, was operative at the moment of the collision, suggesting that the catering truck‘s rear left signal light would have been flashing as well.
At trial, the essential dispute was whether the evidence supported a finding, beyond a reasonable doubt, that defendant had acted with the mental state of criminal negligence in causing the fatal collision. On defendant‘s motion for judgment of acquittal, the trial court concluded that the evidence created an issue of fact in that regard and denied defendant‘s motion. At the conclusion of the trial, the court, sitting as the finder of fact, found that defendant acted with the requisite criminally negligent state of mind and, therefore, found defendant guilty as charged. Rather than summarily announce its verdict, however, the trial court explained its reasoning in detail.
The trial court identified multiple factors that influenced its finding that defendant acted with criminal negligence. They included:
- Defendant was a professional commercial driver operating a heavy vehicle, and he was trained in the “increased risks that go along with operating a vehicle of that nature on a public highway.”
- Defendant‘s trailer was empty, making it difficult to stop, and defendant knew that fact.
- The highway was wet.
- The highway had only two lanes, which meant defendant was driving under circumstances where he knew that he had less room to maneuver.
- Defendant‘s unsafe driving before the collision, as witnessed by other drivers, showed that he had been driving beforehand with a mental state that displayed a lack of caution and prudence.
- The collision occurred in a designated safety corridor.
- Defendant had some familiarity with the route and was aware of both the greater risks of that area of highway and the need for driving with greater attention and care.
- Defendant was looking down before the collision and appeared shocked when he saw the catering truck, which was evidence that his lack of attention was protracted rather than just momentary.
- The catering truck had its turn signal on, was clearly visible to other drivers on the road, and did not stop abruptly.
- Defendant could have swerved to the right, where the shoulder was widened and paved, and likely could have avoided the collision entirely, but defendant did not do so.
The court found that defendant‘s failure to pay attention to the road and his driving was, given the totality of the circumstances, a “gross deviation” from the standard of care that a reasonable person would have observed in a similar situation and therefore constituted criminal negligence. See
On review, defendant first argues that the trial court erred in admitting the Morrisons’ testimony regarding his driving before the collision because that evidence was irrelevant and unfairly prejudicial. His principal argument, however, is that even if the Morrisons’ testimony was correctly admitted—the evidence that the state presented was insufficient to support a conclusion that he acted with the requisite mental state of criminal negligence. We begin
with defendant‘s argument that the Morrisons’ testimony was not relevant under
Defendant argues that the Morrisons’ observations of his driving approximately 10 to 15 minutes before the accident were not relevant because the specific conduct that the Morrisons described played no part in the collision. Defendant reasons that evidence of prior driving would be admissible only if the state could demonstrate that the specific conduct that the Morrisons had witnessed—which defendant characterizes as “driving fast while making a turn, making an unsignaled lane change, and closely following a school bus“—continued up to the time of the collision and contributed to the collision. The state responds that the Morrisons’ observations of defendant‘s driving occurred close in time to the collision and were evidence of his ongoing lack of awareness and care in his driving from that time until the collision.
The trial court concluded that the prior driving evidence was relevant, and we agree. In State v. Betts, 235 Or 127, 133, 384 P2d 198 (1963), the defendant was convicted of negligent homicide under former
in causing the later accident. The question was whether the prior conduct (speeding from a stop) logically permitted an inference of an ongoing state of mind.
The holding in Betts is consistent with the legal test for relevancy. The threshold for relevance is low. State v. Clegg, 332 Or 432, 441-42, 31 P3d 408 (2001). Relevant evidence under
Defendant also argues that the Morrisons’ testimony, even if relevant, was inadmissible because it was unfairly prejudicial under
that, well, maybe [defendant] did make a bad pass or engage in some poor driving earlier and, therefore, he must have engaged in the same at the time that led to this collision.” The trial court concluded, however, that the minimal risk of the jury considering the Morrisons’ testimony for that purpose did not outweigh the probative value of the evidence on the issue of defendant‘s state of mind. See State v. Lyons, 324 Or 256, 280, 924 P2d 802 (1996) (unfair prejudice under
We turn to whether the trial court erred in denying defendant‘s motion for a judgment of acquittal and subsequently finding defendant guilty of criminally negligent homicide. Because the parties disagree regarding the meaning of “criminal negligence” as defined in
“means that a person fails to be aware of a substantial and unjustifiable risk that the result [the death of another person] *** will occur ***. 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.”
On the spectrum of culpable mental states, criminal negligence falls between negligence and recklessness:
“Negligence is the least demanding; it requires only that the defendant should have known about a risk. Criminal negligence similarly considers whether the defendant should have known about the risk, but it also requires that
the risk be a ‘gross deviation from the standard of care that a reasonable person would observe in the situation.’
ORS 161.085(10) . Recklessness demands proof of a different and more culpable mental state. Although the nature of the risk is the same as for criminal negligence (‘a gross deviation from the standard of care that a reasonable person would observe‘), the standard is no longer what the defendant should have known; instead, a defendant must have been ‘aware of and consciously disregard[ed]’ that risk.ORS 161.085(9) .”
Morehouse v. Haynes, 350 Or 318, 332-33, 253 P3d 1068 (2011) (De Muniz, C. J., concurring) (emphases in original; footnotes omitted).
In Morehouse, this court addressed the differences between the mental states of negligence and recklessness in the context of a civil action arising out of an automobile collision.4
Defendant argues that the standard for criminal negligence established by
that risk.” Defendant notes that the Oregon legislature modeled
Defendant relies primarily on People v. Boutin, 75 NY2d 692, 696, 555 NE2d 253, 254 (NY 1990), in which the New York Court of Appeals held that criminally negligent homicide requires both a “failure to perceive a risk of death, [and] some serious blameworthiness in the conduct that caused it.” In that case, the defendant had been convicted of criminally negligent homicide after he failed to see the flashing lights of a police car and collided with the car at full speed, killing the officer and another person. Id. at 694-95, 555 NE2d 253-54. In reversing his conviction, the court held that “[t]he unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide.” Id. at 694, 555 NE2d at 253. Although the defendant likely had been negligent in failing to see the police car, he had not “engaged in any criminally culpable risk-creating conduct” and thus could not be convicted of criminally negligent homicide. Id. at 697, 555 NE2d at
255-56. Defendant urges us to follow Boutin and require that a defendant‘s conduct be “seriously blameworthy” in order to find criminal negligence.
Defendant argues that civil cases in Oregon decided under the “guest passenger” statute also support his position that a defendant‘s conduct must be “seriously blameworthy” to prove the mental state of criminal negligence. First, he asserts that the standards for “gross negligence” under the now-repealed guest passenger statute and “criminal
The state responds that defendant attempts to insert additional elements into the definitions of “criminal
negligence” and “criminally negligent homicide” by requiring the state to prove that defendant‘s conduct was seriously blameworthy or that defendant exhibited an attitude of indifference. In the state‘s view, the definition of “criminal negligence” in
The state also argues that the guest passenger cases decided before the enactment of the criminal negligence definition in 1971 do not support defendant‘s contention that the state must prove that defendant exhibited an “attitude of indifference to consequences.” The state argues that requiring an “attitude of indifference” assumes “some level of awareness“—as opposed to the statute‘s emphasis on a lack of awareness—and the “conscious disregard” of the potential consequences of risky behavior. The state asserts that defendant‘s proffered interpretation thus is inconsistent with
We agree with substantial parts of the state‘s argument regarding the definition of “criminal negligence.” Contrary to defendant‘s assertions,
not
To insert a requirement that the conduct must be “seriously blameworthy” or that the defendant be “indifferent to consequences” would, as the state argues, shift attention away from the elements identified in the definition of criminal negligence—the lack of awareness of risk and the deviation from the reasonable person standard of care. That said, not every deviation from the standard of care and not every failure to be aware of the risk involved constitutes criminal negligence. Only if the failure to be aware of the risk is a “gross” deviation from that of a reasonable person can a defendant be found to have acted with criminal negligence.
We return to the facts of this case to evaluate whether the evidence presented at trial was sufficient to support the trial court‘s finding, as trier of fact, that defendant acted with the mental state of criminal negligence. In making that evaluation, we of course must view the evidence in the light most favorable to the state, resolving all conflicts in
the state‘s favor and granting the state the benefit of all reasonable inferences that the evidence will support. State v. Cervantes, 319 Or 121, 125, 873 P2d 316 (1994).
In challenging the sufficiency of the evidence, the crux of defendant‘s argument is that, at best for the state, defendant was merely inattentive for a brief period of time in causing the accident. That brief inattention, defendant argues, amounted to mere negligence as a matter of law, rather than a “gross deviation” from the standard of care that a reasonable person would have observed under the circumstances, as criminal negligence requires. Defendant emphasizes that, at trial, the state‘s own experts testified that defendant‘s speed had not been a factor in the collision, that he had not followed the catering truck too closely, and that he was not under the influence of alcohol or drugs. Defendant asserts that there was no evidence that he could have prevented the accident—once he became aware of the victim‘s truck—had he taken different actions.
We agree that, if this case involved only a driver‘s brief inattention to his driving and nothing more, the evidence likely would fall short of establishing criminal negligence. In that respect, this court‘s decision in Morehouse is instructive. As we have described, Morehouse involved recklessness as defined by
he created (as criminal negligence requires), but he in fact knew of that risk (as recklessness requires). Id.
Likewise, this case involves more than mere inattention. Here, although defendant was not speeding unlawfully, he was traveling in a “safety corridor,” and thus a particularly hazardous section of road, at the maximum legally permissible speed. In addition, defendant‘s truck was unloaded, which reduced its stopping capability,7 and the road was wet, which reduced friction for braking. Cars qualify as inherently dangerous weapons. State v. Hill, 298 Or 270, 277, 692 P2d 100 (1984). Commercial semi-trucks, given their bulk and weight, are less maneuverable, less stoppable, and more deadly in a collision than an ordinary car. The record in this case bears that out. Car brakes engage instantly, slowing the car as soon as the driver pushes the brake pedal. Air brakes, like those on defendant‘s truck, do not engage and begin slowing the truck until a full two seconds after the driver first pushes the brake pedal. A professional commercial driver, of course, would know those steering and stopping limitations of his vehicle. Defendant would have known all of the above facts, or at least a jury could so find. Defendant‘s failure, as a licensed commercial truck driver, to watch the road ahead and the traffic on it for any significant period of time, even if momentary, while traveling in a safety corridor, under wet-road conditions, with an unloaded truck at the maximum legal speed, refutes defendant‘s position that this is a case of inattention, nothing more, and thus a case of mere negligence.
More fundamentally, however, we disagree with defendant that the only conclusion that the record supports is that defendant‘s inattention was merely brief or fleeting.
In that regard, the parties spar at some length over the significance of Gedenberg‘s testimony, who said that, as he passed the stopped catering truck and continued eastbound, he had been able to observe defendant for about five seconds as defendant approached from the opposite direction, throughout which time defendant had his eyes cast downward and was not watching the road ahead.8 The trial court, who was the trier of fact, found Gedenberg credible, but was unsure that his estimate of five seconds was accurate. In the trial court‘s view, however, whether Gedenberg could see defendant throughout the five seconds was “academic,” because the evidence as a whole persuaded the trial court that defendant in fact was inattentive for a protracted and significant period of time. As the trial court expressly described it, “if there was one phrase that might characterize this case in the court‘s view[, it is] gross inattention.”9
Because the record amply supports the trial court in that regard, we need not decide whether Gedenberg‘s testimony alone could establish how long defendant had failed to
(principally, the skid marks), the accident reconstruction expert determined that that “moment of perception” for defendant happened about 382 feet from the intersection. At the speed that Gedenberg‘s truck was traveling, it would have taken 5.78 seconds for him to travel from the stopped catering truck to the point where Gedenberg saw defendant first look up and notice the catering truck.10 The trier of fact could readily infer from defendant‘s shocked expression that defendant did not see the stopped catering truck throughout that time, and that the reason he did not see it was that he was not looking at the road ahead.
The Morrisons’ testimony was a further basis on which the trier of fact could find that defendant was distracted and inattentive for a protracted time. As earlier described, the Morrisons followed defendant on Highway 18 for six or seven miles, losing sight of him shortly before the collision. Throughout the time that the Morrisons were within sight of defendant, his driving was consistent with that of someone who was not paying attention to the road ahead of him. We have already described that evidence at some length and need not do so again here. It suffices to observe that, based on the evidence of defendant‘s earlier driving, a rational factfinder could conclude that defendant‘s inattention as he approached the catering truck was not just momentary or fleeting, but was instead the continuation of an ongoing distracted and inattentive mental state that characterized his driving for much or all of that morning.
Finally, in finding that defendant acted with criminal negligence, the trial court concluded that “the l[i]nch pin to the case” was the avoidability of the fatal collision. And it was avoidable, the trial court concluded, in two independent ways. First, defendant could have avoided the collision had he paid attention to the road ahead of him. Instead, however, he was distracted for a prolonged time, which was a particularly aggravated circumstance given defendant‘s training as a professional commercial driver, the highly dangerous vehicle he was driving, and the dangerous area of
road he was on, among other factors. Second, the trial court found, defendant failed to avoid the accident as he could have, by steering to the right of the stopped catering truck onto the adjacent shoulder of the road. As the photographs and diagram of the accident site show, the adjacent shoulder in that area, designated on the exhibit of the collision as a “paved shoulder/by-pass,” is much wider than along the highway generally. It is not an ordinary paved shoulder, but instead is nearly as wide as would be a second westbound lane of travel. The paved shoulder begins at just about the point where defendant first hit his brakes and continues to the end of the intersection. Because of the existence of the by-pass shoulder, ample pavement existed on the right side of the fog line for defendant to veer his truck to the right in a way that could have avoided the collision entirely.
There would have been a problem in doing that, however. As the exhibits in this case show, that shoulder narrowed again immediately after the intersection. At that point, a vehicle traveling at a fast rate of speed and unable to swerve back to the pavement would have found itself off hard pavement, and into the adjacent ditch area, where defendant in fact ended up when the impact of the collision caused his truck to swerve sharply to the right. Given his speed, and his delay in seeing the stopped catering truck, defendant could not veer to the right onto the paved by-pass shoulder and avoid the collision without risking driving off the pavement, possibly
That evidence caused the trial court to conclude that defendant acted with criminal negligence, not only because of his prolonged inattention before he noticed the catering truck, but because of his choice to not do more to avoid the collision:
“[A]s the photographs show, in my view, if some further steps had been taken, this collision still might [have] been avoided.
“I believe that [defendant] did take some steps to try to avoid the collision, and he did steer the vehicle more to the right.11”
“But *** it could have been steered over to the right sooner and into that lane.
“And I think, quite frankly, when the bottom line is read, [defendant] tried to thread the needle. He tried to go far enough to the right to avoid the collision and yet not so far to the right that he couldn‘t get back on the road.
“Had he gone a little further to the right, there is ample room at this point on this day and under those circumstances that this collision would *** not have occurred. He had the room to do it. He could have done it. He didn‘t do it. And that‘s criminally negligent homicide.”12
(Emphasis added.)
Thus, contrary to defendant‘s argument, there was evidence from which a rational factfinder could find—and this record establishes that the factfinder did in fact so find—that defendant could have taken actions to avoid the catering truck even after, due to his own inattentiveness, he noticed it too late in time to stop.
For those reasons, we conclude that the record in this case was sufficient to support the finding that defendant acted with criminal negligence. The trial court therefore correctly denied defendant‘s motion for judgment of acquittal.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Notes
“A person commits the crime of criminally negligent homicide when, with criminal negligence, the person causes the death of another person.”
“‘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.”
“All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible.”
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
As this court explained in State v. Hill, 298 Or 270, 279, 692 P2d 100 (1984), “[p]rior to the criminal code revision of 1971, gross negligence and recklessness comprised the same mental state for purposes of the automobile guest statute, as well as for criminal liability.” The 1971 revisions to the criminal code distinguished between criminal negligence (what previously had been called “gross negligence“) and recklessness. Id. “Recklessness” now requires a higher mental state than gross negligence did under the guest passenger statute because the defendant must be “aware of and consciously disregard[]” the applicable risk. Morehouse, 350 Or at 323 (quoting