State v. Ruiz ( 2024 )

No. 460 July 3, 2024 565
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL DIONICUS RUIZ,
Defendant-Appellant.
Lincoln County Circuit Court
20CR60152, 21CR23070; A178789 (Control), A178790
Sheryl Bachart, Judge.
Submitted May 14, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
TOOKEY, P. J.
Affirmed.
566 State v. Ruiz
TOOKEY, P. J.
Defendant challenges his convictions for first-
degree manslaughter and third-degree assault and, alter-
natively, his sentences for third-degree assault. His six
assignments of error reduce to two questions: (1) whether
there was legally sufficient evidence in the record to allow
a factfinder to find that he acted with “extreme indiffer-
ence to the value of human life” and (2) whether the trial
court plainly erred when it allowed the state to rely on the
same evidence to prove both an element of a crime and a
sentencing-enhancement fact. For the following reasons, we
affirm.
Denial of Motions for a Judgment of Acquittal. In
his first five assignments of error, defendant challenges his
manslaughter and assault convictions, arguing that the trial
court erred in denying his motions for judgment of acquit-
tal on each, because there was insufficient evidence that he
acted “under circumstances manifesting extreme indiffer-
ence to the value of human life.” ORS 163.118(1)(a) (defin-
ing first-degree manslaughter); ORS 163.165(1)(c) (defining
third-degree assault). In reviewing the trial court’s rulings,
we view the evidence “in the light most favorable to the state
to determine whether a rational trier of fact, accepting rea-
sonable inferences and reasonable credibility choices, could
have found the essential element of the crime beyond a rea-
sonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d
431 (1994), cert den, 514 US 1005 (1995).
We have interpreted the phrase “under circum-
stances manifesting extreme indifference to the value of
human life” to mean “unconcern in a very high degree,
exceeding the ordinary, that an act might cause the death
of a human being.” State v. Downing, 276 Or App 68, 82, 366
P3d 1171 (2016). The phrase does not “create an additional
culpable mental state.” State v. Boone, 294 Or 630, 634,
661 P2d 917 (1983). Rather, it describes a level of reckless-
ness “that is characterized by a willingness to commit an
‘extremely dangerous act’ and an indifference as to whether
that act could cause the death of another human being.”
Downing, 276 Or App at 83 (quoting Boone, 294 Or at 638)).
Cite as 333 Or App 565 (2024) 567
Here, viewed in the light most favorable to the state,
the evidence allowed the jury to find (1) that defendant stayed
up all night drinking beer before driving several people from
Corvallis to Newport; (2) that defendant drank alcohol while
driving to Newport; (3) that defendant continued drinking
alcohol once he arrived at Newport, including almost half a
pint of whiskey; (4) that defendant then drove a truck full of
people back to Corvallis while he had a blood alcohol content
of approximately 0.08 to 0.16 percent; (5) that defendant was
driving about 90 miles an hour in a 55-mile-an-hour zone;
and (6) that defendant crossed over the centerline and struck
an oncoming vehicle. Further, there was evidence that defen-
dant had been arrested on three prior occasions for driving
while under the influence of intoxicants and had attended a
recent employee meeting at work about the problem of drink-
ing on the job. In light of that evidence, we conclude that a
reasonable factfinder could find that defendant demonstrated
a willingness to commit an extremely dangerous act and an
indifference as to whether that act could cause the death of
another human being. Thus, we conclude that the trial court
did not err in rejecting defendant’s motion for a judgment of
acquittal on the charged offenses.
Sentencing Enhancement Facts. In his sixth assign-
ment of error, defendant argues that the trial court plainly
erred when it allowed the state to use the same evidence to
prove an element of third-degree assault and a sentencing-
enhancement fact, which was used to justify departure
sentences for the assault convictions. Specifically, the state
used evidence, that defendant had been arrested for DUII
three times in the past and had his license suspended twice
for failing breath tests, to prove that defendant acted with
“extreme indifference to the value of human life” (an element
of third-degree assault) and to prove that defendant “demon-
strated disregard for laws” (a sentencing-enhancement fact).
He argues that using the same evidence for both purposes
violated OAR 213-008-0002(2), which provides, in part:
“(2) If a factual aspect of a crime is a statutory element
of the crime * * *, that aspect of the current crime of convic-
tion may be used as an aggravating or mitigating factor
only if the criminal conduct constituting that aspect of the
568 State v. Ruiz
current crime of conviction is significantly different from
the usual criminal conduct captured by the aspect of the
crime.”
(Emphasis added.)
The state argues that any error is not plain, because
it is not obvious and beyond reasonable dispute that the
use of evidence to prove both an element and a sentencing-
enhancement fact is prohibited by that rule. See State v.
Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (“For an
error to be plain error, it must be * * * obvious and not rea-
sonably in dispute[.]”).
We agree with the state. By its plain text and with
limited exception, OAR 213-008-0002(2) prohibits using
“factual aspects” that serve as an “element” of a crime to
justify a departure sentence for that crime. Thus, gener-
ally, if a crime has as an element the use of a dangerous
weapon, then the use of a dangerous weapon cannot be used
as a sentencing-enhancement fact. See State v. Fox, 262
Or App 473, 485, 324 P3d 608, rev den, 356 Or 163 (2014)
(holding that “violation of public trust” could not serve as
a sentencing-enhancement fact because an element of the
crime was the threat to abuse the defendant’s position as
a public servant). But it is not obvious that the use of the
same evidence to prove both an element and a sentencing-
enhancement fact is prohibited by the rule. In other words,
it is not obvious that using prior DUII arrests as circum-
stantial evidence of defendant’s willingness commit an
extremely dangerous act without regard to the risk of death
it posed to others means that the state cannot also use those
arrests to prove a different fact for purposes of imposing
a departure sentence—i.e., that defendant displayed a dis-
regard for the law. Accordingly, the requirements for plain
error are not satisfied. We therefore reject defendant’s sixth
assignment of error.
Affirmed.