State v. Campbell ( 2023 )

404 December 6, 2023 No. 638
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEFFREY RAY CAMPBELL,
Defendant-Appellant.
Josephine County Circuit Court
20CR44303; A176242
Matthew G. Galli, Judge.
Argued and submitted October 27, 2023.
Sarah De La Cruz, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Brad Mullen, Certified Law Student, argued the cause
for respondent. On the brief were Jon Zunkel-deCoursey,
Assistant Attorney General, and Connor Barnes.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 329 Or App 404 (2023) 405
TOOKEY, P. J.
Defendant appeals a judgment of conviction for one
count of reckless driving, ORS 811.140; one count of second-
degree criminal mischief, ORS 164.354; and one count of
failure to perform the duties of a driver when property is
damaged, ORS 811.700. On appeal, defendant challenges
only his conviction for failure to perform the duties of a
driver.
In his first assignment of error, defendant argues
that the trial court erred in excluding evidence of defen-
dant’s discussion with firefighters at the scene of the acci-
dent. In his second assignment of error, defendant argues
that the trial court plainly erred when it failed to acquit
defendant, sua sponte, of the crime of failure to perform the
duties of a driver when property is damaged. In his third
assignment of error, defendant argues that the trial court
plainly erred by failing “to ensure that the jury agreed on
the factual occurrence that constituted the crime of failure
to perform the duties of a driver when property is damaged.”
For the reasons below, we affirm.
Defendant’s First Assignment of Error. In a pre-trial
in limine hearing, the state moved to exclude a portion of the
recording of defendant’s conversation with Officer Harris,
who spoke to defendant at defendant’s home a few hours
after the accident. In the portion of the recording in ques-
tion, defendant told Harris that a wildlands firefighter had
told defendant that he could leave the scene of the accident
to “go get a tow truck.” The state argued that defendant’s
statement to Harris was not relevant. Defendant opposed
the motion in limine, arguing that the exchange with Harris
about the firefighter was relevant to defendant’s state of
mind when defendant left the scene of the accident, and thus
relevant to whether defendant failed to perform the duties
of a driver. The trial court agreed with the state that the
exchange was not relevant, and excluded that portion of the
recording. On appeal, in his first assignment of error, defen-
dant challenges that ruling.
“We review a trial court’s determination of whether
evidence is relevant for errors of law.” State v. Curtiss, 193
406 State v. Campbell
Or App 348, 351, 89 P3d 1262, rev den, 337 Or 282, 96 P3d
347 (2004) (internal citations omitted). Under OEC 402, “[a]
ll relevant evidence is admissible[;] * * * [e]vidence which is
not relevant is not admissible.” OEC 401 defines “relevant
evidence” as “evidence having any tendency to make the
existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it
would be without the evidence.”
ORS 811.700(1) sets forth the duties of a driver of
a vehicle when that driver “knows or has reason to believe
that the driver’s vehicle was involved in a collision * * * that
results in damage to property[.]” As relevant here, in the
event that the driver’s vehicle causes property damage, the
driver must “[t]ake reasonable steps to notify the owner or
person in charge of the property of the collision and of [vari-
ous other pieces of important identifying information].” ORS
811.700(1)(d)(A).1 “It is left to the finder of fact to determine
* * * whether the steps taken to provide the information to
the owner or person in charge met [the reasonable steps]
standard.” State v. Porter, 95 Or App 373, 374, 768 P2d 940,
rev den, 308 Or 33 (1989).
On appeal, defendant argues that the excluded evi-
dence was relevant on the issue of whether “defendant knew
that he failed to take ‘reasonable steps’ to notify the owners
of the fence and power box of the damage and the other facts
listed in ORS 811.700.” The state responds that “[t]here is
no rational relationship between what permission defendant
1
ORS 811.700(1) provides, in relevant part:
“(1) A driver of a vehicle who knows or has reason to believe that the driv-
er’s vehicle was involved in a collision commits the offense of failure to per-
form the duties of a driver when property is damaged if the driver’s vehicle is
involved in a collision that results in damage to property and the driver does
not perform duties required under any of the following:
“* * * * *
“(d) If the driver’s vehicle has been involved in a collision resulting only in
damage to fixtures or property legally upon or adjacent to a highway, the
driver shall perform all of the following duties:
“(A) Take reasonable steps to notify the owner or person in charge of the prop-
erty of the collision and of the driver’s name and address, the vehicle owner’s
name and address and, if the driver’s vehicle is a motor vehicle, the registration
number of the motor vehicle, the name of the insurance carrier covering the
motor vehicle, the insurance policy number of the insurance policy insuring the
motor vehicle and the phone number of the insurance carrier.”
Nonprecedential Memo Op: 329 Or App 404 (2023) 407
may have had to leave and return with a tow truck and the
steps defendant knowingly did or did not take to notify the
property owners of the damage from the collision.”
We agree with the state. Whether defendant asked
firefighters if he could leave the scene of the accident to get a
tow truck does not make it any more or less likely that defen-
dant knowingly took reasonable steps to notify owners of
the damaged property as required under ORS 811.700(1)(d).
That is, defendant obtaining permission to leave the scene
to get a tow truck is an action unrelated to seeking out, or
providing information to, the owners of the fence or the own-
ers of the power box. Defendant’s reasons for leaving the
scene did not change whether defendant knew that he took
reasonable steps to notify the property owners. Hearing
about defendant’s conversation with firefighters would not
have helped the jury decide that question. Thus, the trial
court did not err in determining that the evidence was not
relevant and excluding it. We reject defendant’s first assign-
ment of error.
Defendant’s Second Assignment of Error. In his sec-
ond assignment of error, defendant argues that the trial
court plainly erred in failing to acquit defendant, because
the “evidence was insufficient to prove that defendant failed
to take reasonable steps to notify the owner of the damaged
fence and power box.” The state responds that “the trial
court did not err—plainly or otherwise—by not acquitting
defendant.”
Because defendant did not preserve this claim of
error, we must consider first whether the error was plain.
ORAP 5.45(1); see State v. Brown, 310 Or 347, 355, 800 P2d
259 (1990) (“[T]he appellate court may consider errors of law
apparent on the face of the record notwithstanding a defect
in preservation at trial or presentation on appeal.” (internal
quotation omitted)). An error is plain error if “(1) the error is
one of law; (2) the error is apparent, in that the legal point is
obvious, not reasonably in dispute; and (3) the error appears
on the face of the record, such that we need not go outside
the record or choose between competing inferences to find it,
and the fact that comprise the error are irrefutable.” State
v. Reynolds, 250 Or App 516, 519-20, 280 P3d 1046, rev den,
408 State v. Campbell
352 Or 666 (2012) (internal quotations omitted). In this case,
“[b]ecause the sufficiency of the evidence is a question of law,
and we need not go outside the record or choose between
competing inferences to resolve the issue in this case, the
question reduces to whether the legal point is obvious.” State
v. Robertson, 289 Or App 703, 708, 412 P3d 223, rev den,
363 Or 481 (2018) (internal quotations omitted) (narrow-
ing analysis of defendant’s unpreserved argument that the
state failed to prove defendant’s guilt beyond a reasonable
doubt, and that the trial court erred in failing to acquit him
sua sponte).
Considering the record from the trial court in
the light most favorable to the state, we conclude that the
state presented sufficient evidence for a rational factfinder
to determine beyond a reasonable doubt that defendant
(1) knew he damaged property when he crashed his car and
(2) knowingly failed to take reasonable steps to notify the
owners of said property. See State v. Taylor, 323 Or App
422, 425, 523 P3d 696 (2022) (setting forth our standard of
review for motions for judgment of acquittal); ORS 811.700
(describing offense of failure to perform the duties of a driver
when property is damaged). Such evidence included defen-
dant’s own testimony at trial that he was aware of the dam-
age, and that he did not contact the property owners. The
evidence also included the fence owner’s statement and the
Pacific Power representative’s testimony, which confirm that
defendant never contacted either party about the damage to
their respective property.
We conclude that that evidence is sufficient to con-
vince a rational factfinder of defendant’s guilt under ORS
811.700(1)(d), beyond a reasonable doubt. Therefore, the
legal point underlying defendant’s second assignment of
error—that the state’s evidence was insufficient to prove
that defendant violated ORS 811.700(1)(d)—is not obvious.
Thus, the trial court did not plainly err in failing to acquit
defendant, sua sponte, on that basis. We reject defendant’s
second assignment of error.
Defendant’s Third Assignment of Error. In defen-
dant’s third assignment of error, he asserts that the trial
court plainly erred when it “failed to ensure that the jury
Nonprecedential Memo Op: 329 Or App 404 (2023) 409
agreed on the factual occurrence that constituted the crime
of failure to perform the duties of a driver when property is
damaged,” either by requiring the state to elect a particu-
lar occurrence of the crime or by giving a jury concurrence
instruction. We disagree.
As defendant’s third assignment of error is unpre-
served, we examine it for plain error. Defendant was charged
with a single violation of ORS 811.700(1)(d). That single vio-
lation was the result of a single occurrence—defendant’s
vehicle’s collision with a fence and a power box. That sin-
gle collision caused damage to both pieces of property, and
defendant subsequently took no steps to identify, or to notify,
the owner of either the fence or power box. It is not obvious
that the trial court erred by not requiring the state to elect
a particular occurrence of the crime or by not giving a jury
concurrence instruction. The court therefore did not plainly
err, and we reject defendant’s third assignment of error.
Affirmed.