State v. Brinager

RIGGS, J.

Defendant appeals his conviction on two counts of criminally negligent homicide. ORS 163.145. He assigns as errors the court’s admission of evidence regarding 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 contends 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 the 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 some time and distance before the accident continued up to at least shortly before the accident.” Cox v. Jacks, 268 Or 180, 184, 519 P2d 1041 (1974). Typically, either multiple observations by different observers or combinations of types of evidence, such as speeding and intoxication, have established the necessary pattern. See, e.g., Shoopman v. Long, 252 Or 341, 449 P2d 439 (1969); Carter v. Moberly, 263 Or 193, 501 P2d 1276 (1972); see also Annot., 46 ALR2d 9.

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 time of the collision, five minutes later, was also inattentive and erratic. The evidence is relevant and therefore admissible under OEC 402.

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 aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

The court, relying 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, 37 Or App 319, 587 P2d 483 (1978). Without the Mansers’ testimony, the evidence would not have supported a finding of criminal negligence, because there would have been no evidence to indicate that defendant should have been aware of a problem with his driving. Given our holding on the admissibility of that evidence, however, we also hold that the trial court properly denied defendant’s motion for acquittal. A reasonable trier of fact could have found beyond a reasonable doubt from the evidence that defendant should have been aware that his driving posed a substantial and unjustifiable risk and that his failure to be aware represented a “gross deviation from the standard of care that a reasonable person would observe in the situation.”¹

Affirmed.

1 We need not discuss the remaining assignments of error.