State v. Alexander

359 P.3d 516, 273 Or. App. 659, 2015 Ore. App. LEXIS 1111
CourtCourt of Appeals of Oregon
DecidedSeptember 16, 2015
Docket10CR0748; A151976
StatusPublished
Cited by4 cases

This text of 359 P.3d 516 (State v. Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alexander, 359 P.3d 516, 273 Or. App. 659, 2015 Ore. App. LEXIS 1111 (Or. Ct. App. 2015).

Opinion

GARRETT, J.

Defendant was convicted of two counts of third-degree assault, ORS 163.165, two counts of recklessly endangering another person, ORS 163.195, and one count each of driving under the influence of intoxicants, ORS 813.010, reckless driving, ORS 811.140, and criminal driving while suspended or revoked, ORS 811.182. On appeal, defendant assigns error to the trial court’s denial of his motion for a judgment of acquittal on the two counts of third-degree assault, arguing that the state failed to produce sufficient evidence to support a finding that defendant’s conduct manifested “extreme indifference to the value of human life.” For the reasons that follow, we affirm.1

In reviewing a trial court’s denial of a motion for a judgment of acquittal, we state the facts in the light most favorable to the state. State v. Goddard, 178 Or App 538, 540, 37 P3d 1046 (2002). Defendant and a friend, Rush, met up with two other men, Magley and Boatman, at Magley’s house. The group made plans to go to a tavern. Before leaving, defendant consumed an alcoholic energy drink. Defendant then drove the group to the tavern in his car. The men drank there, and moved on to another tavern, where they continued drinking. At some point, the bartender asked them to leave. Defendant, Rush, and Magley discussed who was going to drive home. The group also discussed taking a taxi. At trial, Rush testified that he asked defendant whether he was “okay to drive” and that Rush volunteered to drive if defendant was not. Defendant told Rush, “no, I’m good, I’m okay.” Rush and Magley joined defendant in his car; Boatman got a ride with others.

At first, defendant drove within the speed limit. Later, defendant accelerated and “started turning up the music a little bit.” Magley testified that Rush asked defendant to slow down and turn down the radio “two or three times,” but, instead, defendant accelerated further. Magley [661]*661testified that the car reached an approximate speed of 80 miles per hour. As the car approached a curve, it made contact with some gravel on the shoulder; defendant lost control, and the car became airborne and crashed upside down into a ditch. Magley emerged first and pulled Rush from the car. The two men then attended to defendant, who was injured and still inside the car, while they waited for help to arrive.

Emergency responders removed defendant from the car and strapped him to a backboard. Deputy Sheriff Gasperson testified that defendant was “combative.” Another deputy, Freeman, testified that emergency responders had difficulty restraining defendant because he was being “belligerent.” Freeman also recalled that, at the hospital, defendant “wasn’t being very cooperative” and was “rude.” Defendant’s blood-alcohol content was measured at 0.219 approximately three hours after the crash.

Defendant testified that he drank heavily that night because he believed that Rush would be driving the group home. Defendant explained that he had been knocked unconscious in the crash and that he woke up “absolutely terrified.” Defendant also testified that, before the accident, he had taken a class “related to the hazards of drinking and driving.”

A witness, Carver, whose home is across the street from the crash site, was outside his home when the crash occurred. He testified that he heard a car coming that “started speeding up” and “sounded like the guy pushed [the gas pedal] clear to the floor.” Carver also testified that most drivers take the curve by his house at approximately 45 miles per hour and that he recalled thinking that defendant’s car, which sped by in “a flash [,]” was “not gonna make it” because it “[was] going way too fast.”

At the conclusion of the state’s case, defendant moved for a judgment of acquittal on the two counts of third-degree assault, arguing that the evidence was insufficient to prove anything more than that he drove recklessly while intoxicated. Defendant further argued that merely driving at an excessive speed does not satisfy the “extreme indifference” element of the third-degree assault statute. The trial [662]*662court denied defendant’s motion. A jury convicted defendant on all charges.

On appeal, defendant reprises his argument to the trial court. We review the denial of a motion for a judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the state, a jury could have found that the essential elements of the offense were proved beyond a reasonable doubt. State v. McAtee, 245 Or App 233, 236, 261 P3d 1284 (2011).

Here, the disputed element of third-degree assault is the existence of “circumstances manifesting extreme indifference to the value of human life.”2 The statute does not define “extreme indifference,” but our “case law has made clear that it refers to ‘a state of mind where an individual cares little about the risk of death of a human being.’” State v. Forrester, 203 Or App 151, 156, 125 P3d 47 (2005) (quoting State v. Cook, 163 Or App 578, 583, 989 P2d 474 (1999)). Thus, “the jury must find not only recklessness but also conduct which in addition to recklessness, manifests extreme indifference to the value of human life on the part of this defendant, as may be inferred from his conduct at the time of the event.” State v. Boone, 294 Or 630, 634, 661 P2d 917 (1983).

Several cases have addressed the “extreme indifference” element in the context of driving while intoxicated, and support the proposition that a jury may find extreme indifference based on a defendant’s intoxication combined with other evidence of his or her conduct. In Boone, the Supreme Court held that the evidence supported a finding of extreme indifference to the value of human life where the defendant drove his vehicle dangerously by tailgating other cars, swerving, and driving over the center line of a highway, all while intoxicated and having a suspended driver’s license. 294 Or at 632-33, 639. The defendant’s blood-alcohol level was .24 percent two hours after the accident, he was “belligerent at the scene of the accident,” he threatened to [663]*663hit the passenger of the first car he struck, and, due to his intoxication, he was “not only unable to assist the victim, but at one point interfered with the assistance” of that victim by others. Id.; see also Forrester, 203 Or App at 153-56 (evidence was sufficient to establish extreme indifference where the defendant was intoxicated, drove erratically, “repeatedly slammed on his brakes as he reached controlled intersections and then rapidly accelerated away,” drove through a red light without slowing down and struck another vehicle, and showed no “concern or remorse for the consequences of his conduct”); State v. Belcher,

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Bluebook (online)
359 P.3d 516, 273 Or. App. 659, 2015 Ore. App. LEXIS 1111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alexander-orctapp-2015.