165
Submitted February 11, affirmed March 18, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID WILLIAM FINCHER,
Defendant-Appellant.
Deschutes County Circuit Court
16CR57266; A167430
A. Michael Adler, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Hadlock, Judge pro tempore.
PER CURIAM
Affirmed.
166 State v. Fincher
PER CURIAM
Defendant appeals a judgment of conviction for
first-degree manslaughter, ORS 163.118; one count of DUII,
ORS 813.010; five counts of third-degree assault—DUII,
ORS 163.165(2)(b); and eight counts of recklessly endangering another person, ORS 163.195. Defendant drove drunk,
killing a two-year-old girl and injuring five other people.
Defendant challenges the denial of his motion to suppress
evidence of two blood draws—one medical and one taken
later at the direction of law enforcement—and the trial
court’s decision to admit crash-scene photographs of the
deceased child victim. We affirm.
Medical blood draw. Defendant first contends that
the trial court erred in denying his motion to suppress evidence of the blood draw taken for medical purposes at the
hospital after the collision. Defendant acknowledges that
our decision in State v. Miller,
(2017), would foreclose his
assignment of error had the Supreme Court not vacated that
decision due to the defendant’s death. He urges us to abandon the rationale in Miller and take a different approach
here. The state asks us to readopt our holding in Miller and
reject defendant’s contentions. We are not persuaded that
our decision in Miller was incorrect and, for that reason,
expressly readopt it here. Under Miller, the trial court’s
denial of defendant’s motion to suppress the evidence of the
medical blood draw is correct.
Law enforcement blood draw. Defendant next challenges the denial of his motion to suppress evidence of a second blood draw taken at the request of law enforcement. Any
error, however, is harmless. The evidence of the second blood
draw did not add anything to the evidence of the medical
blood draw and had little likelihood of affecting the verdict
in view of our determination that the trial court properly
admitted the medical blood draw.
Photographs of child victim. Defendant finally contends that the trial court abused its discretion under OEC
403 by concluding that the probative value of crash-scene
photographs of the child victim was not substantially outweighed by the risk of unfair prejudice posed by those
Cite as
(2017) (review of trial court’s balancing under
OEC 403 for abuse of discretion). We conclude that the trial
court’s exercise of discretion was within the range of permissible choices available to it. See State v. Gibson,
(2019) (“[T]he trial court also
would have acted within its discretion had it reached a contrary conclusion about its admissibility, but, on this record,
that was not the only permissible legal outcome available
to the court.”). In reaching this conclusion, we affirmatively
reject the state’s arguments that the court’s placement of
the photographs in an envelope so that the jury would have
the option of not looking at them is relevant to the question
of whether the court abused its discretion under OEC 403.
That inquiry necessarily must rest on the presumption that
a jury will consider all properly admitted evidence, whether
or not enclosed in an envelope, and we do not understand the
court to have relied on the envelope procedure in its OEC
403 analysis.
Affirmed.
