644
Submitted December 30, 2019, affirmed July 29, petition for review denied
December 10, 2020 (367 Or 290)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH DANIEL BROWN,
Defendant-Appellant.
Deschutes County Circuit Court
16CR35327; A168297
471 P3d 811
Defendant appeals a judgment of conviction for driving under the influence
of intoxicants (DUII) and reckless driving. At trial, evidence was presented that
defendant was driving between 15 and 18 miles per hour (MPH) in a 25 MPH
zone when he took a sharp corner. In doing so, defendant turned into the lane
for oncoming traffic and grazed or nearly hit the curb before correcting course.
The arresting officer administered a breath test, which indicated a blood alcohol
content of .19 percent. However, there was no evidence of oncoming vehicle or
pedestrian traffic. Defendant moved for a judgment of acquittal on the reckless
driving charge, which the court denied. On appeal, defendant assigns error to
that denial, arguing that no reasonable trier of fact could find that he drove “in
a manner that endangers the safety of persons or property” because the only
evidence to support that contention is that he was driving 8 to 10 MPH under the
speed limit and that he took a sharp corner. Alternatively, defendant argues that
the crime of reckless driving can only be proven if there was evidence that his car
hit or came close to hitting an identified person or object. Held: The trial court
did not err in denying defendant’s motion for a judgment of acquittal, because to
survive that motion it is sufficient that a reasonable trier of fact can infer that
there was a substantial risk of endangering persons or property. Here, in an area
frequented by people, defendant nearly hit the curb on the wrong side of the intersection, drove a substantial distance in that lane, and was highly intoxicated.
Affirmed.
Wells B. Ashby, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Aoyagi, Judge,
and Kistler, Senior Judge.
Cite as 305 Or App 644 (2020) 645
KISTLER, S. J.
Affirmed.
Aoyagi, J., dissenting.
646 State v. Brown
KISTLER, S. J.
Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII) and reckless driving. He argues that the trial court erred in denying
his motion for a judgment of acquittal on the reckless driving charge. We affirm.
On Friday, June 10, 2016, at approximately
10:20 p.m., an officer noticed defendant driving 15 to 18 miles
per hour on Glacier Avenue—a main, one-way street that
runs through Redmond, Oregon. A map of the area introduced as state’s Exhibit 1 shows that Glacier and Highland
Avenues form a couplet that serves as Highway 126 through
Redmond. The map also shows that the area between Glacier
and Highland Avenues where the officer first noticed defendant includes a mix of restaurants and businesses.1 That
area is “pretty close to downtown” and has a posted speed
limit of 25 miles per hour, a speed limit that results, in part,
from the fact that “there’s a lot of activity in the area like
businesses and pedestrians.”
The officer followed defendant for approximately
two blocks on Glacier Avenue before defendant turned left
onto 12th Street, a smaller, two-way street, that connects
Glacier and Highland Avenues. When defendant turned
onto 12th Street, he “took a sharp corner[,] which basically
caused him to [turn] into [the lane for oncoming traffic] and
[he] had to travel through [that] lane to get to his, the correct lane.”2
On cross-examination, the officer illustrated defendant’s route by drawing a line on a photograph of the intersection of Glacier Avenue and 12th Street, which was admitted as defendant’s Exhibit 101. The line that the officer drew
shows that, when defendant turned onto 12th Street, his
car grazed or came close to hitting the curb on the left (or
wrong) side of the intersection, that he continued by driving
1
The map was admitted as state’s Exhibit 1 and includes the names of some
of the businesses in the area where defendant was driving. The restaurants in
the area include Round Table Pizza, La Posada Mexican Grill, Papa Murphy’s
Take ‘N’ Bake Pizza, and Loco Place, which is described on the map as “Crazy
Snacks Crazy Good Food.”
2
No line demarcates the two lanes on 12th Street.
Cite as 305 Or App 644 (2020) 647
in the left lane (the lane for oncoming traffic) to and through
the crosswalk, and that he drove substantially beyond the
crosswalk in the wrong lane before correcting course and
moving into the right lane on 12th Street.3 There is no evidence that defendant’s driving resulted in an actual injury
to person or property.
Having corrected course, defendant drove briefly on
12th Street toward Highland Avenue before turning into a
convenience store parking lot, driving through that parking
lot, and parking his car in front of a closed real estate office.
At no point did the officer signal defendant to stop. Rather,
the officer followed defendant’s car into the real estate parking lot, parked near defendant’s car, and stepped out of his
car. As the officer approached defendant’s car, he noticed
that defendant was “using the frame of the door to pull himself out of the vehicle.” Once defendant got out of the car, the
officer observed that defendant had “poor balance,” his eyes
were “bloodshot and watery,” and an odor of alcoholic beverage was on his breath.
The officer administered three field sobriety tests,
all of which indicated that defendant was under the influence of intoxicants. Afterwards, defendant acknowledged
that he had drunk eight beers since five o’clock that evening.
The officer placed defendant under arrest and took him to
the police station where he administered a breath test. The
breath test disclosed that defendant had a blood alcohol content (BAC) of .19 percent or almost two-and-a-half times the
legal limit of .08 percent. The state also submitted documentary evidence on the reckless driving charge. That evidence
showed that defendant had participated in a diversion program in 2007 for what defendant had described as “drunk
driving” and that, after completing diversion, defendant
3
Defendant’s Exhibit 101 shows that the crosswalk on 12th Street is not
flush with Glacier Avenue but is set back several feet from it. The exhibit shows
that defendant drove in the left or wrong lane on 12th Street from the intersection to the crosswalk (a distance of approximately the one-half the width of the
crosswalk), that he continued through the crosswalk in the wrong lane, and that
he continued farther in the wrong lane for a distance roughly equal to the width
of the crosswalk before correcting course and moving into the right or correct
lane. The officer explained that the line he drew estimated the path of defendant’s turn and added, after marking the exhibit, “[t]here, something like that
not to scale.”
648 State v. Brown
had been convicted of DUII in 2013 before the current DUII
charge in 2016.4
At the close of the evidence on the reckless driving
charge, defendant moved for a judgment of acquittal on that
charge. He acknowledged that there may be “some evidence
of a reckless mental state.” He contended, however, that
“in no way has the State put on evidence as to the other
portion of that statute, a manner of driving that endangers
the safety of persons or property. There’s no evidence of any
kind of oncoming traffic in any way, no evidence of any kind
of pedestrians.”
The state responded that defendant was driving in a busy
part of downtown Redmond and that, under established
caselaw, the state did not have to prove an actual hit or even
a near miss to show that the manner of defendant’s driving
endangered the safety of persons or property. After considering the parties’ arguments, the trial court denied defendant’s motion for a judgment of acquittal on the reckless
driving charge and later found him guilty of that charge.5
On appeal, defendant assigns error to the trial
court’s ruling denying his motion for a judgment of acquittal
on the reckless driving charge. The reckless driving statute
provides: “A person commits the offense of reckless driving
if the person recklessly drives a vehicle upon a highway …
in a manner that endangers the safety of persons or property.” ORS 811.140(1). That statute requires proof of both
a mental state (recklessly) and an act (driving on a highway “in a manner that endangers the safety of persons or
property”). See ORS 811.140(2) (providing that ORS 161.085
defines the mental state “recklessly,” as that term is used in
ORS 811.140(1)).6
4
The current DUII charge was tried to a jury while the reckless driving
charge was tried to the court. In deciding whether defendant was guilty of the
current 2016 DUII charge, the jury did not hear evidence of defendant’s 2007
diversion or his 2013 DUII conviction. In deciding whether defendant was guilty
of reckless driving, the trial court considered both the evidence that the jury
had heard on the current DUII charge and the documentary evidence regarding
defendant’s 2007 diversion and 2013 DUII conviction.
5
The jury separately convicted defendant of DUII. Defendant raises no challenge to that conviction.
6
ORS 161.085(9) provides: “ ‘Recklessly,’ when used with respect to a result
or circumstance described by a statute defining an offense, means that a person
Cite as 305 Or App 644 (2020) 649
On appeal, defendant acknowledges, as he did
below, that there was evidence from which a reasonable
trier of fact could find that he acted “recklessly.” He argues,
however, that no reasonable trier of fact could find that he
drove “in a manner that endangers the safety of persons
or property.” As we understand defendant’s primary argument, it is factual. He starts from the proposition that the
fact that he drove while intoxicated is not sufficient, standing alone, to establish that he drove in an unsafe manner.
He then argues that the only deficiencies in his driving
that the officer noticed—driving slowly and “taking a sharp
corner”—are not sufficient, as a matter of law, to prove that
he was driving in a manner that endangered the safety of
persons or property. He also suggests alternatively that the
state could prove the crime of reckless driving only if there
was evidence that his car hit or came close to hitting an
identified person or object.
We begin with defendant’s primary argument. We
agree with defendant that the fact that he was driving
while intoxicated does not automatically establish that he
was guilty of reckless driving. See State v. Luke, 104 Or App
541, 546,
802 P2d 672 (1990) (holding that a jury instruction erroneously permitted the jury to conclude that a finding of guilt on a DUII charge automatically established the
defendant’s guilt on a related charge of reckless driving).
Something more is required. See State v. Smith,
218 Or App
568, 572-73,
180 P3d 148 (2008) (holding that the level of
the defendant’s intoxication and the circumstances under
which she drove were sufficient to meet the state’s burden of
production). Similarly, the fact that a driver violates a traffic law does not necessarily mean that the driver is guilty of
reckless driving. Morehouse v. Haynes,
350 Or 318, 330,
253
P3d 1068 (2011).7
is aware of and consciously disregards a substantial and unjustifiable risk that
the result will occur or that the circumstance exists.”
7
As the court explained in Morehouse, to find a defendant guilty of reckless
driving, a trier of fact must conclude not only that the defendant violated the
standard of care ordinarily applicable to drivers. It also must find that the risk of
harm posed by the defendant’s conduct was “substantial and unjustified” and that
the defendant was “aware of and consciously disregarded” that risk of harm. 350
Or at 331. It follows that only a subset of traffic violations will constitute reckless
driving. See
id. at 332-35 (De Muniz, C. J., concurring) (so noting).
650 State v. Brown
We disagree with defendant, however, that the only
deficiencies in his driving were driving slowly and simply
“taking a sharp corner.” Rather, the trier of fact reasonably
could find that, when defendant turned onto 12th Street, he
either grazed or barely missed hitting the curb on the left (or
wrong side) of the intersection, he turned directly into the
lane for oncoming traffic on 12th Street, and he continued
in that lane to, through, and beyond the crosswalk. Driving
a substantial distance in the lane for oncoming traffic presents a far greater danger to persons and property than
merely taking a “sharp corner,” or so the trial court reasonably could find.
Moreover, a trier of fact reasonably could infer that
the level of defendant’s intoxication (almost two-and-half
times the legal limit) exacerbated the dangerous manner in
which he drove. That is, a trier of fact reasonably could infer
that defendant’s heightened level of intoxication caused him
to be unaware that he was turning from a one-way street
onto a two-way street with the result that he drove a substantial distance in the lane for oncoming traffic. Put differently, a trier of fact reasonably could find that defendant
was no clear-eyed driver who could assess the risks posed
by his conduct. Additionally, a trier of fact reasonably could
infer that defendant’s observed lack of coordination resulting from his intoxication impaired his ability to correct his
error once he became aware of it, as well as his ability to
avoid harming others who might find themselves in his
path. Put simply, a reasonable trier of fact could find that
the manner in which defendant drove endangered the safety
of persons or property.
Our decision in Smith supports that conclusion. In
Smith, there was no direct evidence of the manner in which
the defendant drove. 218 Or App at 570-71. No one saw the
defendant driving in Smith; they found her standing beside
her car parked on “the Alberta Street on-ramp to Interstate
5 North in Portland, during rush-hour traffic.”
Id. at 570.
Her parked car was “partially obstructing traffic” and she
was standing outside her car in a way that impeded traffic.
Id. She also was clearly intoxicated.
Id. When she returned
to her car at the officer’s request, she slumped into her
seat, responded to the officer’s questions in a semi-coherent
Cite as
305 Or App 644 (2020) 651
fashion, and later fell asleep when the officer briefly walked
away.
Id. A breath test revealed that she had a BAC of .36
percent. Id. at 571.
The defendant in Smith argued, as defendant does
here, that there was no evidence from which a trier of fact
reasonably could infer that she had driven “in a manner
that endangers the safety of persons or property.” In Smith,
no one had seen the defendant drive, and she reasoned that
“proof that she was intoxicated simply is not sufficient by
itself to establish anything about the manner in which she
was actually driving at the time.” Id. We disagreed, reasoning that the extent of her intoxication, the fact that she had
parked her car on the on-ramp and then stood outside her
car impeding traffic, and that she had been driving in rush
hour while severely intoxicated permitted the trial court
reasonably to infer that she had been driving in a manner
that endangered the safety of persons or property. Id. at
572-73.8
In this case, as in Smith, defendant’s level of intoxication was quite high, although not as high as the defendant’s in Smith. Unlike Smith, however, there was direct
evidence in this case of the manner in which defendant had
been driving. As discussed above, given the exhibit illustrating defendant’s line of travel, a reasonable trier of fact
could infer that, when defendant turned onto 12th Street,
he grazed or nearly hit the curb on the left (or wrong) side of
the intersection, he turned directly into the lane for oncoming traffic, and drove a substantial distance in that lane—a
manner of driving that posed a substantial and unjustified
risk to other persons and property. Moreover, as in Smith,
the trier of fact reasonably could infer from defendant’s high
level of intoxication and his lack of coordination on getting
out of his car, that his intoxication exacerbated the dangers
posed by his manner of driving. Specifically, a reasonable
8
The charge of reckless driving turns on the manner in which a person
drives his or her car. It follows that where the defendant in Smith parked her
car and how she stood once she stepped out of her car (and the resulting danger
those acts posed to other motorists) were relevant primarily to the extent that
they permitted a reasonable inference that she previously had driven in a similar
manner—namely, with a similar indifference to the safety of other drivers. 218
Or App at 572-73.
652 State v. Brown
trier of fact could infer that defendant lacked the awareness
and physical skills to perceive and avoid harming others. In
short, we disagree with the factual premise of defendant’s
argument that his manner of driving did not pose a substantial risk of harm to persons or property.
Defendant appears to advance an alternative argument. He suggests that he can be found guilty of reckless
driving only if there is evidence that he either hit or barely
missed an identified person or object. On that issue, the
reckless driving statute prohibits driving “in a manner that
endangers the safety of persons or property.” ORS 811.140(1).
The text of the statute focuses on the “manner” in which a
person drives, not on the consequences of the person’s driving. See Morehouse, 350 Or at 330 (stating that proposition).
To be sure, a person must drive in a manner “that endangers the safety of persons or property.” However, as the use
of the word “endanger” suggests, the manner in which a person drives need only pose a risk of harm. See Webster’s Third
New Int’l Dictionary 748 (unabridged ed 2002) (defining the
term “endanger” as meaning “to bring into danger or peril
of probable harm or loss”). Beyond that, the text does not
require proof that a person’s driving endangered an identified person or object. Rather, it refers more generally to
endangering “persons or property.”
The cases interpreting the reckless driving statute shed additional light on the issue. In Morehouse, the
Supreme Court clarified the degree of risk that the state
must prove to establish that a defendant’s manner of driving
endangers the safety of persons or property. 350 Or at 329.
Looking to the definition of “recklessly,” the court explained
that the state must prove that a person was aware that his
or her manner of driving posed a “ ‘substantial and unjustified risk’ of endangering persons or property.” 9
Id. At the
9
At first blush, it might seem unusual to look to the definition of “recklessly”
to determine the extent to which the manner of a defendant’s driving “endangered” the safety of persons or property. However, the court explained that, as
used in the reckless driving statute, the definition of “recklessly” specifies that
(1) a person must be aware of and consciously disregard (2) a substantial and
unjustified risk that the person’s manner of driving endangered the safety of
persons or property. Morehouse, 350 Or at 330. As Morehouse suggests, the second
part of the definition of “recklessly” identifies the degree of risk required to establish that the manner in which a person drove endangered the safety of persons or
Cite as
305 Or App 644 (2020) 653
same time, the court was careful to make clear that “a violation of the reckless driving statute does not require that
there be a substantial risk of the consequence that actually
occurred as a result of [the] defendant’s conduct.”
Id. at 329-
30 (emphasis in original). As the court explained, the relevant risk of harm for the purposes of the reckless driving
statute is “ ‘endanger[ing] the safety of persons or property’
… [by] driving in the manner that [the defendant] did, and
not necessarily the specific consequence” of the manner in
which the defendant drove.
Id. at 330.
In that respect, Morehouse is consistent with our
decision in Smith, where we upheld the defendant’s conviction even though there was no direct evidence that the defendant had actually hit or nearly missed an identified person or object. It was sufficient, we concluded, that the trial
court could infer that the manner of the defendant’s driving
created a substantial risk of endangering persons or property. See Smith, 218 Or App at 572 (citing State v. Mojarro-Sandoval,
208 Or App 178, 180,
144 P3d 996, rev den,
342
Or 117 (2006)). In this case, as in Smith, there is no direct
evidence whether other persons were driving or walking in
the area near Glacier Avenue and 12th Street. However, the
trial court reasonably could infer that defendant was driving in a commercial area close to downtown that had low
posted speeds to protect pedestrians and others frequenting
the businesses in the area. The court also could infer that,
while some of the businesses identified on state’s Exhibit 1
would be closed at 10:30 p.m. on a Friday evening in June,
people would be frequenting the restaurants on Highland
Avenue—the street towards which defendant was headed
when he turned left onto 12th Street.10 Put differently, the
trial court reasonably could infer that defendant’s manner
of driving posed a substantial and unjustified risk to the
vehicles and pedestrians frequenting the restaurants open
on a Friday evening in June, as well as the adjacent property when defendant almost ran off the road at the corner
of Glacier Avenue and 12th Street. On this record, the trial
property. See
id. at 331 (distinguishing the likelihood of risk necessary to prove
reckless driving from that required to prove careless driving).
10
When defendant turned onto 12th Street from Glacier Avenue, he was
headed towards Highland Avenue, only a block away.
654 State v. Brown
court correctly denied defendant’s motion for a judgment of
acquittal on the reckless driving charge.
Affirmed.
AOYAGI, J., dissenting.
I generally agree with the majority’s legal analysis,
including recognizing that some traffic violations that would
not otherwise constitute reckless driving may rise to the
level of reckless driving when committed by an extremely
intoxicated driver like defendant. I disagree only with the
application of the law to the facts of this particular case. As
such, I respectfully dissent.
Around 10:20 p.m. on a Friday night in Redmond,
defendant was driving down a one-way street at a lawful
rate of speed—15 to 18 miles per hour, where the maximum
speed limit was 25 miles per hour—when he cut a corner
while turning left onto a two-way side street. As described
by the police officer who saw it, defendant “cut this corner
short, took a sharp corner.” The record contains a photograph of the intersection, marked with a black pen by the
officer at trial to show the path of defendant’s vehicle:
Cite as 305 Or App 644 (2020) 655
I fully agree with the majority that a person may
drive “in a manner that endangers the safety of persons or
property,” ORS 811.140(1), even if no person is injured and
no property is damaged. That is, it is absolutely correct that
the statute pertains to the risk created by the manner of
driving, not the realized consequences. But risks cannot be
assessed in a vacuum—they require consideration of the
actual circumstances in which conduct occurs. To put it in
extreme terms, driving (including the commission of traffic
violations) that might recklessly endanger persons or property if performed on a major highway during rush hour, in a
school zone with children present, or in a crowded pedestrian
area might not recklessly endanger persons or property if
performed in a vacant parking lot or on a deserted road in
the middle of the night. Of course, this case falls somewhere
between those extremes—defendant was turning onto a side
street near the downtown of a small city around 10:20 p.m.
on a Friday night—but the point is that the actual circumstances matter to whether a person’s driving is reckless.1
That point is even more stark with respect to pedestrians in crosswalks. Driving through a crosswalk might be
reckless if someone is entering or in the crosswalk, but it
is entirely ordinary when that is not the case. Indeed, one
must drive through crosswalks regularly to get anywhere.
If it is readily apparent that no one is entering or in a crosswalk, how can driving through the crosswalk nonetheless
be deemed reckless on the basis that it endangers a theoretical nonexistent pedestrian? If we create a legal fiction in
which all crosswalks are filled with theoretical pedestrians,
then virtually all driving is reckless. But we do not normally
create such a legal fiction. If defendant had made a perfect
1
In the analogous context of the crime of reckless endangerment, ORS
163.195(1), compare State v. Harbert, 155 Or App 137,
963 P2d 710, rev den,
327
Or 554 (1998) (recognizing that “ORS 163.195(1) was intended to cover potential
risks as well as cases where a specific person is within the zone of danger,” and
affirming the defendant’s conviction for reckless endangerment, where he shot a
gun 15 times at the ceiling and front door of his lower-floor duplex in Portland at
10 p.m. on a Friday night without knowing whether anyone was upstairs or outside (internal quotation marks omitted)); with State v. Wakefield,
292 Or App 694,
425 P3d 491 (2018) (distinguishing Harbert, and reversing conviction for reckless
endangerment, where the defendant shot a slingshot at a bus shelter when it was
vacant and no one was in the immediate vicinity, such that no one was in the
“zone of danger” and there was no real likelihood of anyone being hit).
656 State v. Brown
90-degree left turn while no one was in the crosswalk, we
could not (and would not) say that he recklessly endangered
theoretical pedestrians. I see no reason for a different result
because he cut the corner and therefore drove through a different section of the empty crosswalk.
The essential point is that the creation of risk
must be assessed based on the defendant’s actual circumstances objectively considered (including the recognition of
unknowns), not hypothetical circumstances that affirmatively did not exist. In this case, if another vehicle had been
coming down the side street onto which defendant turned,
or if a pedestrian had been in or near the crosswalk, or if the
corner had been blind or otherwise laid out such that defendant could not see whether another driver or pedestrian was
present, then I would readily conclude that the evidence was
sufficient to convict defendant of reckless driving for cutting
the corner—regardless of whether defendant actually hit
anyone.2 However, that is not the case. There is no evidence
of an oncoming vehicle, a nearby pedestrian, or any inability
to see such a vehicle or pedestrian. Cutting a corner may
recklessly endanger persons or property if other persons are
present or could be present, but I do not see how cutting a
corner constitutes reckless endangerment when it is visibly
apparent that no one is present.
In sum, defendant cut a corner at a slow speed while
turning left from the far-left lane of a one-way street onto
a side street near the downtown core of a small city around
10:20 p.m. on a Friday night. There is no evidence that
anyone was on the side street or in the crosswalk or that
the street layout prevented defendant from seeing whether
someone was on the street or in the crosswalk. Given his rate
of speed and the short distance that he travelled,3 defendant
2
Cf. Morehouse v. Haynes, 350 Or 318, 328-29,
253 P3d 1068 (2011) (holding
that a dispute of material fact existed as to whether the plaintiff had driven
recklessly, for purposes of a civil claim, where he crossed over a road’s center
line while driving 45 to 50 miles per hour on a curve with a suggested speed of
25 miles per hour and chose that moment to adjust his radio, given defendant’s
familiarity with the road and “the cautionary signs and the physical features of
the curve”).
3
I disagree with the majority’s characterization of defendant as having traveled a “substantial distance” in the wrong lane. 305 Or App at 650, 651. As the
officer testified, defendant cut a sharp corner. The distance he traveled was the
Cite as 305 Or App 644 (2020) 657
would have been out of his lane for no more than a second
or two. Although defendant’s drunkenness is certainly relevant, it is not, in my view, enough to transform this particular traffic violation into reckless driving. Defendant was
appropriately convicted of driving under the influence of
intoxicants, and he presumably could have been cited for
a traffic violation for his sharp turn, but the evidence was
insufficient to convict him of the crime of reckless driving.
Accordingly, I would reverse the reckless driving conviction
and, respectfully, dissent.
distance inherent in cutting a sharp corner, as is apparent from the photo on
which the officer drew defendant’s path of travel.
