No. 573 August 14, 2024 409
This is a nonprecedential memorandum opinion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.
ERIK IGOREVICH CHUMACHENKO,
Defendant-Appellant.
Clackamas County Circuit Court
19CR10687; A176916
Katherine E. Weber, Judge.
Submitted February 5, 2024.
David J. Celuch filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
410 State v. Chumachenko
HELLMAN, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010.
In a single assignment of error, defendant argues that the
trial court erred when it denied his motion for judgment of
acquittal (MJOA) because the state failed to prove that he
had been driving. For the following reasons, we affirm.
When reviewing the denial of an MJOA, “[w]e view
the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable
inferences, could have found the essential elements of the
crime proved beyond a reasonable doubt.” State v. Hall, 327
Or 568, 570,
966 P2d 208 (1998). We state the facts consistently with that standard.
At trial, the trooper who arrested defendant was the
state’s only witness. The trooper testified that he responded
to a report of a car crash on a highway and observed that
“only one vehicle was involved and there was no other vehicles there.” The trooper noticed that the car was partially
blocking a turn lane and that the car’s front bumper had
been “shoved in the back seat.” Defendant was in the back of
an ambulance. After the paramedics left, the trooper asked
defendant if he was injured, what direction he was traveling
in, and what had happened. Defendant stated that he was
coming from a friend’s house, that he had turned too early,
and that he drove into a ditch. During that conversation,
the trooper noticed the odor of alcohol on defendant’s breath
and that defendant’s eyes were “bloodshot and glassy,” so he
asked defendant if he had been drinking. Defendant said
that he had a sip of an alcoholic beverage earlier that evening. The trooper then asked defendant if he would perform
field sobriety tests. After defendant performed the tests, the
trooper placed defendant under arrest for DUII. The trooper
then searched the car and found defendant’s driver’s license
in the center console. When the state rested its case, defendant moved for acquittal, contending that the state could not
“corroborate the element of driving.” The trial court denied
the motion, and the jury found defendant guilty. This appeal
followed.
Nonprecedential Memo Op: 334 Or App 409 (2024) 411
On appeal, defendant contends that the state failed
to prove that he had been driving.1 Specifically, defendant
argues that his statements to the trooper that he had driven
to the crash site constituted an uncorroborated confession that could not support a conviction and that the state
offered no other evidence that defendant had been driving.
In response, the state argues that, under State v. Manzella,
306 Or 303,
759 P2d 1078 (1988), and State v. Hurtado,
287
Or App 1,
401 P3d 1279, rev den,
362 Or 208 (2017), defendant’s statements constituted legally sufficient evidence
because they were admissions, not a confession. We agree
with the state’s argument.
Under ORS 136.425(2), “a confession alone is not
sufficient to warrant the conviction of the defendant without
some other proof that the crime has been committed.” The
Supreme Court has explained that “a ‘confession’ must have
been made after the commission of the crime in question, for
the purpose of acknowledging that the speaker is guilty of
some criminal offense.” Manzella, 306 Or at 316. In contrast,
a statement that is “made for some purpose other than to
acknowledge guilt” and that is “not so closely related to [a]
confession to be a part of it” constitutes an admission.
Id. An
admission does not require corroboration and can be used to
prove a case against a defendant. Id.; Hurtado,
287 Or App
at 6.
We applied that distinction in Hurtado. In that
case, the defendant argued that his “statements expressly
stating that he was the driver of the car and his statements
indirectly indicating that he was driving” constituted an
uncorroborated confession. 287 Or App at 4. We concluded
that the statements were admissions:
“[The] defendant’s statements were responses to questions that [the officers] asked in order to assess the circumstances of the reported vehicle crash: Who was driving
which vehicle? Who did the vehicles belong to? Why were
the cars on the side of the road? … The record does not
support a determination that the purpose of defendant’s
answers to the officers’ investigatory questions was to
acknowledge guilt of a crime. In other words, conduct such
1
“DUII … require[s] proof that the defendant was the driver of the vehicle.”
State v. Hurtado, 287 Or App 1, 5,
401 P3d 1279, rev den,
362 Or 208 (2017).
412 State v. Chumachenko
as driving, pulling off to the side of the road, and damaging
property do not necessarily constitute the crimes of driving
recklessly or DUII.”
Id. at 7 (emphasis in original).
Hurtado is instructive here. Like the officers in
Hurtado, the trooper asked his initial questions—including what direction defendant was travelling in and what
happened—to assess a reported car crash. Defendant’s
responses to those questions—including that he had turned
too early and drove into a ditch—describe conduct that
“[does] not necessarily constitute the crime[ ] of … DUII.”
Id. Because the record does not support a determination that
defendant responded to the trooper’s initial questions for the
purpose of acknowledging guilt of a crime, we conclude that
those statements constituted admissions that could be used
to prove that he had been driving. See id. (“[B]ecause defendant’s statements were admissions, not a confession, they
could be used to prove the case against him for driving recklessly and under the influence of intoxicants.”); Manzella,
306 Or at 316 (concluding that the defendant’s statement
that he had been rear-ended while waiting to turn was not
a confession and “could be used to provide some proof, other
than the confession, that [the] defendant had been driving”
because the defendant “did not make that statement for the
purpose of acknowledging guilt; he made it to further [the
officer’s] investigation of an automobile accident”).
In sum, viewing the evidence in the light most
favorable to the state, we conclude that a rational trier of
fact could have found that defendant had been driving. The
trial court did not err when it denied the MJOA.
Affirmed.
