Oregon Judicial Department Appellate Court Opinions
FILED: April 20, 2005
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Respondent,
v.
DUANE DALLES SCHLENDER,
Appellant.
20 02 18522; A120594
Appeal from Circuit Court, Lane County.
Maurice K. Merten, Judge.
Argued and submitted September 28, 2004.
Ingrid A. MacFarlane argued the cause and filed the brief for appellant.
Jennifer Lloyd, Assistant Attorney General, argued the cause for respondent. On
the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor
General, and Jill Smith, Assistant Attorney General.
Before Landau, Presiding Judge, and Brewer, Chief Judge,* and Deits, Judge pro
tempore.
DEITS, J. pro tempore.
Affirmed.
*Brewer, C. J., vice Leeson, J. pro tempore.
DEITS, J. pro tempore
Defendant appeals a judgment of conviction for second-degree
manslaughter, ORS 163.125. He argues that the trial court erred in denying his motion
for a judgment of acquittal, because the state introduced insufficient evidence that he
acted recklessly. We review the trial court's ruling for errors of law, viewing the evidence
in the light most favorable to the state to determine whether any rational trier of fact could
have found beyond a reasonable doubt that defendant acted recklessly. State v. King, 307
Or 332, 339, 768 P2d 391 (1989). We affirm.
In an attempt to take his own life, defendant drove his car at 40-45 miles per
hour through the wall of the Roaring Rapids Pizza restaurant. His car struck and killed a
janitor who was working inside. The crash occurred at approximately 7:50 a.m., about 40
minutes before the restaurant's other employees usually arrive for work. Defendant was
charged with reckless driving, criminal mischief, and manslaughter in the second degree--that is, recklessly causing the death of another. ORS 163.125(1)(a). Defendant conceded
at trial that he was guilty of the first two offenses. The only disputed issue at trial was
whether he was reckless or, as he argued, merely negligent. That issue turned on whether
defendant was aware of and consciously disregarded a substantial and unjustifiable risk
that driving his car into the pizza parlor would kill someone. See ORS 161.085(9)
(defining recklessness).
In its case-in-chief, the state presented evidence that defendant sat in the
parking lot for several minutes before crashing his car into the building and that, during
that time, the victim was walking around inside the pizza parlor and was visible through
the front windows of the restaurant. In addition, there was evidence that several vans,
including the victim's, were parked in the pizza parlor's parking lot and that there were a
number of lights on inside the restaurant that would have been visible from the parking
lot. A police officer also testified that, after the accident, defendant "acknowledged that,
yes, janitors do--you know, do work at odd hours in the building." Also, according to the
officer's testimony, defendant "acknowledged that there's the possibility there could have
been somebody in the building." Finally, the officer testified that defendant "said he
knew that--maybe he knew somebody was in the building but he never saw anybody in it
or around it * * *."
At trial, defendant testified that he had no idea that there was anyone in the
building. He admitted making the above statements to the testifying officer, but he
explained that, although he knew somewhere in the back of his mind that janitors work at
all hours, he just was not thinking about that at the time of the accident. Defendant said
that he saw the delivery vans but thought that they had been left there unattended
overnight. He testified that he did not see the victim's van because there was a tree
obscuring his view of it. He asserted that, if he had seen the victim's van, he would not
have driven his car through the wall. He also acknowledged that he saw the lights on in
the restaurant, but he thought that they were security lights. Defendant explained that he
did not see the victim walking around inside the pizza parlor in the minutes leading up to
the accident because he was writing a suicide note and had his head down.
To rebut defendant's testimony, the state offered testimony from a janitor
who had occasionally worked at the restaurant with the victim. The janitor testified that,
if defendant was parked where he claimed he was, he should have been able to see the
victim's van. The janitor agreed that there is a tree near the parking lot, but he said that
the tree is far to the left of where defendant parked, whereas the van and the front
windows of the pizza parlor would have been directly in front of defendant. The janitor
also confirmed that defendant should have been able to see the lights on in the restaurant
and the victim walking around inside. Indeed, he stated that, when he and the victim
cleaned the restaurant, it was well lit and that he has seen people walking around inside
the restaurant from the street, which is all the way across the parking lot.
The jury convicted defendant on all three charges. Defendant argues on
appeal that, on the charge of second-degree manslaughter, there was insufficient evidence
of his recklessness to go to the jury and that his motion for a judgment of acquittal should
have been granted. On appeal, we will uphold a conviction if the evidence and all
reasonable inferences flowing from it would enable a rational trier of fact to find the
essential elements of the offense beyond a reasonable doubt. King, 307 Or at 339. In
reviewing the evidence, we treat all conflicts in the evidence as if they had been decided
in the state's favor, State v. Krummacher, 269 Or 125, 137, 523 P2d 1009 (1974), and
defer to any credibility determinations that the jury may have made, State v. Walters, 311
Or 80, 82, 804 P2d 1164, cert den, 501 US 1209, 111 S Ct 2807 (1991). "Our decision is
not whether we believe defendant is guilty beyond a reasonable doubt, but whether the
evidence is sufficient for a jury so to find." Krummacher, 269 Or at 138.
As discussed above, a person commits manslaughter in the second degree
when the person recklessly causes the death of another human being without justification
or excuse. ORS 163.125(1)(a) (criminal homicide constitutes manslaughter in the second
degree when it is committed recklessly); ORS 163.005(1) (criminal homicide is causing
the death of another human being with a culpable mental state and without justification or
excuse). ORS 161.085(9) defines recklessly as follows:
"'Recklessly,' when used with respect to a result or to a circumstance
described by a statute defining an offense, means that a person is aware of
and consciously disregards 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 disregard thereof constitutes a gross deviation from the
standard of care that a reasonable person would observe in the situation."
There is no doubt that defendant's conduct caused the death of another
human being. Additionally, defendant does not contest that driving his car through the
wall of a building created a risk of such nature and degree that disregard thereof
constituted a gross deviation of the standard of care that a reasonable person would
observe in the situation. The only question is whether there is evidence from which a
rational juror could infer that defendant was aware of and disregarded a substantial risk
that his conduct would cause someone's death.
Because the statute requires that defendant be aware of the risk, our inquiry
must focus on defendant's actual perceptions at the time of the crash. State v. Curtiss, 193
Or App 348, 352-53, 89 P3d 1262, rev den, 337 Or 282 (2004). However, a finding of
recklessness does not require a finding that defendant knew that someone was in the
building. The statute requires only awareness of a substantial risk that someone could be
in the building and be killed. A factfinder may infer from circumstantial evidence that a
defendant was aware of a substantial risk, so long as that inference reasonably flows from
the predicate facts. State v. McBean, 189 Or App 235, 241, 74 P3d 1127 (2003).
Defendant argues that the facts in this case resemble those in McBean,
where we held that an inference of recklessness did not reasonably flow from the
predicate facts. In McBean, the defendant's friend set some grass on fire with his cigarette
lighter. The defendant stomped on the fire, in what he later characterized as an attempt to
put it out. Instead, the fire spread. The defendant was convicted of reckless burning. On
appeal, the state argued that the following facts constituted sufficient evidence of
recklessness: (1) the defendant was aware that his friend had started two fires earlier in
the week, (2) the defendant reported neither the earlier fires nor the third, and (3) the
defendant equivocated about whether he saw that his friend was carrying a cigarette
lighter. We concluded that those facts bore no logical relationship to the defendant's state
of mind when he stomped on the fire. Accordingly, we held that the evidence there was
insufficient to establish recklessness. Id. at 242.
Defendant argues that, as in McBean, there was no evidence that he was
aware of a substantial risk that driving his car through the wall of the restaurant would
cause another human being's death. We disagree. The state offered both direct and
indirect evidence of defendant's culpable mental state. As noted above, a police officer
testified that defendant said that "maybe he knew someone was in the building." Further,
both the officer and defendant testified that defendant was aware that people work at all
hours in buildings that contain regularly operating businesses. The state also presented
evidence that defendant would have been able to see several lights on in the restaurant,
the victim's van parked out front, and the victim himself walking around inside the
restaurant. Unlike the facts in McBean, the facts in this case logically and directly support
an inference that defendant saw signs of life in and around the building and realized that
there was a substantial possibility that someone was inside.
Cf. State v. Petersen, 17 Or
App 478, 487, 522 P2d 912, rev'd in part on other grounds, 270 Or 166, 526 P2d 1008
(1974) (jury could infer that the defendant drag-racer was aware of a substantial risk of
causing death where evidence indicated that he was familiar with automobiles and
automobile racing and defendant acknowledged that he knew at the time that he should
not have engaged in the race).
Although defendant's testimony--that he did not see the victim or the
victim's van--as well as other circumstances--such as defendant's apparent shock upon
learning of the victim's death--supported a contrary inference, it was up to the jury to
choose among those competing inferences. State v. Bivins, 191 Or App 460, 467, 83 P3d
379 (2004) ("[T]he established facts may support multiple reasonable inferences and, if
they do, which inference to draw is for the jury to decide."). Moreover, the jury was not
required to believe defendant's testimony. See Hindman v. Coy, 207 Or 279, 284, 295
P2d 1097 (1956) ( jury is the sole judge of credibility and is entitled to disbelieve any
witness).
In sum, when viewed in the light most favorable to the state, the evidence in
this case was sufficient for a rational juror to find that defendant was aware of and
disregarded a substantial risk that there was someone inside the restaurant who could be
killed by his conduct.
Accordingly, the trial court did not err in denying defendant's
motion for a judgment of acquittal.
Affirmed.
