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City of Beaverton v. Pack

Court of Appeals of Oregon

April 16, 2014

CITY OF BEAVERTON, Plaintiff, and STATE OF OREGON, Respondent,
v.
GEORGE WILLIS DEVON PACK, Defendant-Appellant

Submitted: November 26, 2013.

Beaverton Municipal Court. UC7591381. Les Rink, Judge pro tempore.

Peter Gartlan, Chief Defender, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

OPINION

Page 568

[262 Or.App. 289] HADLOCK, J.

Defendant appeals his conviction for failure to perform the duties of a driver, challenging the adequacy of the jury instructions delivered by the trial court. In particular, defendant contends that the trial court erroneously instructed the jury " that the state needed only to prove that defendant had a culpable mental state with respect to the occurrence of the collision and that no mental state applied to the damage element" of the crime. We disagree with the basic premise of defendant's argument, viz., that the court instructed the jury that the state was not required to prove that defendant had a culpable mental state with respect to whether the vehicle he struck had sustained damage. In our view, the challenged jury instruction--considered together with the other instructions given--informed the jury that a mental-state requirement (here, knowledge) did apply to the " damage element" of the charged crime. Consequently, we affirm.

" We review the jury instructions for errors of law." State v. Pierce, 235 Or.App. 372, 374, 232 P.3d 978 (2010). In doing so, we consider the entirety of the instructions given--both when determining whether the trial court erred in giving a specific challenged instruction and in determining whether any such error was prejudicial. See State v. Woodman, 341 Ore. 105, 118, 138 P.3d 1 (2006) (" In determining whether it was error to give a particular instruction, we read the instructions as a whole to determine whether they state the law accurately." ); Pierce, 235 Or.App. at 374 (" In determining whether an instructional error requires reversal, we assess potential prejudice by considering the jury instructions as a whole." ). Moreover, " [b]ecause defendant is challenging the trial court's jury instructions, and not the sufficiency of the evidence supporting his conviction, we review all pertinent parts of the record." State v. Naudain, 254 Or.App. 1, 2, 292 P.3d 623 (2012), rev den, 353 Ore. 788, 304 P.3d 467 (2013). Accordingly, we describe the evidence as it was presented at the jury trial.

Defendant was arrested the day after a minor motor-vehicle accident occurred in the parking lot associated with the apartment complex where he lived. On the day [262 Or.App. 290] of the accident, a few employees of a landscaping company had traveled in the company's truck to work at that apartment complex. One of the employees testified that he heard a noise as he was working about 10 feet away from the landscaping company's truck. He looked at the truck and saw that it " was moving" even though nobody was in it. At about the same time, he saw a red Nissan Sentra leaving the parking area. He tried to approach the car, but it left too fast for him to reach. Another of the landscaping company's employees testified that the red Nissan had left the parking lot " in a hurry." A third employee testified that the company's truck was damaged (" a little bit bent * * * on top of the tire" ), and he called the police to report that somebody had hit the truck. None of the employees actually saw the impact.

The day after the accident, Beaverton police officer Christopher Crosslin spoke with defendant, who said that he was the only person who had driven the red Nissan the previous day and that he did not remember having hit anybody with his car.[1] Crosslin and defendant went out to the parking lot to

Page 569

look at defendant's car, which was not parked in defendant's normal parking space. Defendant explained that he had parked further away from his apartment to get some exercise.

After further discussion, Crosslin read defendant his Miranda rights, which defendant said he understood. Crosslin then " challenged" defendant, saying that he did not believe what defendant was telling him and asking defendant to be honest. According to Crosslin, defendant eventually acknowledged that " there may have been a tap to the complainant's vehicle as he was backing out of his parking spot yesterday." Crosslin again asked defendant why he had not parked in his usual parking spot when he returned to the apartment complex. Defendant " initially maintained that he wanted to get exercise, but then eventually said, 'I was worried about the probability of getting caught.'" Crosslin then cited defendant for failing to perform the duties of a driver, in violation of ORS 811.700.

[262 Or.App. 291] Defendant testified in his own behalf at trial, explaining that he had been under a great deal of stress at the time of the incident and had been in a hurry to get to a library where he was studying for a professional examination. Defendant also testified that his hearing had been impaired at the time of the incident by a severe buildup of earwax. At least in part because of that, he asserted, he had not immediately realized that his car had hit the landscaping company's truck. Defendant also testified that he had parked his car away from his normal spot when he returned to the apartment complex so he could get exercise, not because he was trying to hide anything. In answer to Crosslin's testimony, defendant acknowledged that he had understood the questions that Crosslin asked him on the day after the accident, and defendant testified that he had answered those questions honestly. Defendant asserted that any ambiguity in his answers was the result of a lengthy interrogation by Crosslin and the way in which the officer had phrased his questions. Defendant acknowledged that " ultimately the evidence shows" that he did hit the pickup truck. He testified that he did not reach that conclusion--that he had probably bumped into the truck--until he was arrested.

Before trial, defendant and the state each submitted proposed jury instructions. The parties' requested instructions overlapped significantly; in particular, both parties requested the uniform instruction that describes the elements of the crime of failure to perform the duties of a driver when property is damaged, as defined by ORS 811.700.[2] Although ORS 811.700 does not itself specify a [262 Or.App. 292] culpable mental state, both parties asked the trial court to deliver an instruction that incorporated a " knowingly" mental state, and--in accordance with that request--the trial court gave this instruction:

" In this case to establish the crime of Failure to Perform the Duties of a Driver when property is damaged, the State must prove beyond a reasonable ...

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